CrimProf Blog

Bradford & Jackson on Cooperating with the Police

Ben Bradford and Jonathan Jackson  (pictured) (Scottish Centre for Crime and Justice Research and London School of Economics & Political Science - Methodology Institute) have posted Cooperating with the Police: Social Control and the Reproduction of Police Legitimacy on SSRN. Here is the abstract:

Calling upon and assisting police officers are acts of public cooperation that link informal and formal mechanisms of social control. An in-depth study of seven London neighborhoods investigates the relationships between (a) cooperation with the police, (b) public trust in police fairness and effectiveness, and (c) public perceptions of everyday social regulation processes. Cooperation with the police is associated first with high levels of public trust in procedural fairness, second with confidence that local residents will intervene on behalf of the collective good, and third with heightened concerns about disorder and the loss of authority and discipline in society. We conclude with the idea that cooperation is shaped by trust in the police and is reinforced and challenged by a complex set of relational concerns. Moreover, by recognizing and supporting the function of the police to fight crime and administer justice, acts of cooperation both constitute and confer police legitimacy.

Markel on Retributivism and Minors

Dan Markel  (Florida State University College of Law) has posted  May Minors Be Retributively Punished after Panetti (and Graham)? (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:

In this brief essay, I try to draw some connections between the Supreme Court’s recent decision in Graham v. Florida and its reasoning in a significant but not yet sufficiently appreciated 2007 decision in Panetti v. Quarterman. Specifically, I will argue that the outcome in Graham coheres startlingly well with the reasoning in Panetti, a case prohibiting the execution of a defendant who was deemed presently incompetent. These connections are present, I believe, but the Court still seems unaware of them; the best evidence of this conclusion is that Graham nowhere cites Panetti for support.

From the standpoint of a humane and compelling conception of retributive justice, this omission is lamentable. Once Graham is properly understood in light of Panetti, along with the Court’s other precedents, the grounds for an unsettling conclusion take root: specifically, that the Eighth Amendment likely forbids state-imposed retributive punishment against minors. To be sure, Graham doesn’t say anything like that. Indeed, I want to emphasize that the inferences I draw for capital and noncapital punishment are not stripped from the face of the Panetti opinion. Instead, they are predicated upon the ratio decidendi of the case - the rationale that makes the best sense of the holding in this otherwise potentially obscure Supreme Court opinion. Thus, what I hope to show is that Graham, like Roper and Atkins, is a case whose holding is evidence of a rationale I think is implicit in and compelled by the logic embraced by the Court in Panetti. That rationale would, I believe, require the further conclusion that minors are not fit objects for the state’s blaming practices associated with retributive punishment.

Depriving the state of its authority to punish minors in the name of retribution does not entail that crime by youth must be left unheeded, but rather that the approach must be one combining rehabilitation with other methods of social self-defense against the specific threat posed by that juvenile offender. What’s precluded, in other words, is the condemnatory rebuke associated with retributive justice properly conceived and implemented.

This is a draft; comments and corrections are invited. The argument of the paper draws on claims developed more clearly and at length in a previous article of mine: Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 Nw U. L Rev. 1163 (2009), available on my SSRN page. This particular paper is part of an upcoming colloquium reflecting on Graham and the Eighth Amendment in the Federal Sentencing Reporter. Other contributors include Alice Ristroph, Eva Nilsen, Richard Frase, John Stinneford, Rachel Barkow, David Gray, and Youngjae Lee. Kudos as always to Michael O'Hear for putting this conversation together.

The Federalization of Noncriminal Law: Internet Gambling

The New York Times has this story headlined Congress Rethinks Its Ban on Internet Gambling:

WASHINGTON — With pressure mounting on the federal government to find new revenues, Congress is considering legalizing, and taxing, an activity it banned just four years ago: Internet gambling.

On Wednesday, the House Financial Services Committee approved a bill that would effectively legalize online poker and other nonsports betting, overturning a 2006 federal ban that critics say merely drove Web-based casinos offshore.

The House of Representatives, Criminal Justice, and the Cocaine Sentencing Disparity

Jurist chronicles these notable developments:

• "US House approves commission to reform criminal justice system"
• "US House approves bill to reduce cocaine sentencing disparity"

 

"Ruling Against Arizona Is a Warning for Other States"

The New York Times has this analysis of yesterday's decision.. It also provides this link to the opinion.

Gross and O'Brien on False Convictions

Samuel R. Gross and Barbara O'Brien  (University of Michigan Law School and Michigan State University - College of Law) have posted Reply to Richard A. Leo and Jon B. Gould
(Ohio State Journal of Criminal Law, Vol. 9, 2010) on SSRN. Here is the abstract:

In a recent article in the Ohio Journal of Criminal Law Professors Richard Leo and Jon Gould criticize some of our research on false convictions. In this brief reply we dispute some of their methodological assertions, and point out that while Leo and Gould take issue in some detail with our cautious and generally pessimistic view of research in this area, they do not actually dispute any of our empirical conclusions.

"Civilians take on police work in SFPD program"

From the San Francisco Chronicle:

Fingerprints and DNA evidence are often not collected, Police Chief George Gascón said. To do so, a separate crime scene technician has to be called out, which could stretch into the next day.

"When the police get there, you've been waiting for three, four, five hours," Gascón said. "By this time, you're really fit to be tied."

That's all supposed to change under a pioneering and controversial test program included in the city's new budget that will use civilian investigators to respond to nonviolent crimes like burglaries or car break-ins, freeing up police officers to focus on crimes in progress or dangerous offenders.

Kotch & Mosteller on the Death Penalty and the North Carolina Racial Justice Act

Seth Kotch and Robert P. Mosteller (pictured) (University of North Carolina (UNC) at Chapel Hill - Center for the Study of the American South and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina (North Carolina Law Review, Vol. 88, No. 6, 2010) on SSRN. Here is the abstract:

In August 2009, the North Carolina Legislature enacted the Racial Justice Act (“RJA”), which commands that no person shall be executed “pursuant to any judgment that was sought or obtained on the basis of race.” One of the most significant features of the RJA is its use of statistical evidence to determine whether the race of defendants or victims played a significant role in death penalty decisions by prosecutors and jurors and in the prosecutor’s exercise of peremptory challenges. The RJA commits North Carolina courts to ensuring that race does not significantly affect death sentences.

This article examines the RJA and North Carolina’s long struggle with race and the death penalty. The first part traces the history of race and the death penalty in the state, showing that racial prejudice exerted a consistent, strong, and pernicious influence on the imposition and disposition of death sentences. From colonial times into the 1960s, the overwhelming majority of those executed were African American, and although most victims and perpetrators of crime are of the same race, the overwhelming majority of victims in cases where executions took place were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, just four whites have been executed for crimes against African American victims, all murders.

Not only does data indicate disproportionate racial impact, but events show that race frequently influenced capital prosecutions. In many cases in the first half of the twentieth century, juries sentenced African Americans to death in the shadow of lynch mobs. Newspaper reports of executions of African Americans included overtly racist images. In some instances, fairness and mercy eased the pernicious effects of prejudice. However, history shows that whether dooming African Americans or saving them from death, racial prejudice played a powerful role in the death penalty in North Carolina, enduring across the state’s history despite enormous social and legal change.

The second part of this article examines major legal changes in the modern period that may limit the influence of racial prejudice by restraining discretion. It shows that discretionary determinations by prosecutors and jurors continue, allowing racial motivation - particularly unconscious racial prejudice toward defendants or empathy for victims - to influence decisions. Some racial disparities are less extreme but have not been eliminated, and troubling features continue. For example, jury participation by African Americans has remained limited in many cases, and the disproportion of white victims seen throughout North Carolina’s history is virtually unchanged.

The task of the RJA is to ensure that the strong link between race and the death penalty shown by history is finally severed. In its concluding section, this article analyzes how the key features of the RJA will operate. That analysis, together with the historical record and legal framework of the modern death penalty, provide insight into North Carolina’s effort to eliminate the effects of race from the operation of its death penalty.

"China Pushes to End Public Shaming"

The story is in the New York Times:

BEIJING — The Chinese government has called for an end to the public shaming of criminal suspects, a time-honored cudgel of Chinese law enforcement but one that has increasingly rattled the public.

According to the state-run media, the Ministry of Public Security has ordered the police to stop parading suspects in public and has called on local departments to enforce laws in a “rational, calm and civilized manner.”

"Mel Gibson investigation focusing on medical records, text messages, sources say"

From the those-who-ignore-celebrity-cases-are-destined-to-learn-about-them-from-students file, courtesy of the Los Angeles Times:

The Los Angeles County Sheriff's Department investigation into Mel Gibson is focusing on physical evidence, witness testimony and text messages -- not highly publicized audio recordings -- to determine whether he should be charged with hitting his ex-girlfriend and/or endangering their child, law enforcement sources told The Times.

. . .

Detectives are working to overcome several obstacles to the investigation, including the fact that Grigorieva did not report the key incidents for several months and that some of the potential evidence has already been leaked to the tabloid media, sources said.

Rosenthal on Originalism, Race and Terry v. Ohio

Lawrence Rosenthal  (Chapman University - School of Law) has posted Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . . .” Terry is frequently denounced as granting the police excessively broad discretion that threatens the liberty of the innocent, and which facilitates discrimination against minorities and others that the police are all too likely to view as suspicious. Originalists attack Terry as well, claiming that it lacks adequate support in framing-era practice.

This paper, part of the 2010 Texas Tech Law Review's Fourth Amendment Symposium, offers a defense of the much-maligned Terry doctrine. It begins with an account of urban crime over the past few decades, and argues that there is a case to be made that Terry’s regime of stop-and-frisk deserves a good deal of the credit for the reductions in violent crime that major cities have experienced in recent years. It then considers the originalist attack on Terry, and argues that it runs afoul on the Achilles heel of originalism – it relies on framing era practice and understandings to flesh out the meaning of constitutional text without taking adequate account of the context in which these practices and understandings emerged. Although the historical support for Terry‘s regime of stop-and-frisk is fairly debatable, framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness. The paper finally turns to the pragmatic attacks on Terry, and after observing that the evidence that Terry has facilitated unwarranted or discriminatory police conduct is more ambiguous than the critics acknowledge, contends that theses critics undervalue the importance of Terry to saving lives in the inner city.

Block on Information Sharing and Tainted Evidence

Micah Block has published The New Silver Platter: How Today's Police are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts at The Legal Workshop. An excerpt:

[T]he availability of the hand off threatens to alter fine judgments about what constitutes good, aggressive police work and what constitutes an unreasonable invasion of privacy. It does this in at least two ways. First, the hand off makes it easier to “get away with” marginally invasive behavior because that behavior is unlikely to be scrutinized by a judge. Even for the honest officer, this may subtly influence decisions about how much marginal activity to conduct, or how to conduct marginal activity. But perhaps more importantly, if the officer believes that the hand off legally cleanses evidence obtained in a prior investigation that may or may not have been unlawful, then the officer is given to believe that under the Fourth Amendment what a suspect doesn’t know doesn’t hurt him.

"Miranda Rule Should Not Be Weakened, Former FBI Special Agent Says"

ACSBlog has the post.

"Court Under Roberts Is Most Conservative in Decades"

From The New York Times:

[T]he court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.

. . . .

Almost all judicial decisions, they say, can be assigned an ideological value. Those favoring, say, prosecutors and employers are said to be conservative, while those favoring criminal defendants and people claiming discrimination are said to be liberal.

Analyses of databases coding Supreme Court decisions and justices’ votes along these lines, one going back to 1953 and another to 1937, show that the Roberts court has staked out territory to the right of the two conservative courts that immediately preceded it by four distinct measures.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	2461	Arizona Senate Bill 1070: A Preliminary Report Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller, University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: May 29, 2010
2	385	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010
3	327	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010
4	181	Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing Babe Howell, CUNY School of Law, Date posted to database: May 18, 2010 [new to top ten]
5	147	The Conscience of a Prosecutor David J. Luban, Georgetown University Law Center, Date posted to database: May 24, 2010
6	130	From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? Henning Grosse Ruse-Khan, Max Planck Institute for Intellectual Property, Competition & Tax Law, Date posted to database: May 4, 2010
7	87	Collective Responsibility and Post-Conflict Justice Mark A. Drumbl, Washington and Lee University - School of Law, Date posted to database: May 10, 2010 [8th last week]
8	83	The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes Jordan J. Paust, University of Houston - Law Center, Date posted to database: May 2, 2010 [10th last week]
9	82	Reconsidering Reprisals Michael A. Newton, Vanderbilt University - Law School, Date posted to database: June 9, 2010 [new to top ten]
10	76	Retributivism Refined - Or Run Amok? Kenneth W. Simons, Boston University - School of Law, Date posted to database: May 17, 2010 [new to top ten]

"Rough justice: America locks up too many people, some for acts that should not even be criminal"

Doug Berman at Sentencing Law and Policy excerpts this interesting commentary from The Economist,

"Canada high court rules damages appropriate remedy for Charter rights violations"

Jurist reports on Friday's decision:

The case arose after Vancouver lawyer Cameron Ward was mistakenly arrested for making threats against then-prime minister Jean Chretien [CBC profile]. Ward was detained and eventually arrested for breach of the peace, and he and his car were searched based on the mistaken arrest. Ward filed a lawsuit alleging tort violations and violations of his Charter rights. . . . The court held that determining the appropriate remedy for a violation of Charter rights is a three-step process involving an inquiry into whether the rights were violated, a showing of why damages are an appropriate remedy and the opportunity for the government to refute the appropriateness of the damages.

"Drivers on Prescription Drugs Are Hard to Convict"

The story is in the New York Times:

The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.

The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.

“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”

Robinson on Schabas and International Criminal Law

Darryl Robinson  (Queen's University (Canada) Faculty of Law) has posted A Response to William Schabas and a Reflection on Discursive Assumptions: One Vision or Many? on SSRN. Here is the abstract:

This article critically examines some of the criticisms leveled by Professor William Schabas with respect to early policies and jurisprudence of the ICC, namely self-referrals and admissibility due to inaction. That examination serves as a springboard for broader observations about discursive assumptions in international criminal law.

One observation is that although discourse focuses on points of disagreement, it is also a vehicle through which the interpretive community implicitly absorbs and acquiesces in countless assumptions and propositions, which limit and shape legal debate.

For example, it is today an almost universally-shared belief that territorial state referrals were ‘not contemplated’ by the Rome Statute drafters and hence that they represent an ‘innovation’. This widespread belief is the diametric opposite of the actual drafting history, which expressly shows not only that territorial state referrals were repeatedly discussed but also that they were not even controversial. The controversy was whether referrals by states parties without an ‘interest’ in the situation should be permitted. Yet the distorted belief about history has framed and shaped the present legal debate. In this way, a straightforward application of the text, in a manner expressly contemplated by the drafters, has generated a significant literature and in opposite discussions about creative re-interpretations. Similarly, the widespread but incorrect conviction that Article 17 contains only the oft-cited criteria of ‘unwilling’ and ‘unable’ has generated a distorted debate about admissibility in inaction scenarios, culminating in unsubstantiated and legitimacy-draining accusations against the Court. The controversy shows the power of collective perception to reconstruct not only history but text itself.

A related observation concerns the tendency of members of the interpretive community to assume a single vision or model of the Court and to impose that expectation onto the Statute. Such arguments are easily supported by invocations of ‘drafters intent’. However, this article recommends skepticism about portrayals of the drafters as having a monolithic vision or of any single philosophy underlying the Statute. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.

"Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal"

Eugene Volokh has this post at The Volokh Conspiracy, excerpting this case.