CrimProf Blog

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

Wednesday, January 18, 2017

Robinson & Williams on Mapping American Criminal Law

Paul H. Robinson and Tyler Scot Williams (University of Pennsylvania Law School and University of Pennsylvania, Students) has posted MAPPING AMERICAN CRIMINAL LAW An Exploration of the Diversity Among the States: Ch. 20 Statutory Rape (In Paul H. Robinson and Tyler Scot Williams, MAPPING AMERICAN CRIMINAL LAW: AN EXPLORATION OF THE DIVERSITY AMONG THE STATES, Forthcoming) on SSRN. Here is the abstract:

It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is that the landscape of American criminal law is one of almost endless diversity, with few, if any, areas in which there is a consensus or near consensus. Even most American criminal law scholars seem to fail to appreciate the enormous diversity and disagreement among the fifty-two American jurisdictions.

Unfortunately, there has been little work done to map this enormous diversity among the states, perhaps because it is an extremely burdensome project. Every legal issue requires a major research project investigating the criminal codes and caselaw of all fifty-two American jurisdictions. While the paucity of such diversity research is understandable, it is nonetheless regrettable, for it is the matters of disagreement that often point to the most interesting issues for scholars.

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January 18, 2017 | Permalink | Comments (0)

Tuesday, January 17, 2017

Roth on Machine Testimony

Roth andreaAndrea L. Roth (University of California, Berkeley - School of Law) has posted Machine Testimony (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information — the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects it to testimonial safeguards — such as impeachment and the hearsay rule — to give juries the context necessary to assess the source’s credibility. But the law on machine conveyance is confused; courts shoehorn them into existing rules by treating them as “hearsay,” as “real evidence,” or as “methods” underlying human expert opinions. These attempts have not been wholly unsuccessful, but they are intellectually incoherent and fail to fully empower juries to assess machine credibility. This Article seeks to resolve this confusion and to offer a coherent framework for conceptualizing and regulating machine evidence. First, it explains that some machine evidence, like human testimony, depends on the credibility of a source. Just as so-called “hearsay dangers” lurk in human assertions, “black box dangers” — human and machine errors causing a machine to be false by design, inarticulate, or analytically unsound — potentially lurk in machine conveyances. Second, it offers a taxonomy of machine evidence, explaining which types implicate credibility and how courts have attempted to regulate them through existing law. Third, it offers a new vision of testimonial safeguards for machines. It explores credibility testing in the form of front-end design, input and operation protocols; pretrial disclosure and access rules; authentication and reliability rules; impeachment and courtroom testing mechanisms; jury instructions; and corroboration rules. And it explains why machine sources can be “witnesses” under the Sixth Amendment, refocusing the right of confrontation on meaningful impeachment. The Article concludes by suggesting how the decoupling of credibility testing from the prevailing courtroom-centered hearsay model could benefit the law of testimony more broadly.

January 17, 2017 | Permalink | Comments (0)

Robinson on Strict Liability's Criminogenic Effect

Robinson paulPaul H. Robinson (University of Pennsylvania Law School) has posted Strict Liability's Criminogenic Effect (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system's lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law's reputation for being just, which means avoiding the use of strict liability.

January 17, 2017 | Permalink | Comments (0)

Loughnan & Gless on Intoxicated Offending

Arlie Loughnan and Sabine Gless (University of Sydney - Faculty of Law and University of Basel) have posted Understanding the Law on Intoxicated Offending: Principle, Pragmatism and Legal Culture (Journal of International and Comparative Law, Vol. 3, No. 2, pp. 345-373, 2016) on SSRN. Here is the abstract:

The criminal law on intoxicated offending is notoriously complex and technical, featuring distinctive doctrinal constructs and exceptions to otherwise general rules. In order to contribute to scholarly understanding of the law on intoxicated offending, and with a focus on the law in Australia (Victoria and New South Wales), England and Wales, Germany and Switzerland, in this article, we present a two-part analysis of the law. First, we reveal the ways in which, in varying configurations, the legal rules on intoxicated offending in the civil and common law contexts are suspended across a tension between principle and pragmatism. Second, we explore the significance of legal culture — broadly, non-doctrinal components of the legal order including traditions, practices and institutions — making the case that dimensions of legal culture relating to intoxicated offending achieve a reconciliation of legal principles with pragmatic concerns to discourage drunken crime, thereby ameliorating the costs of honouring or attempting to honour legal principle when it comes to intoxicated offending.

January 17, 2017 | Permalink | Comments (0)

Cigno on Police Body Cameras

John Cigno (University of Connecticut - Connecticut Law Review) has posted Truth and Evidence: The Role of Police Officer Body Cameras in Reforming Connecticut's Criminal Justice System (49 Conn. L. Rev. 293 (2016)) on SSRN. Here is the abstract:

Unresolved animosity between the public and the police has given rise to an “Us vs. Them” mentality. This divisive mentality perpetuates itself as the public extrapolates anecdotal evidence of misconduct to justify condemnation of the law-enforcement community as a whole. In response, many within that community find themselves entrenched behind a “Blue Wall of Silence” in positions of collective self-defense, often to the detriment of their sworn duties. This animosity is a product of the public’s perception that police officers seem to be able to break the law with impunity. Although that perception is rooted in an incomplete understanding of qualified-immunity and excessive-force laws, it accurately reflects the de facto unfairness of the standards themselves. However, with the advent of modern body-camera technology it has become possible to effect criminal justice reform in a way that obviates legal anachronisms and thereby solves these problems at their source. Connecticut has taken important first steps towards this goal, but so far it has been unable to create lasting change. This Note advances three proposals that will allow Connecticut to bridge any remaining divide between its goals and its achievements, between its public and its police, and between truth and evidence.

January 17, 2017 | Permalink | Comments (0)

Monday, January 16, 2017

Lyon et al. on Child Witnesses

Thomas Lyon has posted two co-authored pieces on this subject on SSRN. The first is Stacia N. Stolzenberg, Kelly McWilliams and Thomas D. Lyon (Arizona State University (ASU) - School of Criminology & Criminal Justice, USC Gould School of Law and University of Southern California - Gould School of Law)), Spatial Language, Question Type, and Young Children's Ability to Describe Clothing: Legal and Developmental Implications (Forthcoming, Law and Human Behavior).  Here is the abstract:

Children’s descriptions of clothing placement and touching with respect to clothing are central to assessing child sexual abuse allegations. This study examined children’s ability to answer the types of questions attorneys and interviewers typically ask about clothing, using the most common spatial terms (on/off, outside/inside, over/under). Ninety-seven 3- to 6-year-olds were asked yes/no (e.g. “Is the shirt on?”), forced-choice (e.g., “Is the shirt on or off?”), open-choice (e.g., “Is the shirt on or off or something else?”), or where questions (e.g., “Where is the shirt?”) about clothing using a human figurine, clothing, and stickers. Across question types, children generally did well with simple clothing or sticker placement (e.g. pants completely on), except for yes/no questions about “over,” suggesting children had an under-inclusive understanding of the word. When clothing or sticker placement was intermediate (e.g., pants around ankles, and therefore neither completely on nor off), children performed poorly except when asked where questions. A similar task using only stickers and boxes, analogous to forensic interviewers’ assessments of children's understanding, was only weakly predictive of children’s ability to describe clothing. The results suggest that common methods of questioning young children about clothing may lead to substantial misinterpretation.

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January 16, 2017 | Permalink | Comments (0)

Sunday, January 15, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.Ssrn logo

Rank Downloads Paper Title
1 203 Bail Nullification
Jocelyn Simonson
Brooklyn Law School
Date posted to database: 5 Dec 2016
2 100 Crackdowns
Mila Sohoni
University of San Diego School of Law
Date posted to database: 5 Dec 2016 [4th last week]
3 82 From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
Anna Tzanaki
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017 [new to top ten]
4 68 TRAGEDY, OUTRAGE & REFORM Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes
Paul H. Robinson and Sarah M. Robinson
University of Pennsylvania Law School and Independent
Date posted to database: 3 Dec 2016 [5th last week]
5 63 Applying Analytic Reasoning to Clarify Intention and Responsibility in Joint Criminal Enterprise Cases
Anthony Amatrudo
Middlesex University - School of Law
Date posted to database: 18 Nov 2016 [6th last week]
6 58 Kriminalomsorgen: A Look at the World's Most Humane Prison System in Norway
Ryan Alexander Berger
Duke University, School of Law, Students
Date posted to database: 11 Dec 2016 [7th last week]
7 44 Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip
Kent Roach
University of Toronto - Faculty of Law
Date posted to database: 5 Jan 2017 [new to top ten]
8 40 The Canadian Charter and Criminal Justice
Don Stuart
Queen's University, Faculty of Law
Date posted to database: 18 Nov 2016 [10th last week]
9 40 The Community Politics of Domestic Violence
Deborah M. Weissman
University of North Carolina School of Law
Date posted to database: 8 Dec 2016 [new to top ten]
10 39 Voodoo Liability: Joint Enterprise Prosecution as an Aspect of Intensified Criminalisation
Peter Squires
University of Brighton
Date posted to database: 23 Nov 2016 [new to top ten]

January 15, 2017 | Permalink | Comments (0)

This week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:


  • Lynch v. Dimaya: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.


  • Hasty v. Abbasi: (1) Whether, as the Second Circuit held, the judicially implied cause of action for damages against individual officials recognized in Bivens v. Six Unknown Named of Federal Bureau of Narcotics, extends to detentions of foreign nationals after the September 11 attacks; (2) whether qualified immunity was property denied, notwithstanding the specific circumstances confronted by petitioners—including the FBI's terrorism designations for respondents—because the Constitution “clearly” prohibits any “condition of pretrial detention not reasonably related to a legitimate governmental objective,” or imposed “because of . . . race, ethnicity, religion, and/or national origin;” and (3) whether the allegations against Hasty and Sherman (the Warden and Associate Warden at the Metropolitan Detention Center)—such as the assertion that they “knew” the FBI's terrorism designations for respondents were wrong but imposed otherwise mandatory confinement conditions because they had discriminatory intent—are sufficiently plausible to state a claim under Ashcroft v. Iqbal.
  • Ziglar v. Abbasi: (1) Whether the Court of Appeals, in finding that Respondents' Fifth Amendment claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001 regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers; (2) whether the Court of Appeals, in denying qualified immunity to Petitioner Ziglar erred: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar's specific conduct was at the time clearly established, instead defining the “established law” at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law; and (3) whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal , and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims.
  • Ashcroft v. Abbasi: (1) Whether the judicially inferred damages remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, should be extended to the novel context of this case, which seeks to hold the former Attorney General and Director of the Federal Bureau of Investigation (FBI) personally liable for policy decisions made about national-security and immigration in the aftermath of the September 11, 2001 terrorist attacks; and (2) whether the former Attorney General and FBI Director are entitled to qualified immunity for their alleged role in the treatment of respondents, because it was not clearly established that aliens legitimately arrested during the September 11 investigation could not be held in restrictive conditions until the FBI confirmed that they had no connections with terrorism; and (3) whether respondents' allegations that the Attorney General and FBI Director personally condoned the implementation of facially constitutional policies because of an invidious animus against Arabs and Muslims are plausible, as required by Ashcroft v. Iqbal, in light of the obvious alternative explanation—identified by the Court in Iqbal—that their actions were motivated by a concern that, absent fuller investigation, the government would unwittingly permit a dangerous individual to leave the United States.

January 15, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 3,862 Do White Police Officers Unfairly Target Black Suspects?
John R. Lott and Carlisle E. Moody
Crime Prevention Research Center and College of William and Mary - Department of Economics
Date posted to database: 16 Nov 2016 
2 267 fMRI and Lie Detection
Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis,David L. Faigman, Morris B. Hoffman,Owen D. Jones, Read Montague,Stephen Morse, Marcus E. Raichle,Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Gideon Yaffe
Stanford University - Psychology, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Yale Law School
Date posted to database: 23 Dec 2016 [new to top ten]
3 203 Bail Nullification
Jocelyn Simonson
Brooklyn Law School
Date posted to database: 5 Dec 2016 
4 100 The Structure of Federal Public Defense: A Call for Independence
David Patton
Federal Defenders of New York
Date posted to database: 19 Dec 2016 
5 90 Adversarial Asymmetry in the Criminal Process
Daniel Epps
Washington University in St. Louis
Date posted to database: 1 Dec 2016
6 75 Critical Perspectives on Police, Policing, and Mass Incarceration
Richard Delgado and Jean Stefancic
University of Alabama - School of Law and University of Alabama - School of Law
Date posted to database: 30 Nov 2016 [8th last week]
7 73 Apple and the American Revolution: Remembering Why We Have the Fourth Amendment
Clark D. Cunningham
Georgia State University College of Law
Date posted to database: 6 Dec 2016 
8 70 The Right to Redemption: Juvenile Dispositions and Sentences
Katherine Hunt Federle
Ohio State University Moritz College of Law
Date posted to database: 30 Nov 2016 [9th last week]
9 64 Encountering Resistance: Contesting Policing and Procedural Justice
Eric J. Miller
Loyola Law School Los Angeles
Date posted to database: 12 Dec 2016 [10th last week]
10 63 The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century
Christopher Slobogin
Vanderbilt University - Law School
Date posted to database: 15 Dec 2016 [new to top ten]


January 15, 2017 | Permalink | Comments (0)

Friday, January 13, 2017

Burris on Comparative Drug Policy Research

Burris_scottScott Burris (Temple University - James E. Beasley School of Law) has posted Theory and Methods in Comparative Drug Policy Research: Response to a Review of the Literature (international Journal of Drug Policy (2016)) on SSRN. Here is the abstract:

Comparative drug policy analysis (CPA) is alive and well, and the emergence of robust alternatives to strict prohibition provides exciting research opportunities. As a multidisciplinary practice, however, CPA faces several methodological challenges. This commentary builds on a recent review of CPA by Ritter and colleagues to argue that the practice is hampered by a hazy definition of policy that leads to confusion in the specification and measurement of the phenomena being studied. This problem is aided and abetted by the all-too-common omission of theory from the conceptualization and presentation of research. Drawing on experience from the field of public health law research, this commentary suggests a distinction between empirical and non-empirical CPA, a simple taxonomic model of CPA policy-making, mapping, implementation and evaluation studies, a narrower definition of and rationale for “policy” research, a clear standard for measuring policy, and an expedient approach (and renewed commitment) to using theory explicitly in a multi-disciplinary practice. Strengthening CPA is crucial for the practice to have the impact on policy that good research can.

January 13, 2017 | Permalink | Comments (0)

Prisoners' Rights Listserv for Law Students and Young Lawyers

UCLA Law has started the project. The announcement follows the jump.

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January 13, 2017 | Permalink | Comments (0)

Thursday, January 12, 2017

Manikis on Victims' Rights

Marie Manikis (McGill Faculty of Law) has posted Imagining the Future of Victims’ Rights in Canada: A Comparative Perspective ((2015) 13(1) Ohio State Journal of Criminal Law 163-186) on SSRN. Here is the abstract:

The role of victims of crime in common law jurisdictions has significantly changed over the last few decades from that of simple bystanders and witnesses for the Crown - if needed - to more present and active participants in the criminal justice process. Despite this general trend towards increased participation, victim-related policies have evolved very differently in the different common law jurisdictions. The following piece examines the evolution of victims' rights in Canada and compares their development to those within other jurisdictions,particularly in England, Wales, and the United States. It argues that the evolution of several victims' rights has been incremental, generally slower and more limited in Canada as compared to other common law jurisdictions, namely England and Wales and the United States. Hence, it highlights the limitations of Canadian initiatives with regards to victims' rights and brings forward some of the different initiatives and their implementation in these other jurisdictions as possible measures to consider in shaping the future of victims' rights in Canada.

January 12, 2017 | Permalink | Comments (0)

Roach on Reforming and Resisting the Criminal Law

Roach kentKent Roach (University of Toronto - Faculty of Law) has posted Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip (Manitoba Law Journal, Vol. 39, No. 2, 2017) on SSRN. Here is the abstract:

This paper examines two Tragically Hip songs, 38 Years Old and Wheat Kings, with a view to understanding how they can be interpreted as a call both to reform and resist criminal law. In a reformist spirit, 38 Years Old can be interpreted as an imaginary hypothetical that suggests that judges should be able to devise exemptions from all mandatory sentences, including life imprisonment for murder. The song can also be interpreted as a demonstration that imprisonment must be resisted and endured by offenders and their families because it will always be violent and destructive. Wheat Kings similarly can be interpreted as a call to reform remedies for the wrongly convicted and to make legal determinations of innocence. At the same time, Wheat Kings exonerated David Milgaard in 1992 long before the Canadian legal system did. In doing so, it illustrates how art, like media and science, can resist the coercive conclusions of the criminal law and can make normative conclusions that can be seen as a form of law.

January 12, 2017 | Permalink | Comments (0)

Wednesday, January 11, 2017

Lurigio et al. on Mental Health Courts

Arthur Lurigio, Monte Stanton, Shanti Raman and Lorena Roque (Loyola University Chicago, Ball State University, affiliation not provided to SSRN and Loyola University Chicago) have posted A Statewide Examination of Mental Health Courts in Illinois: Program Characteristics and Operations (International Journal for Court Administration, Vol. 7, No. 1, 2015) on SSRN. Here is the abstract:

This study represents the only broad-based, statewide evaluation of mental health courts (MHCs) conducted to date. Data were collected from 2010 to 2013 at each of the nine active MHC program operating in Illinois at the start of the study. The purpose of the study was to compare and contrast the adjudicatory and supervisory models of each established Illinois MHC program by utilizing a variety of research methodologies. A four-year recidivism analysis of case-level data from three Illinois MHCs was also conducted. Illinois MHCs were largely characterized by the '10 essential elements of an MHC', such as voluntary participation, informed choice and hybrid team approaches to case manage clients. Results of the recidivism analysis suggest that MHCs compare favorably to other types of probation. Overall, findings revealed that Illinois MHCs are delivering services effectively and efficiently in a well-coordinated, client-centered team approach. Differences found among the MHCs are not evidence of significant variance from the model, and instead represent responsiveness to the unique culture of the court, the niche-filling character of the program, the expectations of the program stakeholders and the nature and extent of the local service environment.

January 11, 2017 | Permalink | Comments (0)

Alexander on Demonstrations

Basil S Alexander (Queen's University (Canada), Faculty of Law) has posted Demonstrations and the Law: Patterns of Law's Negative Effects on the Ground and the Practical Implications (University of British Columbia Law Review, Vol. 49, No. 3, pp. 869-930, 2016) on SSRN. Here is the abstract:

Although demonstrations are a recurring and key feature of Canadian and other societies, law often has negative and unacknowledged larger impacts on demonstrations while they occur when one examines how courts and police practically use and apply law on the ground. By pragmatically analyzing the experiences in Canada of Ipperwash, the Toronto G20, the Occupy movement, and “Idle No More,” this article illustrates patterns of how injunctions and criminal law processes negatively interacted with those demonstrations while they happened. The article begins by reviewing law’s usually detrimental impact on demonstrations-in-progress in the context of interlocutory and statutory injunctions (unless rare circumstances arise). For example, given the prior status quo focus of such injunctions, demonstrators have an uphill battle to practically win such motions. As well, using Hohfeldian conceptions, specific “rights” (such as property rights or regulated property use) usually prevail over more general aspirational “privileges” (such as freedom of expression and freedom of peaceful assembly) when they come into conflict. Law also does not usually act in prospective (or ex ante) manner for specific future or current situations. The article then examines how the police can use criminal powers and processes to effectively shut down or undermine demonstrations in the heat of the moment, notably because any after-the-fact (or ex post) reviews or accountability for misuse come much later, if at all.

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January 11, 2017 | Permalink | Comments (0)

Tuesday, January 10, 2017

"Dylann Roof Is Sentenced to Death in Charleston Church Massacre"

From The New York Times:

The jury of nine whites and three blacks, who last month found Mr. Roof guilty of 33 counts for the attack at Emanuel African Methodist Episcopal Church in downtown Charleston, S.C., returned their unanimous verdict after about three hours of deliberations in the penalty phase of a heart-rending and often legally confounding trial.

. . .

Carol S. Steiker, a Harvard law professor who has written extensively about the death penalty, said that the two narratives about Mr. Roof were not necessarily inconsistent, and that a concealed psychological defect could have left Mr. Roof susceptible to a disconnected worldview. “It’s pretty hard to tell the difference between bad and mad, between evil and crazy,” she said, “and that’s why we need the investigation needed to present a mitigating case.”


January 10, 2017 | Permalink | Comments (0)

Doleac on Externalities of State DNA Database Laws

Jennifer L. Doleac (University of Virginia - Frank Batten School of Leadership and Public Policy) has posted How do State Crime Policies Affect Other States? The Externalities of State DNA Database Laws on SSRN. Here is the abstract:

State and local governments control most criminal justice policy in the United States, without regard for potential effects on other states. Lenient state policies might draw in criminals from other states, whereas harsh state policies might drive criminals away to other states. Alternatively, harsh policies might deter or incapacitate criminals who would otherwise migrate to neighboring states and commit crimes there. Thus the effects of a state’s policies extend beyond its borders, but these effects could be positive or negative. This paper estimates the externalities of DNA databases. I exploit variation in the timing of database expansions as exogenous shocks to the sizes of state databases, to measure the cross-state effect of database size. The federal government seems to think externalities are positive, since it subsidizes state-level database expansions. I find instead that externalities are negative: increasing the number of other-state profiles increases own-state crime, so that approximately 10 percent of DNA databases’ crime-reducing effect is due to states’ displacing crime to other states. Effects are larger for nearby states. This result is consistent with the hypothesis that offenders respond rationally to state policies by moving to places where they are less likely to get caught for their crimes.

January 10, 2017 | Permalink | Comments (0)

Monday, January 9, 2017

Opinion upholding qualified immunity in excessive force case

The Court issued a per curiam opinion in White v. Pauly. Justice Ginsburg filed a concurring opinion.

January 9, 2017 | Permalink | Comments (0)

"At Dylann Roof’s Trial, a Question of How Many Tears Are Too Many"

From The New York Times:

“It is not fair to allow that much testimony to be heard by the jury when I am not presenting any evidence — from my family or anyone else — in mitigation,” Mr. Roof argued on Wednesday in a motion that Judge Gergel denied. “If I don’t present any mitigation evidence, the victim-impact evidence will take over the whole sentencing trial and guarantee that I get the death penalty.

Found guilty in December on 33 counts, including 18 that carry a potential death sentence, Mr. Roof has rejected Mr. Bruck’s strategy of presenting evidence about his background and mental health that might mitigate against his execution. The lawyer has been relegated to the role of standby counsel, allowed to sit beside Mr. Roof and offer guidance but not to question witnesses or to object to the government’s evidence.

The usually soft-spoken Mr. Bruck has not been able to contain his frustration. At several points last week, with the jury out of the courtroom, he pleaded with Judge Gergel to rein in the prosecution and to empower him to object to testimony. “This is sentencing; it is not a memorial service,” said Mr. Bruck, who has often expressed his admiration for the victims and his sorrow for their families. “It has become a runaway freight train.”


January 9, 2017 | Permalink | Comments (0)

Klein on Incompetent Defendants and Involuntary Medication

Dorie Klein (St. Mary's University School of Law) has posted The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides (University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013) on SSRN. Here is the abstract:

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.

In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial.

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January 9, 2017 | Permalink | Comments (0)