Thursday, February 23, 2017
Abubakar Bukar Kagu (University of Sussex - School of Law, Politics and Sociology) have posted Criminal Justice's Ailing Role (Advances in Social Sciences Research Journal, Vol. 4(2), p. 164-175, 2017) on SSRN. Here is the abstract:
The general philosophy of social contract is premised on the notion that the state assumes the role of maintaining social relation through diverse political ideas and strategies. Within the context of this historical arrangement, the institution of criminal justice has been foremost in shaping the relationship between members of the community by defining rights and sanctions. These socio-legal trajectories that developed through theories and policies have continued to define the various strategies of crime control as well as the jurisprudence of punishment. It has also been the key measure for the legitimacy of crime control and other dispute resolution techniques (Davies et al. 2009). Being a significant component in the formation of political systems, the institution of criminal justice has also developed to encapsulate the values of democracy, constitutionalism and human rights.
This report provides a comprehensive review of interventions that are currently being used to combat hate crime in England and Wales. The report complements another piece of work which was commissioned by the Equality and Human Rights Commission on the causes and motivations of hate crime and we recommend that both of these reports be read together (Walters, Brown and Wiedlitzka 2016). We have divided the report into three parts, the first and second examine the evidence-base for criminalisation, policing, and criminal justice and education-based interventions aimed at tackling hate. Here we pinpoint a number of emerging practices, using case studies, to highlight the ways in which hate-based incidents can be effectively challenged. We note also the limitations in research and offer recommendations for better evidence gathering to support the improved use of such practices. The third part of this report focuses on barriers to the effective management of criminal justice interventions for hate crime. In this final part of the report we set out a list of recommendations to enhance the effective management of hate crime offenders and the prevention of hate crime more generally. These recommendations are based on extensive consultations with research, policy and practitioner experts working in the area of hate crime.
This article considers the proportionality requirement of the self-defense justification. It first lays bare the assumptions and the logic – and often illogic – underlying very strict accounts of the proportionality requirement. It argues that accounts that try to rule out lethal self-defense against threats to property or against threats of minor assault by an appeal to the supreme value of life have counter-intuitive implications and are untenable. Furthermore, it provides arguments demonstrating that there is not necessarily a right not to be killed in defense against theft or minor assaults. While there is a general moral right of self-defense and a general right to life, the scope of these rights (like the scope of the right to liberty and the scope of the right to property) depends on certain social facts that – even within a liberal framework – can differ from one society to another. Moreover, the proportionality of self-defense does not depend on the rights of the aggressor alone, but also on a precautionary rule, shaped by the balance of interests of the society in question and aimed at protecting innocent people and other social interests. This rule can protect an aggressor even in cases where he does not have the right to such protection.
Wednesday, February 22, 2017
Lorana Bartels (University of Canberra - School of Law and Justice) has posted Swift and Certain Sanctions: Is it Time for Australia to Bring Some HOPE into the Criminal Justice System? (Criminal Law Journal, 39(1): 53-66, 2015) on SSRN. Here is the abstract:
This article examines the Hawaii’s Opportunity Probation with Enforcement (HOPE) Program, first piloted in Hawaii in 2004, to determine whether it would be suitable for adoption in the Australian context. The article commences with an overview of the origins and operation of the HOPE program. It then considers the findings of outcome evaluations of the program, which demonstrated greater reductions in drug use and reoffending and fewer days in prison compared with the control group. The findings of a process evaluation, including the perspectives of probation officers, judicial officers, court staff and offenders, are also discussed. Other programs in the United States which also deliver swift and certain sanctions are considered. The article then examines current and future projects and research. The article acknowledges some of the concerns with programs of this nature, but concludes by calling for Australia to adopt an appropriately funded and evaluated pilot project based on the HOPE model.
Clifford Shearing (Griffith Institute of Criminology) has posted The Relation between Public and Private Policing (In: Tonry, M. & Morris, N. Eds. Modern Policing. Chicago: University of Chicago Press, 399-434) on SSRN. Here is the abstract:
Employment by private policing agencies equals or exceeds public police employment in many countries. Reigning conceptions of relations between public police and private policing have changed markedly. A state-centered view of police functions disparaged 'private armies' and saw order maintenance as a quintessential function of government. In recent decades, a laissez-faire view has emerged that celebrates 'private-public partnerships' and sees private policing as an industry providing both a service and a public benefit. Social theorists question the wisdom and the likely future directions of the privatisation of order maintenance.
L. Song Richardson (University of California, Irvine School of Law) has posted Systemic Triage: Implicit Racial Bias in the Criminal Courtroom (Yale Law Journal, Vol. 126, No. 3, 2017) on SSRN. Here is the abstract:
In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges. No scholar has taken this systemic view of triage and explored its implications. Using evidence from Professor Van Cleve’s ethnography and from the social psychology of implicit racial bias, I argue that systemic triage inevitably results in racialized justice, regardless of the conscious motivations of individual decision-makers. It ends with some suggestions for reform.
A growing number of chief prosecutors are winning office by pledging a more thoughtful and evenhanded approach to criminal justice—an approach more attentive to racial disparities, the risk of wrongful conviction, the problem of police violence, and the harms of mass incarceration. But there is no roadmap for progressive prosecutors, no consensus set of “best practices” for elected prosecutors who want to make criminal justice not just more effective but also fairer and more humane. This short essay starts to develop such a roadmap. It offers ten suggestions to reform-oriented chief prosecutors: decide in advance how you want to be judged, evaluate and reward your attorneys for what you care about, collect and share data, build in second looks, have a clear and generous disclosure policy, do not turn a profit, reduce case delays, investigate police shootings independently and transparently, pay attention to office culture, and diversity your staff.
Joan Flocks, Emily Calvin, Simone Chriss and Marina Prado-Steiman (University of Florida - Fredric G. Levin College of Law - Center for Governmental Responsibility, Florida Coalition against Domestic Violence, University of Florida, Levin College of Law, Students and Office of the Public Defender, 5th Judicial Circuit of Florida) have posted The Case for Trauma-Informed, Gender-Specific Prevention/Early Intervention Programming in Reducing Female Juvenile Delinquency in Florida (Northwestern Journal of Law and Social Policy, Vol. 12, No. 1, 2017) on SSRN. Here is the abstract:
This article describes the statutory recognition of the need for prevention/early intervention juvenile services in Florida that are both trauma-informed and gender-specific. It examines how childhood trauma can impact at-risk children and the gendered aspects of such trauma. The article then describes the PACE Centers for Girls, a Florida based school, currently undergoing a comprehensive evaluation, which attempts to incorporate elements that fulfill the statutory recommendations into its programming.
Opinion granting habeas relief for ineffective assistance in calling witness who tied defendant's race to dangerousness
Tuesday, February 21, 2017
Naci H. Mocan and Ozkan Eren (Louisiana State University, Baton Rouge - Department of Economics and Louisiana State University, Baton Rouge - Department of Economics) have posted Emotional Judges and Unlucky Juveniles on SSRN. Here is the abstract:
Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact. The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings. These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.
Michael D. Cicchini has posted The Battle over the Burden of Proof: A Report from the Trenches (University of Pittsburgh Law Review, Vol. 79, No. 1, 2017) on SSRN. Here is the abstract:
After explaining the concept of “proof beyond a reasonable doubt,” many trial courts will conclude their burden of proof instructions by telling jurors “not to search for doubt” but instead “to search for the truth.” Criminal defense lawyers have argued that such truth-based instructions improperly lower the burden of proof to a mere preponderance of evidence standard. Prosecutors, however, have dismissed defense lawyers’ concerns as pure speculation.
To resolve this dispute, Professor Lawrence White and I empirically tested the impact of truth-based jury instructions on verdicts. In our two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than jurors who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even when they had a reasonable doubt about guilt.
Traditional rape law viewed the offense in Manichean terms: either an act of unwanted sex constitutes “rape” – one of the most serious affronts a person can endure – or else it is not legally cognizable at all. The traditional threshold for the offense also centered on evidence of the victim’s unwillingness, requiring either physical force or physical resistance. As “no means no” reforms took sporadic hold within contemporary law, they broadened the definition of rape to include unwanted penetration in the face of verbal refusal, thereby retaining both the unwillingness threshold as well as adopting the severe punishments for the offense provided in traditional law.
Sharon Oded (Rotterdam Institute of Law and Economics) has posted Coughing Up Executives or Rolling the Dice?: Individual Accountability for Corporate Corruption (Yale Law & Policy Review, Vol. 35, No. 1, 2016) on SSRN. Here is the abstract:
“Flesh-and-blood” corporate criminals have long been a major focus of U.S. enforcement authorities in the battle against foreign bribery. Many of the actions taken against individuals were largely enabled due to the cooperation of culpable corporations with investigative authorities. For years, this cooperation was encouraged by the award of “cooperation credit,” which is a mitigated approach toward cooperating corporations. The Yates Memorandum promulgated recently by the Department of Justice, however, has changed the rules of the game. According to the memo, the Department of Justice will no longer provide “cooperation credit” to corporations unless they demonstrate their cooperative approach by “sacrificing” employees involved in bribery. While the newly emerged policy seeks to send a reinforced message of deterrence to corporate executives, a law and economics analysis reveals that the Yates Memo may fall short of reaching its deterrence goals, and in fact may lead to more — rather than fewer — bribery practices.
Monday, February 20, 2017
Shon Hopwood (Georgetown University Law Center) has posted (Book Review) Caught: The Prison State and the Lockdown of American Politics, by Marie Gottschalk (Journal of Legal Education, Volume 66, Number 2, (Winter 2017)) on SSRN. Here is the abstract:
The American criminal justice system is a mess. It criminalizes too much conduct, disproportionately targets the poor and people of color, and overly relies on incarceration. It has become so immense that millions of Americans are starting to feel its squeeze as its grip fails every demographic of America from crime victims and taxpayers to those it convicts. The system desperately needs to be reexamined before an even larger segment of Americans comes to view the rule of criminal law as a rule of oppression.
To their credit, academics can lay claim to being among the first to highlight the carceral state and its causes. A deep body of literature now exists on the mass incarceration crisis,and Professor Marie Gottschalk has made an important contribution with her book Caught.
Sunday, February 19, 2017
|1||337||Law and Moral Dilemmas
Bert I. Huang
Columbia Law School
Date posted to database: 9 Jan 2017
|2||93||From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017
|3||87||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
|4||77||Punishment and Moral Risk
Adam J. Kolber
Brooklyn Law School
Date posted to database: 10 Jan 2017
|5||67||Strict Liability's Criminogenic Effect
Paul H. Robinson
University of Pennsylvania Law School
Date posted to database: 7 Jan 2017
|6||65||McDonnell and the Criminalization of Politics
George D. Brown
Boston College Law School
Date posted to database: 2 Feb 2017 [new to top ten]
|7||64||Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip
University of Toronto - Faculty of Law
Date posted to database: 5 Jan 2017 [6th last week]
|8||62||Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference
University of Lethbridge
Date posted to database: 29 Dec 2016 [7th last week]
|9||60||Rape, Truth, and Hearsay
I. Bennett Capers
Brooklyn Law School
Date posted to database: 9 Jan 2017 [8th last week]
|10||55||Analogical Reasoning and Extensive Interpretation
Giovanni Tuzet and Damiano Canale
Bocconi University - Department of Law and Bocconi University - Department of Law
Date posted to database: 21 Dec 2016 [9th last week]
Saturday, February 18, 2017
Issue summary is from ScotusBlog, which also links to papers:
- Hernández v. Mesa: (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.
|1||452||Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017
|2||374||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, Yale University - Department of Psychology, 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, Yale 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
|3||169||In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Date posted to database: 10 Jan 2017
|4||126||The Structure of Federal Public Defense: A Call for Independence
Federal Defenders of New York
Date posted to database: 19 Dec 2016
|5||115||When Interviewing Children: A Review and Update
Karen J. Saywitz, Thomas D. Lyonand Gail S. Goodman
University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis
Date posted to database: 5 Jan 2017
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 7 Jan 2017 [8th last week]
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 23 Jan 2017 [6th last week]
|8||93||The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century
Vanderbilt University - Law School
Date posted to database: 15 Dec 2016 [7th last week]
|9||73||The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow and Ankur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 [new to top ten]
|10||69||Police Interrogation, False Confessions, and Alleged Child Abuse Cases
Richard A. Leo
University of San Francisco - School of Law
Date posted to database: 18 Jan 2017 [new to top ten]
Friday, February 17, 2017
From The Bismark Tribune, via NACDL news scan:
Raissa Carpenter, a public defender for accused robber and attempted murderer Javontez Barnes, told North Central District Court Judge Richard Hagar Thursday that the state's attorney's office claimed Marsy's Law is the reason it turned over documents in the Barnes case with the names and addresses of alleged victims heavily redacted. She said public defender offices across the state have been consulted and no other office has reported any changes in the discovery process or that state's attorney's offices have refused to identify victims in discovery documents. Carpenter said she needs to know the names of the victims and their addresses to begin preparing a defense.