Saturday, February 13, 2016
|1||265||The Insanity Defense: Nine Myths that Will Not Go Away
Michael L. Perlin
New York Law School
Date posted to database: 16 Jan 2016
|2||197||The Constitution and Revenge Porn
John A. Humbach
Pace University School of Law
Date posted to database: 22 Dec 2015
|3||140||Neuroscience, Free Will, and Criminal Responsibility
University of Pennsylvania Law School
Date posted to database: 9 Dec 2015
|4||90||Addiction, Choice and Criminal Law
University of Pennsylvania Law School
Date posted to database: 16 Dec 2015
Northwestern University - School of Law
Date posted to database: 2 Jan 2016
|6||79||Consenting to Computer Use
University of Maryland Francis King Carey School of Law
Date posted to database: 5 Jan 2016
|7||68||Backpedalling in Place: The Ali's Move from 'Affirmative' to 'Contextual' Consent
University of San Diego School of Law
Date posted to database: 13 Jan 2016 [8th last week]
|8||61||Two Views of First Amendment Thought Privacy
Adam J. Kolber
Brooklyn Law School
Date posted to database: 18 Jan 2016 [10th last week]
|9||54||Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience
University of Pennsylvania Law School
Date posted to database: 19 Dec 2015 [8th last week]
|10||51||The Opposite of Rape
University of Oxford - Faculty of Law
Date posted to database: 5 Feb 2016
Last Revised: 5 Feb 2016 [new to top ten]
Friday, February 12, 2016
Darryl K. Brown (University of Virginia School of Law) has posted Decriminalization, Regulation, Privatization: A Response to Professor Natapoff (Vanderbilt Law Review, Vol. 69, 2016) on SSRN. Here is the abstract:
This short comment on Natapoff’s “Misdemeanor Decriminalization” (2015) offers reasons for skepticism about how broadly we can expect decriminalization reforms to extend in U.S. state criminal codes, and also about the procedural advantages that enforcement officials gain when offenses are converted from criminal to civil status. I then sketch reasons why decriminalization often does not lead to less punitive regulation. One is that civil enforcement typically remains with the same police, prosecutors, and courts. A second is the paucity of enforcement mechanisms that work on low-income offenders. A third looks to durable features of American policymaking and institutional design. Federal and state governments have long maintained a strong state capacity for criminal law enforcement, which stands as an exception to a general disfavor in the U.S. for a strong public sector. Aversion to robust state capacity leads to preferences for privatizing public functions and for self-funding courts and law enforcement agencies through fines and user fees. Dependency on fines and fees paid by violators, coupled with an unwillingness to fully legalize much conduct now regulated through misdemeanor courts, constrains decriminalization efforts.
Michael L. Perlin and Alison J. Lynch (New York Law School and Disability Rights New York) have posted 'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.
Paulina E. Wilson (Queen's University Belfast) has posted Interjural Incommensurability in Criminal Law: Constructing a Framework for Micro-Comparisons for Translation Purposes (in Tessuto G and Salvi R (eds), Language and Law in Social Practice Research (Universitas Studiorum 2015)) on SSRN. Here is the abstract:
This chapter explores the incommensurability of criminal law concepts between common law and civil law jurisdictions and its implications for translation in the context of criminal justice. Since translation of legal concepts must take into account their intertextuality as well as statutory and/or judicial interpretation, an interdisciplinary framework for conducting legal micro-comparisons is proposed for translation purposes. The practical application of the framework is illustrated by analysing a criminal offence in terms of construction of criminal liability in a source legal system and mapping the offence onto a target legal system, consequently revealing that the corresponding criminal law concepts only partially overlap between the two jurisdictions. Against that backdrop, some translations of the source term denoting the criminal offence are critically assessed from the viewpoint of their legal accuracy in the target language, and an alternative functional equivalent is suggested in an attempt to remedy terminological incongruence. The study thus demonstrates that the accuracy of legal translation is conditional on the translator having a certain degree of bijural competence. The author concludes by highlighting lacunae in current translator and interpreter training in the United Kingdom and recommending the introduction of practical linguistic and comparative law modules in training curricula, designed to address the issue of incommensurability in legal translation.
Sabine Gless , Emily Silverman and Thomas Weigend (University of Basel , Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Foreign and International Criminal Law and University of Cologne) have posted If Robots Cause Harm, Who is to Blame? Self-Driving Cars and Criminal Liability on SSRN. Here is the abstract:
The fact that robots, especially self-driving cars, have become part of our daily lives raises novel issues in criminal law. Robots can malfunction and cause serious harm. But as things stand today, they are not suitable recipients of criminal punishment, mainly because they cannot conceive of themselves as morally responsible agents and because they cannot understand the concept of retributive punishment. Humans who produce, program, market and employ robots are subject to criminal liability for intentional crime if they knowingly use a robot to cause harm to others. A person who allows a self-teaching robot to interact with humans can foresee that the robot might get out of control and cause harm. This fact alone may give rise to negligence liability. In light of the overall social benefits associated with the use of many of today's robots, however, the authors argue in favor of limiting the criminal liability of operators to situations where they neglect to undertake reasonable measures to control the risks emanating from robots.
Chad Flanders and Joseph C Welling (Saint Louis University - School of Law and Saint Louis University, School of Law, Students) have posted Police Use of Deadly Force: State Statues 30 Years after Garner (St. Louis University Public Law Review, Forthcoming) on SSRN. Here is the abstract:
The recent rash of police shootings has raised troubling questions about when, if ever, police are justified in using deadly force against a suspect. Some police shootings may simply represent wanton violence. But others may present close cases. How do we decide when a police officer can not only use force, but shoot at a suspect — even shoot to kill? When is a police killing a justifiable homicide, and when is it just a homicide?
One place to start in drawing the line between justified and unjustified uses of deadly force is the Supreme Court’s 1985 opinion in Tennessee v. Garner. Reading the majority opinion in Garner is a bracing experience. Justice White’s extended discussion of the common law standard of police use of force makes clear on many levels that he did not merely want to replace the common law rule: he wanted to bury it. That police could use any amount of force, including deadly force, to “seize” a fleeing felon — the common law rule which at issue in Garner — was not only constitutionally infirm, it made little sense as a policy matter.
Thursday, February 11, 2016
Giora Rahav , Yoram Rabin and Ephraim Yaar (Tel Aviv University , College of Management Law School and Tel Aviv University - The Evens Program for Conflict Resolution Research) have posted Disparities between Jews and Arabs in the Israeli Criminal Law System (Ohio State Journal of Criminal Law, Vol. 13, No. 1, 2015) on SSRN. Here is the abstract:
The initial goal of the study was to examine the disparities between Jews and Arabs in the Israeli criminal law system over the period of 1996-2005. The study has produced several meaningful findings. First, Arab defendants are more likely to receive harsher penalties than their Jewish counterparts. The difference between Arabs and Jews is greater for prison than for suspended prison terms and greater for suspended prison terms than for fines. Second, the difference between the groups begins at the early pre-trial stage when a decision is taken as to whether to prosecute or to cancel the case. And third, once we distinguish between the type of penalty and its severity, it seems that the source of the difference lies in the decision concerning the type of penalty rather than its severity. Finally, there is no period effect: the year of the trial does not have any significant impact. Thus, the Intifada and its aftermath has not left any visible trace on the processes that we have examined. Generally speaking, these findings are consistent with former studies concerning the difference between the disposition of Arab and Jewish offenders in Israel.
Dan Terzian has posted The Micro-Hornbook on the Fifth Amendment and Encryption (Georgetown Law Journal Online, 2016, Forthcoming) on SSRN. Here is the abstract:
This Micro-Hornbook objectively analyzes whether and how the government may compel you to provide access to unencrypted data.
Malcolm Thorburn (University of Toronto - Faculty of Law) has posted Calling Antony Duff to Account Rowan Cruft, Mathew H. Kramer, Mark R. Reiff (eds):Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff, Oxford, Oxford University Press, 2012 (Criminal Law and Philosophy, Vol. 9, pp. 737–751, 2015) on SSRN. Here is the abstract:
This is a Book Review on Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff.
Wednesday, February 10, 2016
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do — its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.
Drawing on original historical research, this Article instead chronicles what Gideon did — the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contextualizing that example with national comparisons.
This Article examines computer crime statutes and focuses on their weaknesses to implement statutory modifications. Part I provides an overview on the current federal statute, Computer Fraud and Abuse Act, and specific computer crime statutes from California, Vermont, Arkansas, and Arizona. Part II focuses on states' approaches to computer crimes. Part III highlights potential statutory weaknesses and suggests possible amendments to federal and state legislation. Finally, Part IV of this Article concludes with a unique perspective of computer fraud, specifically hacking, in relation to financially motivated crimes.
Kay L. Levine and Volkan Topalli (Emory University School of Law and Georgia State University) have posted Process as Intergenerational Punishment: Are Children Casualties of Parental Court Experiences? on SSRN. Here is the abstract:
Ground-breaking work by Malcolm Feeley established that the experience of criminal court processing can feel like punishment to a defendant, separate and apart from the outcome of the criminal case. The purpose of this paper is to explore whether that effect extends beyond the offender to his or her family, particularly children, and whether this effect exists even before incarceration is imposed.
There exists a significant body of literature that links parental incarceration to negative outcomes for children of prisoners (e.g., poor socialization, behavioral problems, poor school outcomes, etc.) Criminologists have also tied early childhood exposure to traumatic experiences (such as violence and deprivation) to later criminality. But neither of these literatures has specifically investigated the effect of criminal court processing of parents on their children, particularly when children witness court appearances or hearings.
Tracey Booth (University of Technology Sydney, Faculty of Law) has posted Accommodating Justice: Victim Impact Statements in the Sentencing Process (The Federation Press, 2016) on SSRN. Here is the abstract:
Prominent criminologist, David Garland, has argued that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide”.
A victim impact statement (VIS) is a highly nuanced and individual narrative that can operate as both an informational device in the sentencing process and an expressive mechanism for crime victims. From the law perspective, VISs provide the court with details of harm caused by the offence and the consequences of the offending in order to further purposes of sentencing. As an expressive mechanism, VISs offer victims the opportunity and space to express their feelings, tell their personal story of the aftermath of crime, and be heard by the court, the offender, and the wider community.
Tuesday, February 9, 2016
Caitlin M. Plummer and Imran J. Syed (Wisconsin Innocence Project and Michigan Innocence Clinic) have posted ‘Shifted Science’ Revisited: Percolation Delays and the Persistence of Wrongful Convictions Based on Outdated Science (Cleveland State Law Review, Vol. 64, 2016) on SSRN. Here is the abstract:
We previously wrote about the phenomenon of convictions based on science that is credible at the time of trial, but later comes to be repudiated. Such post-conviction shifts in science were most obvious and reprehensible in the very old cases, the example being a 1986 arson prosecution, whose scientific underpinnings are exposed in a post-conviction motion filed in 2011. Immediately upon completing that article, we came to realize that it told only half the story. We seek in this article to build on that foundational idea of “shifted science” by discussing at length a harder question: the perception, percolation and continued evolution of shifts in science. We address here cases that arise on the cusp of a shift, identify the process of the shift in various forensic science disciplines and analyze how difficult it can be to perceive and address a shift in science, even when it occurs concurrently with, or even some time prior to, trial. Taking a step-by-step, route through the process of significant shifts in several different forensic disciplines, we hope to clarify the many stages involved in these shifts and the important consequences of misperceiving shifts in science as they occur. Finally, we also lay a foundation for a later piece addressing the difficult question of legal avenues for relief in shifted science cases that arise on the cusp of a revolution, such as those we address here.
United States law criminalizes providing material support to foreign terrorist organizations, assaulting foreign officials, accepting campaign contributions from foreign nationals, bribing foreign officials, and transmitting trade secrets to foreign governments, foreign instrumentalities, or foreign agents. These are but a few examples of how foreignness has permeated into a variety of criminal offenses in force today.
There is extensive literature on the trend towards expanding the geographic reach of U.S. criminal laws to include extraterritorial conduct. What criminal law literature has failed to discuss in detail is the decision to single out foreignness as a focus of the criminal law somehow separate and distinct from concerns confined to the American homeland. This Article examines how foreignness is reflected in contemporary U.S. criminal law and encourages caution when including a foreign nexus as a substantive element of crimes. It questions when a foreign link increases the threat of harm or the actor’s blameworthiness such that it makes sense to include foreignness within the definition of an offense. Even if building a foreign/domestic distinction into a criminal statute is justifiable as central to the very nature of the offense, this Article exposes the challenges of even discerning what is “foreign.”
Erin Ashley Hammons (Southern University Law Center, Students) has posted I Spy Something Useful: The Short Life and Senseless Death of Louisiana Senate Bill 250 (43 Southern University Law Review, 2016) on SSRN. Here is the abstract:
During the 2015 Louisiana Regular Legislative Session, Senate Bill Number 250 was introduced. Senate Bill 250 sought to create a Statewide Motor Vehicle Theft and Uninsured Motorist Identification Program. The bill sought to implement a pilot program using automatic-license-plate-recognition systems (ALPR) for the purpose of identifying stolen vehicles and uninsured motorists, and assisting with investigations concerning felony offenses.
Although Senate Bill 250 was successfully passed in the house and the senate, a gubernatorial veto prevented the bill from becoming law. In a veto letter, then-Governor, Bobby Jindal said that ALPR technology presents problems concerning privacy. He also reasoned that the systems are vulnerable to misuse and infiltration.
Nirej Sekhon (Georgia State University College of Law) has posted Blue on Black: An Empirical Assessment of Police Shootings on SSRN. Here is the abstract:
Michael Brown’s 2014 death in Ferguson, Missouri thrust police-officer-involved homicides into the popular consciousness. A series of subsequent officer-involved homicides has kept the issue politically and legally salient. Despite this, official data sources are thin and unreliable. This article presents original analysis of 259 police shooting incidents that occurred in Chicago between 2006 and 2014. The study, based upon publicly available information, suggests a more complex relationship between race, policing, and violence than one might expect from high-profile, officer-involved shootings. As in other large cities, shooting victims are overwhelmingly minorities, with Black persons constituting over 80% of victims. Contrary to intuition, many of the officer shooters are minorities as well. The analysis here suggests that neither racist malevolence nor unconscious bias afford complete explanations for why officer-involved shootings occur. Both of these explanatory frameworks focus too intensively upon individual officers’ decision-making at the expense of institutional and situational dynamics. Scholars and policy makers should focus far more intensively on regulating bad practices, rather than just on disciplining bad officers following egregious incidents. Shifting focus in this way will help identify connections between everyday policing tactics in minority neighborhoods – such as plainclothes policing and aggressive stop and frisk – and officer-involved shootings. The article also concludes that evidentiary challenges mar post hoc review of officer-involved shootings, whether it is in the form of judicial or civilian review. This also underscores the importance of preventive regulation.
Monday, February 8, 2016
Blackstone’s Ratio tells courts to focus more on preventing wrongful convictions than wrongful acquittals. Some critics argue that legislatures undermine the protection that courts afford to the wrongfully accused by, among other things, increasing sentences. A strong form of this critique suggests that the disproportionate focus on wrongful convictions leaves the wrongfully accused worse off. This essay uses a simple model to assess the plausibility of this critique and finds that Courts minimize the innocents’ suffering by minimizing the Conviction Ratio (the probability of convicting an innocent defendant divided by the probability of convicting a guilty defendant). This result holds even if one assumes that most cases are resolved through plea-bargaining. Only those who believe that our criminal justice system convicts many innocent defendants should find the anti-Blackstone critique convincing. This essay further shows that minimizing the Conviction Ratio may also minimize the total social costs of crime and punishment.
Bruce A. Green and Ellen Yaroshefsky (Fordham University School of Law and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Prosecutorial Accountability 2.0 on SSRN. Here is the abstract:
This article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision.
Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.