CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, September 25, 2021

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Inside the Black Box of Prosecutor Discretion

The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University
377
2.

The Informed Jury

Washington University in St. Louis - School of Law and Wayne State University School of Law
333
3.

The Trump Executions

University of Texas School of Law
325
4.

Law, Fact, and Procedural Justice

University of Arkansas - School of Law
93
5.

Empathy and Remote Legal Proceedings

DePaul University - College of Law and Quinnipiac University - School of Law
81
6.

Challenging Jurors' Racism

University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law
76
7.

Rehabilitating Statistical Evidence

London School of Economics & Political Science (LSE) - London School of Economics
60
8.

Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter

University of California, Berkeley, School of Law,
60
9.

Extraordinary Circumstances and Extraordinary Writs: Equitable Tolling During the COVID-19 Pandemic and Beyond

University of Pennsylvania Carey Law School
49
10.

Objective Chance and the Rule against Character Evidence

Southern Methodist University - Dedman School of Law
47

September 25, 2021 | Permalink | Comments (0)

Friday, September 24, 2021

Kahn-Fogel on Standing and Fourth Amendment Traditionalism

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Standing in the Shadows of the New Fourth Amendment Traditionalism (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
 
In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.

September 24, 2021 | Permalink | Comments (0)

"SHADOWDRAGON: INSIDE THE SOCIAL MEDIA SURVEILLANCE SOFTWARE THAT CAN WATCH YOUR EVERY MOVE"

From The Intercept, via NACDL's news-of-interest:

The software, put out by a Wyoming company called ShadowDragon, allows police to suck in data from social media and other internet sources, including Amazon, dating apps, and the dark web, so they can identify persons of interest and map out their networks during investigations. By providing powerful searches of more than 120 different online platforms and a decade’s worth of archives, the company claims to speed up profiling work from months to minutes. ShadowDragon even claims its software can automatically adjust its monitoring and help predict violence and unrest. Michigan police acquired the software through a contract with another obscure online policing company named Kaseware for an “MSP Enterprise Criminal Intelligence System.”

. . . .

Kaseware and ShadowDragon are part of a shadowy industry of software firms that exploit what they call “open source intelligence,” or OSINT: the trails of information that people leave on the internet. Clients include intelligence agencies, government, police, corporations, and even schools.

September 24, 2021 | Permalink | Comments (0)

Thursday, September 23, 2021

Metzger & Guggenmos on COVID-19 and the Ruralization of Criminal Court Systems

Pamela Metzger and Gregory J. Guggenmos (Southern Methodist University - Dedman School of Law and Southern Methodist University - Dedman School of Law) have posted COVID-19 and the Ruralization of U.S. Criminal Court Systems (2020 University of Chicago Law Review Online 70 (2020)) on SSRN. Here is the abstract:
 
The COVID-19 pandemic is imposing typically rural practice constraints on the United States' urban and suburban criminal court systems. This "ruralization" of criminal practice offers lawyers, policymakers, and researchers a window into the challenges and opportunities that inhere in rural systems. This is no small matter. For decades, lawmakers, researchers, reformers, and philanthropists have overlooked, undertheorized, and underfunded rural criminal legal systems-and have done so at great peril. Nearly 20 percent of the nation's population lives in nonmetropolitan areas, where the opioid addiction crisis rages. Rural incarceration increasingly drives mass incarceration. The U.S. countryside warehouses the nation's prison populations, and rural pretrial detention rates continue to rise. Indeed, the success of criminal justice reforms depends in part on our ability to address the incarceration crisis in rural America.

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September 23, 2021 | Permalink | Comments (0)

"Federal appeals court: warrant required for police search of files reported by digital algorithm"

From Jurist:

The court’s opinion follows Apple’s announcement last month that it will scan iCloud photos of its users for child sexual abuse material and report suspected files to authorities. Privacy experts have criticized the move.

Tuesday’s ruling and Apple’s announcement raise broader questions about the intersection of algorithm-driven automatic scanning technology and privacy law. The Electronic Privacy Information Center said that the case “may lead the Supreme Court to review the important privacy implications of mass automatic file scanning programs.”

September 23, 2021 | Permalink | Comments (0)

Baer on Personhood, Procedure, and Corporate Compliance

Miriam H. Baer (Brooklyn Law School) has posted Personhood, Procedure and the Endurance of Corporate Compliance (Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman and Robert B. Thompson, eds.; Elgar, forthcoming)) on SSRN. Here is the abstract:
 
Over the past century, the Supreme Court has maintained a procedural framework that greatly eases the government’s burden in enforcing the substantive laws that regulate corporations and business entities. Concededly, it is still difficult to hold wrongdoers accountable for business related misconduct. Nevertheless, corporate constitutional procedure is rarely the roadblock preventing government prosecution.

Most of corporate criminal procedure’s ground rules arise of the Constitution’s Fourth and Fifth Amendments. The Supreme Court’s Fourth Amendment decisions permit government enforcers to avoid the costs of seeking and defending search warrants by instead serving broadly worded subpoena requests. Its Fifth Amendment precedents are even more important, as they bar business entities from claiming the privilege against self-incrimination.

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September 23, 2021 | Permalink | Comments (0)

Wednesday, September 22, 2021

"Two notable new Forbes pieces on the state of federal sentencing and clemency practices"

Wright on Multiple Causes

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Identifying and Assigning Liability Among Multiple Legally Responsible Causes (Rechtstheorie Journal 2021) on SSRN. Here is the abstract:
 
This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibilty and ultimate liability issues, and briefly discusses the legal responsibiliy and ultimate liability issues.

September 22, 2021 | Permalink | Comments (0)

"She Used Drugs While Pregnant. Should She Be in Prison? After having a stillbirth, Adora Perez was charged with murder."

From New York Magazine, via NACDL's news-of-interest:

Prosecutors in many states are increasingly sending people to prison for failing to sufficiently protect their fetus. Right now, those cases are largely restricted to punishing mothers who use illegal drugs, but reproductive-health advocates argue that they lay the groundwork for prosecuting parents who jaywalk or drink wine or even have abortions. As Adora’s case continues to play out, the Kings County district attorney’s office maintains an interpretation of the law that could shape the future of not only stillbirth cases but the rights of all people who can and do become pregnant.

September 22, 2021 | Permalink | Comments (0)

Tuesday, September 21, 2021

Baer on The Information Shortfalls of Prosecuting Irresponsible Executives

Miriam H. Baer (Brooklyn Law School) has posted The Information Shortfalls of Prosecuting Irresponsible Executives (DePaul Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which intensified after an internal report surfaced indicating career prosecutors would have preferred more serious charges.

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September 21, 2021 | Permalink | Comments (0)

"Dangerous New DOJ Policy On Chokeholds and “No-Knock” Warrants"

From Crime & Consequences. In part:

A new memo released from the Department of Justice (DOJ) by Attorney General Merrick Garland makes policy changes that have the potential to endanger the lives of federal agents, as well as the limit the seizure of criminal evidence.  According to the memo released September 14th, 2021, the DOJ is changing policy effective immediately regarding the use of chokeholds and “no-knock” warrants.  The change appears inspired by the deaths of George Floyd and Breonna Taylor.  Officer Derek Chauvin was convicted of causing Floyd’s death by using a form of a chokehold to pin him down after he resisted arrest.  Breonna Taylor died in a shootout which began when her current boyfriend shot at police executing a “no-knock” warrant to arrest her former boyfriend, drug dealer Jamarcus Glover.  

. . . .

Chokeholds, which are viewed as a necessary means to physically detain or restrain a suspect, and allowed for in the language provided by subsections 5 and 6 of 10 CFR 1047, can now only be used when conditions of deadly force are met. By stripping the ability to place a suspect in a chokehold who is running or resisting arrest, this policy change may increase the risk of injury or harm to federal officers, who will no longer be able to use this form of restraint when dealing with suspects who run, resist or fight.  This will also allow more suspects to escape.

“No-Knock” warrants are limited by the Garland memo to situations where knocking and announcing would create an imminent threat of physical violence to a federal agent or another person.  The memo does allow for a “no-knock” warrant regarding evidence, but only if it is evidence deemed essential to national security.

September 21, 2021 | Permalink | Comments (0)

"At the Supreme Court, a Plea to Reveal Secret Surveillance Rulings"

From Adam Liptak in The New York Times:

The justices are set to consider whether to hear that case, which was brought by the American Civil Liberties Union and concerns decisions issued by the Foreign Intelligence Surveillance Court, at their private conference on Oct. 8.

The case Judge Garland decided last year, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, and the one before the justices both involved electronic surveillance, but they concerned different laws and different legal theories.

His general point about secret law, though, provides an important framework, according to a brief supporting the A.C.L.U. in the new case filed by two groups that do not always agree — the Brennan Center for Justice, which leans left, and the Americans for Prosperity Foundation, a libertarian group affiliated with the Koch family.

September 21, 2021 | Permalink | Comments (0)

Monday, September 20, 2021

Indifference to a Human's Life vs. Human Life Generally

Here's a recent example of this odd (though not unique) and difficult-to-justify approach to homicide grading. Jurist reports on a recent Minnesota Supreme Court decision:

The Minnesota Supreme Court on Wednesday overturned the third-degree murder conviction of former Minneapolis police officer Mohamed Noor who fatally shot Justine Ruszczyk in 2017.

. . . .

In their opinion, the Supreme Court justices stated that, “because conduct that is directed with particularity at the person who is killed cannot evince a depraved mind, without regard for human life, Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstanced proved is that Noor directed his single shot with particularity at Ruszczyk,” the court concluded that Noor’s actions did not fit the definition of third-degree murder per the statute.

September 20, 2021 | Permalink | Comments (0)

Greasley on Rape Trauma and Rape's Wrongness

Kate Greasley (University of Oxford, Faculty of Law) has posted Rape Trauma and Rape's Wrongness (Forthcoming book From Morality to Law and Back Again: Liber Amicorum for John Gardner, edited by M. Dempsey and F. Tanguay-Renaud) on SSRN. Here is the abstract:
 
In a widely discussed article co-authored with Stephen Shute, John Gardner offered a persuasive argument to the effect that the core wrongness of rape is not, as it seems, a function of the harmfulness of rape, but of something else: the rapist’s sheer sexual use of the victim, which is potentially harmless. In subsequent writing, partly in response to criticisms, Gardner sought to restate and clarify his view about the role of rape trauma in rape’s wrongness. A guiding thought in both his earlier and later work is that the reasonableness of distress and anguish as a response to rape suggests that those reactions respond to and evaluate a prior, harm-independent wrong, thus revealed as the more basic wrong of rape. More strongly, he argued, we must hold that rape trauma is only epiphenomenal to, or derivative of, rape’s basic wrongness, if we are to affirm the rationality of rape victims. In this short reappraisal, I focus most attention on this intriguing argument. Drawing on a comparison with the wrong of emotional abuse, I interrogate the argument from reasonable reactions and consider how to soften the choice it presents between affirming the rationality of rape victims and allowing that rape trauma partly grounds the distinctive wrongness of rape.

September 20, 2021 | Permalink | Comments (0)

"European organizations urge Poland to change definition of rape and stop restricting press freedom"

From Jurist:

Several European organizations on Thursday called upon Poland to make changes to the legal definition of rape and condemned attacks on media and the free press.

The Council of Europe praised recent reforms allowing law enforcement to temporarily evict domestic abusers, but said that Poland should “align” its definition of rape with the requirements of the Istanbul Convention, urging the nation to “move away from a force-based definition to one covering all non-consensual sexual acts.” Of seventeen monitored countries, only Belgium, Malta, and Sweden have legal definitions that penalize rape based solely on non-consent. The Council noted that “Without a consent-based definition of rape in criminal law, prosecutors will ‘invariably decide’ against seeking an indictment in cases where the sexual act is undisputed, but consent is not.”

September 20, 2021 | Permalink | Comments (0)

Sunday, September 19, 2021

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Informed Jury

Washington University in St. Louis - School of Law and Wayne State University School of Law
263
2.

Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse

University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct
97
3.

Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter

University of Florida Levin College of Law
69
4.

Carceral Progressivism and Animal Victims

University of Colorado Law School
59
5.

Should be Marijuana Legalized in India?

Faculty of Law, Integral University
51
6.

Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan

Harvard University, Division of Continuing Education
50
7.

Restorative Retributivism

Seton Hall Law School
49
8.

Expanding Compassion Beyond the COVID-19 Pandemic

University of California, Irvine School of Law and American University - Washington College of Law
48
9.

Editor's Introduction: New Topics in Sentencing Theory

Michigan State University - College of Law
45
10.

The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending

Centre for Criminal Justice Studies, School of Law, University of Leeds
40

September 19, 2021 | Permalink | Comments (0)

Saturday, September 18, 2021

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Inside the Black Box of Prosecutor Discretion

The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University
352
2.

The Trump Executions

University of Texas School of Law
314
3.

The Informed Jury

Washington University in St. Louis - School of Law and Wayne State University School of Law
263
4.

Policing Suspicion: Qualified Immunity and 'Clearly Established' Standards of Proof

University of South Carolina School of Law, Clemson University, University of Nebraska Omaha and University of South Carolina
90
5.

Sex Offender Registration and Community Notification Laws: An Empirical Evaluation

Florida State University - College of Law and University of Michigan Law School
83
6.

Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives

The Ohio State University Moritz College of Law
78
7.

Transparency's AI Problem

Texas A&M University School of Law
77
8.

Challenging Jurors' Racism

University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law
73
9.

Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter

University of California, Berkeley, School of Law,
56
10.

Rehabilitating Statistical Evidence

London School of Economics & Political Science (LSE) - London School of Economics
55

September 18, 2021 | Permalink | Comments (0)

Friday, September 17, 2021

"White House Offers Clemency for Drug Offenders on Home Confinement, but Advocates Say Plan Will Still Send Thousands Back to Prison"

From at Reason, via NACDL's news-of-interest:

President Joe Biden's White House has started sending out clemency applications to thousands of federal drug offenders currently on home confinement due to the COVID-19 pandemic, Politico reported on Monday, but criminal justice advocates say the plan would still send thousands of offenders back to prison after they started putting their lives together again.

The federal Bureau of Prisons (BOP) released more than 20,000 inmates on home confinement last year under pandemic legislation called the CARES Act, but since then, it's been an open question of if and when they would have to return to prison after the pandemic ends. The New York Times first reported last month that the Biden administration, under pressure from advocates, was considering offering clemency to nonviolent federal drug offenders released to home confinement with four years or less remaining on their sentences.

September 17, 2021 | Permalink | Comments (0)

Steele on Alibi Defenses

Lisa Steele has posted Investigating and Presenting an Alibi Defense on SSRN. Here is the abstact:

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring?

In two-thirds of exoneration cases, the innocent defendant offered an alibi defense at trial which was rejected by the fact-finder. This article talks about alibi defenses from psychological research into the defendant's autobiographical memory and investigator tactics in the interrogation room, to alibi witnesses' memory and susceptibility to post-event information, to expected cross-examination and other courtroom issues.

September 17, 2021 | Permalink | Comments (1)

Thursday, September 16, 2021

"Mayor Lightfoot’s plan to use asset forfeiture to curb violence looks like an empty move"

From the Chicago Sun-Times, via NACDL's news-of-interest:

Mayor Lori Lightfoot’s new plan to seize the assets of gang members looks like a disturbing indication that her administration is in over its head when it comes to solving Chicago’s violent crime problem.

Last week, the mayor proposed an ordinance to allow authorities to use asset forfeiture laws to sue gang members and snatch up their valuables.

. . . . 

But asset seizures strike us as an outdated approach that might’ve worked in the 1980s against East Coast organized crime bosses and South Florida drug dealers, but would be virtually useless in curbing the violence on the streets of Chicago today — especially given that the violence is concentrated in poor neighborhoods where assets are few to begin with.

September 16, 2021 | Permalink | Comments (0)