Tuesday, May 24, 2016
From The New York Times. In part:
In a separate seven-page filing in Federal District Court in Charleston, prosecutors cited nine aggravating factors, including that Mr. Roof had “expressed hatred and contempt towards African-Americans, as well as other groups, and his animosity towards African-Americans played a role in the murders charged in the indictment.”
The prosecutors also wrote that Mr. Roof had “demonstrated a lack of remorse” and that he had “targeted men and women participating in a Bible study group at the church in order to magnify the societal impact” of the attack.
Barbara Teresa Andraka-Christou has posted Essay: Improving Drug Courts Through Medication-Assisted Treatment for Addiction on SSRN. Here is the abstract:
Empirical studies demonstrate that medication-assisted treatment (including the use of methadone, buprenorphine or naltrexone) is more effective at preventing opiate addiction relapse and recidivism than regular attendance at twelve-step groups or mental health counseling alone. However, less than half of drug courts provide access to medication-assisted treatment, and half of drug courts explicitly ban their use.
This essay explores why drug courts fail to provide the most medically advanced forms of drug addiction treatment. Reasons include the following: a cultural preference for abstinence-only treatments; belief that addiction medication is “immoral”; hyperbolic fear of the illegal diversion of medication; cultural loyalty to twelve-step groups; preference for morality-based approaches; and lack of knowledge about addiction treatment medications.
Kevin E. Davis (New York University School of Law) has posted Multijurisdictional Enforcement Games (The Research Handbook on Corporate Crime and Financial Misdealing, Jennifer Arlen ed., Forthcoming) on SSRN. Here is the abstract:
Economic analyses of law enforcement generally focus on situations in which law is enforced by a single public agency in a single jurisdiction which faithfully follows its announced enforcement strategy. This does not reflect the reality of enforcement aimed at corporate crime, which commonly involves multiple agencies, often based in different jurisdictions. This chapter will discuss the analysis of multijurisdictional law enforcement, with particular reference to cases concerning foreign bribery. The premise is that this kind of interaction can be modelled as a dynamic multi-player game in which the players include both enforcement agencies and firms. The first step is to describe the structure of the game: the range of possible players, the actions open to them, and their preferences over outcomes, as well as when the players act and what they know about other players’ actions. The next step is to discuss how the enforcement game is likely to be played, meaning what strategies firms and enforcement agencies are likely to adopt. In principle, this kind of analysis can be used to formulate testable hypotheses about outcomes of interactions between regulators and firms. Unfortunately, opportunities to evaluate these kinds of hypotheses empirically are limited because many aspects of the structure of the game are difficult to observe, and firms’ misconduct and regulators’ enforcement activities typically are only observable when they result in formal sanctions. The chapter concludes with a discussion of some of the challenges inherent in normative analysis of the outcomes of multi-jurisdictional law enforcement games.
Monday, May 23, 2016
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.
On May 18, the state legislature of Illinois passed a bill all but absolutely banning the warrantless deployment of Stingray cellphone surveillance devices in the Land of Lincoln.
The text of Senate Bill 2343 mandates that “a court order based on probable cause that a person whose location information is sought has committed, is committing, or is about to commit a crime, is required for any permitted use” of a Stingray or similar tracking tool.
. . .
The function of the technology reveals its threat to the liberties of the law-abiding. The suitcase-sized Stingray masquerades as a cell tower to trick cellphones into connecting to it. It can give police tracking identifiers for phones within a mile or more, depending on terrain. Given the mobility of the device, police who use it can triangulate a target’s location with better accuracy than if they relied on data transferred by traditional cell towers.
This equipment isn't cheap. According to published reports, each Stingray device costs about $350,000. Despite the cost, however, it has been reported that nearly 30 police departments admit to owning a Stingray, with about 50 other cities refusing to disclose whether or not they own one of these expensive surveillance devices.
From The New York Times:
Peter Moskos, a former Baltimore police officer who teaches at John Jay College of Criminal Justice in New York, said that Ms. Mosby had “overplayed her hand.”
Charges were filed too quickly, he said, adding that prosecutors should have spent more time bolstering cases against one or two officers who may have been most culpable. “Someone dying doesn’t always make it a crime,” Mr. Moskos said. “The prosecutors are trying to find social justice, but these are trials of individual cops.”
Steven J. Frenda , Shari R. Berkowitz , Elizabeth F. Loftus and Kimberly M. Fenn (University of California, Irvine - Department of Psychology and Social Behavior , University of California, Irvine , University of California, Irvine - Department of Psychology and Social Behavior and Michigan State University - Department of Psychology) have posted Sleep Deprivation and False Confessions (PNAS, Vol. 113, No.8, 2016, pp.2047-2050) on SSRN. Here is the abstract:
False confession is a major contributor to the problem of wrongful convictions in the United States. Here, we provide direct evidence linking sleep deprivation and false confessions. In a procedure adapted from Kassin and Kiechel [(1996) Psychol Sci 7(3):125–128], participants completed computer tasks across multiple sessions and repeatedly received warnings that pressing the “Escape” key on their keyboard would cause the loss of study data. In their final session, participants either slept all night in laboratory bedrooms or remained awake all night. In the morning, all participants were asked to sign a statement, which summarized their activities in the laboratory and falsely alleged that they pressed the Escape key during an earlier session. After a single request, the odds of signing were 4.5 times higher for the sleep-deprived participants than for the rested participants. These findings have important implications and highlight the need for further research on factors affecting true and false confessions.
Joscha Legewie and Jeffrey Fagan (New York University (NYU) and Columbia Law School) have posted Group Threat, Police Officer Diversity and the Deadly Use of Police Force on SSRN. Here is the abstract:
Officer-involved killings and racial bias in policing are controversial political issues. Prior research indicates that (perceived) group threat measured in terms of population shares and race-specific crime rates are important explanations for variations in police killings across cities in the the United States. We argue that a diverse police force that proportionally represents the population it serves mitigates group threat and thereby reduces the number of officer-involved killings. Count models support our argument. They show that officer involved killings of African Americans are higher in cities with factors commonly associated with group threat, including ethnic/racial polarization and black-on-white homicides. A diverse police force, however, reduces the influence of group threat lowering the number of officer-involved killings of African Americans. The findings represent one of the first analysis of a highly relevant contemporary issue based on a recent and high-quality dataset from 2013 to 2015. By highlighting the interaction between group treat and the proportional representation of minority groups in police departments, our research advances group conflict and threat theories with important theoretical and policy implications for law enforcement and representative bureaucracies more broadly.
Police misconduct has received a heightened degree of media attention in the last two years, but in reality the problem has been around for decades, and the people who consistently bear the brunt of that misconduct are people of color. This Article focuses on one reason behind the misconduct crisis (that police officers are rarely held accountable in any meaningful way for their misconduct against minorities) and one solution for that problem (reforming the way cities review and respond to civilian complaints about police misconduct). While some scholars have acknowledged the flaws inherent in existing review structures, this Article is the first to consider how the ineffective methods by which cities respond to civilian complaints of police misconduct exacerbate the misconduct crisis, and the first to propose a model for an effective independent review agency.
Stephen Rushin and Griffin Sims Edwards
University of Alabama - School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics
Date posted to database: 3 Apr 2016
|2||299||Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court
Mark Denbeaux, Kelley Kearns and Michael J. Ricciardelli
Seton Hall University, School of Law, Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08
Date posted to database: 9 Apr 2016
|3||298||'They Have All the Power': Youth/Police Encounters on Chicago's South Side
Craig B. Futterman, Chaclyn Hunt and Jamie Kalven
University of Chicago Law School, Invisible Institute and Invisible Institute
Date posted to database: 27 Mar 2016
|4||217||Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution
Harry M. Caldwell
Pepperdine University - School of Law
Date posted to database: 10 Apr 2016
|5||175||Policing Predictive Policing
Andrew Guthrie Ferguson
University of the District of Columbia - David A. Clarke School of Law
Date posted to database: 18 Apr 2016 [6th last week]
University of Arizona Rogers College of Law
Date posted to database: 25 Apr 2016 [5th last week]
|7||144||Why Vague Sentencing Guidelines Violate the Due Process Clause
Government of the United States of America - U.S. District Court for the District of Oregon
Date posted to database: 1 May 2016
|8||133||A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016
|9||108||Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops
University of Pennsylvania Law School
Date posted to database: 7 May 2016 [new to top ten]
|10||101||The Heavy Costs of High Bail: Evidence from Judge Randomization
Arpit Gupta, Christopher Hansman and Ethan Frenchman
Columbia University - Columbia Business School, Columbia University, Barnard College - Department of Economics and Maryland Office of The Public Defender
Date posted to database: 6 May 2016 [new to top ten]
Sunday, May 22, 2016
|1||474||The Federal Circuits’ Second Amendment Doctrines
David B. Kopel and Joseph G.S. Greenlee
Independence Institute and Independent
Date posted to database: 21 Apr 2016
|2||315||Like Snow to the Eskimos and Trump to the Republican Party: The Ali's Many Words for, and Shifting Pronouncements About, 'Affirmative Consent'
University of San Diego School of Law
Date posted to database: 24 Mar 2016
|3||144||Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald, Justin Olson,Ryan Mansell and Sara Rankin
Seattle University, School of Law, Students, Seattlle University, School of Law, Students, Seattlle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
Date posted to database: 8 May 2016 [new to top ten]
|4||142||Campus Sexual Assault Adjudication and Resistance to Reform
Michelle J. Anderson
CUNY School of Law
Date posted to database: 21 Apr 2016
|5||133||A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016
|6||119||Causation: Linguistic, Philosophical, Legal and Economic
Richard W. Wright and Ingeborg Puppe
Illinois Institute of Technology - Chicago-Kent College of Law and University of Bonn - Department of Law
Date posted to database: 22 Apr 2016
|7||98||Shut Out: How Barriers Often Prevent Meaningful Access to Emergency Shelter
Suzanne Skinner and Sara Rankin
Seattle University School of Law and Seattle University School of Law
Date posted to database: 10 May 2016 [new to top ten]
|8||94||Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016
|9||73||The Common Law of War
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 18 Apr 2016
|10||73||Introduction to Causation, Liability and Apportionment: Comparative Interdisciplinary Perspectives
Richard W. Wright, Florence G'sell and Samuel Ferey
Illinois Institute of Technology - Chicago-Kent College of Law, University of Lorraine and University of Lorraine
Date posted to database: 19 Apr 2016 [new to top ten]
Friday, May 20, 2016
Teneille R. Brown , Jim Tabery and Lisa Aspinwall (University of Utah - S.J. Quinney College of Law , University of Utah - Department of Philosophy and University of Utah) have posted Understanding Validity in Empirical Legal Research: The Case for Methodological Pluralism in Assessing the Impact of Science in Court (Hastings Law Journal, Vol. 67, 2016) on SSRN. Here is the abstract:
What makes a study valid or invalid? In 2013, the Hastings Law Journal published a law review article by law professor Deborah Denno entitled What Real-World Cases Tell Us About Genetic Evidence. This article questioned the validity of an article that we published in Science: The Double Edged-Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths? Denno’s trenchant critique focused on our use of experimental, rather than archival, methodology, and revealed a misunderstanding of the diverse goals of empirical legal research. One study, which in our case investigated the impact of biological explanations of criminal behavior on sentencing, is not meant to answer the universe of potentially relevant questions. This is as true in science as it is in law. Rather, experimental and archival projects complement each other by asking and answering different questions aimed at different forms of validity. We describe archival and experimental research methods, and then explain how their design impacts external validity, including concerns of ecological validity, robustness, and generalizability; internal validity; and construct validity. We appreciate Denno’s questions about external validity in particular, specifically asking how and under what conditions a particular set of experimental effects might occur in real court cases. However, the questions she poses do not challenge the internal validity of our study — that is, its ability to identify particular causal factors that influence judges’ ratings and sentencing decisions in the particular set of conditions and case features we tested. By explaining the tradeoffs between different forms of validity, this brief article may serve as a helpful tool for scholars in law, psychology, and other social sciences, as well as attorneys and judges who rely on empirical legal research in their work.
Anastasia Chamberlen (University of Warwick - Department of Sociology) has posted Embodying Prison Pain: Women's Experiences of Self-Injury Practices in Prison and the Emotions of Punishment (Theoretical Criminology, Vol. 20 no. 2 pp. 205-219) on SSRN. Here is the abstract:
This paper explores the meanings and motivations of self-injury practices as disclosed in interviews with a small group of female former prisoners in England. In considering their testimonies through a feminist perspective, I seek to illuminate aspects of their experiences of imprisonment that go beyond the ‘pains of imprisonment’ literature. Specifically, I examine their accounts of self-injury with a focus on the embodied aspects of their experiences. In so doing, I highlight the materiality of the emotional harms of their prison experiences. I suggest that the pains of imprisonment are still very much inscribed on and expressed through the prisoner’s body. This paper advances a more theoretically situated, interdisciplinary critique of punishment drawn from medical-sociological, phenomenological and feminist scholarship.
Henrique Carvalho (University of Warwick - School of Law) has posted Liberty and Insecurity in the Criminal Law: Lessons from Thomas Hobbes (Criminal Law and Philosophy (Online First), 2015) on SSRN. Here is the abstract:
In this paper, I provide an extensive examination of the political theory of Thomas Hobbes in order to discuss its relevance to an understanding of contemporary issues and challenges faced by criminal law and criminal justice theory. I start by proposing that a critical analysis of Hobbes’s account of punishment reveals a paradox that not only is fundamental to understanding his model of political society, but also can offer important insights into the preventive turn experienced by advanced liberal legal systems. I then suggest that the main importance of an analysis of Hobbes’s theoretical framework lies in how it reveals an inextricable and problematic link between individual autonomy and political authority in the normative conception of the modern liberal state, grounded on the notion of insecurity. By exploring how legal scholars have recently engaged with aspects of this problematic in criminal law and punishment posed by Hobbes’s work, I argue that the paradox found in punishment is such that it both legitimates the criminal law and undermines its normative aspirations, particularly the possibility of securing individual liberty against the power of the liberal state.
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.
Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.
Thursday, May 19, 2016
Barbara Havelkova (University of Oxford - Faculty of Law) has posted Blaming All Women: On Regulation of Prostitution in State Socialist Czechoslovakia ((2016) 36 Oxford Journal of Legal Studies 165) on SSRN. Here is the abstract:
The article explores how Czechoslovakia reacted to the persistence of prostitution during State Socialism (1948-1989) when its underlying Marxist-Leninist ideology predicted that it should disappear with the overthrow of capitalism. The paper adopts a law in context approach, critically analysing legal instruments as well as expert commentaries by social scientists, legal scholars, judges and prosecutors from the period.
It argues that while the Czechoslovak state attempted to suppress prostitution through criminal law, conceptualizing it as ‘parasitism’, many of the State Socialist experts ultimately fell back on the extra-legal normative system of gender. Women in prostitution were condemned for their sexually promiscuous behaviour while all women were blamed for failing in their gender roles as good women, wives and mothers. Whereas the official policy was thus enforcing socialist morality, the experts reverted to traditional bourgeois morality, in clear betrayal of the promises of both Marxism-Leninism and the State Socialist ideology as regards the equality of the sexes.
The positive law model of the Fourth Amendment maintains that a search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The positive law model thus treats laws applicable to private parties as a ceiling on Fourth Amendment protections. But government action is fundamentally different — and often more deserving of regulation — than similar conduct by private parties. Due to its distinctive capabilities, incentives, and social role, the government often threatens the people’s security in ways that private parties simply do not. Still, we can learn from analogies to private parties without being limited by them. The way to do that, I briefly suggest, is to view privacy-related measures applicable to private parties as presumptively triggering the Fourth Amendment’s prohibition on unreasonable searches. I call this alternative approach the “positive law floor.”
Wednesday, May 18, 2016
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Predictive Prosecution (Wake Forest Law Review, Symposium 2016) on SSRN. Here is the abstract:
Police in major metropolitan areas now use “predictive policing” technologies to identify and deter crime. The early successes of predictive policing have led a few prosecutor’s offices to adopt quasi-“predictive prosecution” strategies. Predictive prosecution involves the identification and targeting of suspects deemed most at risk for future serious criminal activity, and then the use of that information to shape bail determinations, charging decisions, and sentencing arguments. This type of “Moneyball” prosecution has begun in New York City and Chicago, and this essay addresses the promise and peril of this new technology.
This essay for the Wake Forest Law Review’s Symposium on “Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration” addresses the emergence of predictive prosecution strategies. It suggests preliminary questions that prosecutors should ask before adopting a predictive prosecution system and examines how predictive prosecution might impact prosecutorial decision-making, prosecutorial role, and crime suppression priorities.