CrimProf Blog

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

Saturday, January 21, 2017

McGorrery on PTSD in Crime Victims

Paul McGorrery (Deakin University, Faculty of Business and Law, Deakin Law School) has posted Judicial Recognition of PTSD in Crime Victims: A Review of How Much Credence Australian Courts Give to Crime-Induced PTSD ((2016) 24 Journal of Law and Medicine 478) on SSRN. Here is the abstract:

The criminal justice system often finds itself concerned with what was happening inside someone's mind - what they were thinking, what they were feeling, what they intended. That investigation into people's minds, however, seems disproportionately more concerned with what is happening in defendants' minds (their credibility, culpability and dangerousness) than it is with victims' minds (the harm done). This is concerning given that one in five victims of violent crime and one in two victims of rape suffer from post-traumatic stress disorder (PTSD). This research reviews 139 reported criminal law judgments around Australia that mentioned PTSD in the 12-month period between 1 November 2014 and 31 October 2015. Of those 139 cases, it was in only 28 cases that a court's mention of PTSD had to do with whether the victim had PTSD; and of these, it was in only 11 that the victim's potential diagnosis of PTSD was somewhat or very relevant to the court's reasoning. This article suggests that victim PTSD should take a more prominent role in decision-making in the criminal justice system.

January 21, 2017 | Permalink | Comments (0)

Friday, January 20, 2017

Larkin on Pardons and Mistake of Law

Paul J. Larkin Jr. (The Heritage Foundation) has posted Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law (Georgetown Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits. That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations. Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense. Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system. The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice. Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 20, 2017 | Permalink | Comments (0)

Last week's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which links to papers:

  • Weaver v. MassachusettsWhether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.
  • Maslenjak v. United StatesWhether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.
  • McWilliams v. DunnWhether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
  • Davila v. DavisWhether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

January 20, 2017 | Permalink | Comments (0)

Bowman on Pryor on Presumptive Federal Sentencing Guidelines

Bowman-FrankFrank O. Bowman III (University of Missouri School of Law) has posted First Principles and Practical Politics: Thoughts on Judge Pryor's Proposal to Revive Presumptive Federal Sentencing Guidelines (29 Federal Sentencing Reporter __ (2017), Forthcoming) on SSRN. Here is the abstract:

This article responds to recent remarks by Judge William Pryor to the American Law Institute recommending abandonment of the post-Booker advisory version of the Federal Sentencing Guidelines and adoption of a simplified presumptive federal guidelines system. Although I am extremely sympathetic to this idea (and have proposed variants of it on multiple occasions over the past decade), I am increasingly skeptical that it can be accomplished in the current and foreseeable political environment.

The most daunting problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, however elegantly and expertly crafted, can survive contact with the political system. I explain how a system embodying the features advocated by Judge Pryor seems unlikely to gain approval from the Congress that will just have been seated when this article appears. Still more to the point, there seems a troublingly high risk that, even if such a system could be congressionally enacted, it would replicate the experience of the pre-Booker guidelines and become over time a one-way upward ratchet prescribing ever higher sentences.

January 20, 2017 | Permalink | Comments (0)

Yesterday's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

  • District of Columbia v. Wesby(1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

January 20, 2017 | Permalink | Comments (0)

Polinsky on Prison Work Programs and Deterrence

Polinsky_Mitchell-400x400A. Mitchell Polinsky (Stanford Law School) has posted Prison Work Programs in a Model of Deterrence on SSRN. Here is the abstract:

This article considers the social desirability of prison work programs in a model in which the function of imprisonment is to deter crime. Two types of prison work programs are studied — voluntary ones and mandatory ones. A voluntary work program is socially beneficial: if prisoners are paid a wage that just compensates them for their disutility from work, the deterrent effect of the prison sentence is unaffected, but society obtains the product of the work program. But a mandatory work program is superior to a voluntary work program: if prisoners are forced to work without compensation, the deterrent effect of the prison sentence rises, allowing society to restore deterrence and save resources by reducing the probability of detection or the sentence length, and also to obtain greater output than under the optimal voluntary work program. In an extension of the basic analysis, however, in which prisoners vary in their disutility from work, a voluntary work program may be superior to a mandatory work program because prisoners with relatively high disutility from work can elect not to work.

January 20, 2017 | Permalink | Comments (0)

Kolber on Punishment and Moral Risk

KolberAdam J. Kolber (Brooklyn Law School) has posted Punishment and Moral Risk on SSRN. Here is the abstract:

For every interesting moral question, we should have at least some doubt that we know the right answer. Legal theorists ignore this moral uncertainty at their peril. To take one important example, for retributivists to inflict punishment, they must believe not only that a defendant is guilty but that all other prerequisites for deserved punishment are satisfied as well. They must believe offenders have free will, even though philosophers have debated the topic for centuries. They must believe offenders can be punished proportionally, even though no one has convincingly determined how to assess proportionality. And they must believe it appropriate to make offenders suffer as a response to the suffering they caused, even though some find this view barbaric.

These retributivist commitments, along with several others, are clearly controversial. One would be hard-pressed to believe a single one — let alone the conjunction — with the 95% or 99% confidence frequently attributed to the beyond-a-reasonable doubt standard used to assess guilt. Reasonable retributivists, I argue, face too much uncertainty to justify punishment under the standard of proof they would likely set for themselves. Consequentialists, by contrast, are less vulnerable to this challenge. They can accept greater risk when punishing because they face countervailing risk by failing to adequately punish.

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January 20, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

Meisler on Scalia, Alito, Pryor, and Sykes

Scott Meisler has posted In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes on SSRN. Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes. This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States. The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 19, 2017 | Permalink | Comments (0)

Huang on Law and Moral Dilemmas

Huang bertBert I. Huang (Columbia Law School) has posted Law and Moral Dilemmas (Harvard Law Review, Vol. 130, p. 659, 2016) on SSRN. Here is the abstract:

If your self-driving Volvo suddenly must decide whether to swerve into one pedestrian in order to avoid crashing into five others, what should it do?

The thought experiment known as the “trolley problem” — long invoked in controversies from bioethics to capital punishment to climate change — has enjoyed a recent surge of attention, thanks to its uncanny resemblance to choices that driverless cars may have to face. In this essay, first I review Frances Kamm’s book, The Trolley Problem Mysteries, which reveals the unsettled state of philosophical debates about this classic dilemma.

Next I report findings from randomized experiments I conducted, addressing this basic question: Can our intuitions about such moral dilemmas be influenced by the presence of the law?

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January 19, 2017 | Permalink | Comments (0)

Robinson & Williams on Insanity

Paul H. Robinson and Tyler Scot Williams (University of Pennsylvania Law School and University of Pennsylvania, Students) have posted MAPPING AMERICAN CRIMINAL LAW An Exploration of the Diversity Among the States: Ch. 14 Insanity Defense (In Paul H. Robinson and Tyler Scot Williams, Mapping American Criminal Law: An Exploration of the Diversity among the States, Chapter 14, 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.

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January 19, 2017 | Permalink | Comments (0)

Dix-Carneiro et al. on Economic Shocks and Crime

Rafael Dix-Carneiro, Rodrigo R. Soares and Gabriel Ulyssea (Duke University, Columbia University - School of International & Public Affairs (SIPA) and Institute of Applied Economic Research (IPEA)) have posted Economic Shocks and Crime: Evidence from the Brazilian Trade Liberalization on SSRN. Here is the abstract:

This paper studies the effect of changes in economic conditions on crime. We exploit the 1990s trade liberalization in Brazil as a natural experiment generating exogenous shocks to local economies. We document that regions exposed to larger tariff reductions experienced a temporary increase in crime following liberalization. Next, we investigate through what channels the trade-induced economic shocks may have affected crime. We show that the shocks had significant effects on potential determinants of crime, such as labor market conditions, public goods provision, and income inequality. We propose a novel framework exploiting the distinct dynamic responses of these variables to obtain bounds on the effect of labor market conditions on crime. Our results indicate that this channel accounts for 75 to 93 percent of the effect of the trade-induced shocks on crime.

January 19, 2017 | Permalink | Comments (0)

Wednesday, January 18, 2017

Robinson & Williams on Felony Murder

Paul H. Robinson and Tyler Scot Williams (University of Pennsylvania Law School and University of Pennsylvania, Students) have posted MAPPING AMERICAN CRIMINAL LAW An Exploration of the Diversity Among the States: Ch. 5 Felony-Murder Rule (In Paul H. Robinson & Tyler Scot Williams, Mapping American Criminal Law: An Exploration of the Diversity among the States, Chapter 5, 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.

Continue reading

January 18, 2017 | Permalink | Comments (0)

Capers on Rape, Truth, and Hearsay

Capers i bennettI. Bennett Capers (Brooklyn Law School) has posted Rape, Truth, and Hearsay (Harvard Journal of Law and Gender, Forthcoming) on SSRN. Here is the abstract:

Though known among Evidence scholars, Stephens v. Miller is not a ground-breaking case, In applying a rape shield to the “she said, he said” facts before it — she said her acquaintance attempted to rape her, he said they had consensual sex — and in wrestling with whether the application of the rape shield deprived the defendant of his constitutional right to present a defense, the Seventh Circuit en banc opinion forged no new law. Instead, the plurality engaged in a rather straightforward, even predictable, analysis. The opinion’s references to “doggy fashion” sex may give the case some singularity. But as far as cases go, Stephens v. Miller is not canonical. One could even say the case is non-exceptional, at least insofar as any sexual assault case can be described as non-exceptional.

However, it is its very non-exceptionalism that makes Stephens v. Miller an interesting case, and ultimately a curious one. To be sure, Stephens v. Miller is a reminder of the stories courts tell, and that court opinions are never “innocent.” The case also serves as a reminder that a host of problems continue to plague rape shields. But Stephens v. Miller is also a curious case insofar as it signals a missed opportunity, one that could have addressed two of the most intractable problems with rape shields: the sense that they are often over-inclusive, and the sense that they sometimes get in the way of the right rape judgment. By looking beneath the surface of Stephens v. Miller, this article offers a way to rethink rape shields by borrowing from another branch of evidence law: hearsay. The mark of the solution is that it can result in better rape judgments not only in cases like Stephens v. Miller but in an array of other rape cases as well, including a particularly challenging category of cases — cases in which the defendant claims that he made an honest but reasonable mistake as to whether consent existed.

January 18, 2017 | Permalink | Comments (0)

Malcai & Levine-Schnur on When Procedure Takes Priority

Ofer Malcai and Ronit Levine-Schnur (Hebrew University of Jerusalem - Faculty of Law and Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) have posted When Procedure Takes Priority: A Theoretical Evaluation of the Contemporary Trends in Criminal Procedure and Evidence Law (Canadian Journal of Law and Jurisprudence, Vol. 30, 2017) on SSRN. Here is the abstract:

Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested, inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural norms; and growing judicial discretion to deviate from procedural rules. In order to evaluate these contemporary trends, we provide a theoretical analysis of the basic relationships between procedural norms and substantive legal outcomes. This framework reveals the moral commitments underling these modern trends as opposed to the moral foundations of the traditional view that legal decisions should be made under rigid procedural constraints. Focusing on criminal evidence law, the proposed theoretical framework is applied to some of the ongoing legal debates, such as about the admissibility of evidence seized in violation of rights, the exclusion of statistical and character evidence, and the flexibility of the reasonable doubt standard of proof.

January 18, 2017 | Permalink | Comments (0)

MacKie-Mason on Private Search Doctrine After Jones

Andrew MacKie-Mason (University of Chicago, Law School, Students) has posted The Private Search Doctrine After Jones (126 Yale L.J. F. 326 (2017)) on SSRN. Here is the abstract:

In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.

Jacobsen is based on the privacy theory of the Fourth Amendment introduced by the Court in Katz v. United States. According to the Court in Jacobsen, a private search — even if unauthorized — destroys an individual’s reasonable expectation of privacy. Thus, by merely repeating the search, the government does not further infringe on a person’s privacy. The private search doctrine is invoked by courts to justify police actions with somewhat surprising frequency.

In 2012 — twenty-eight years after Jacobsen — the Supreme Court restructured Fourth Amendment doctrine in United States v. Jones. In Jones, the Court held that the reasonable expectation of privacy test is not the only definition of a Fourth Amendment search.

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January 18, 2017 | Permalink | Comments (0)

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 (1)

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)