CrimProf Blog

Today's Chuckle: Flipping off the Police

The Colbert Report has this video profile of Robert Ekas, who explains how his practice of flipping off police officers helps make us all more free. CrimProf Ira Robbins (pictured) is featured discussing the constitutional dimensions.

Hashimoto on Class

Erica J. Hashimoto  (University of Georgia Law School) has posted Class Matters on SSRN. Here is the abstract:

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

Smith on Strickland Claims

Stephen F. Smith  (Notre Dame Law School) has posted Taking Strickland Claims Seriously on SSRN. Here is the abstract:

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or on first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 668 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line of recent Supreme Court cases that have breathed new life into Strickland as a meaningful guarantee of effective defense representation. These cases - all of which involved sentences of death - pointedly reject the understanding of Strickland that made it exceedingly difficult to prevail on ineffective-assistance claims. Although the new line of Strickland cases were undoubtedly motivated by concerns about the proper administration of the death penalty, the more rigorous understanding of Strickland should not be limited to capital cases. Whether or not the death penalty is at stake, appellate courts should be vigilant in policing the effectiveness of defense attorneys so that the determinative factor in criminal proceedings will be the strength of the government’s case on the merits, not the weakness of the defense put forth by the lawyers for the defendants.

Austin on Victim Impact Videos

Regina Austin  (University of Pennsylvania Law School) has posted Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos? (Cardozo Law Review, Vol. 31, p. 979, 2010)  on SSRN. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies. The common reception of home photographs and moving images affects the interpretation of victim impact videos. As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence. He wound up with a judgment of life without the possibility of parole. Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment. Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder. Finally, the conclusion offers recommendations for the admission of victim impact videos.

Schedule for 2010 Law and Society Shadow Crim Prof Conference

Here's the schedule for this great looking event, organized by Dan Markel and Alice Ristoph, to be held in Chicago. A wonderful line up, and the Cubs won't yet be mathmatically eliminated:

Thursday May, 27

8:15am to 10:00am

　 　 　 　Police and the Courts: Judicial Management and Evaluation of Law Enforcement Activity 1110

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10 Session Participants:

Chair: Richard E Myers (University of North Carolina) 

The Perennial Police Gaming Problem and the Need for Articulation-Forcing and Data-Development Rules in Constitutional Criminal Procedure *Mary D. Fan (American U/U of Washington)

GPS Tracking as Search and Seizure *Bennett L. Gershman (Pace University)

Rethinking Reasonable and Articulable Suspicion *Richard E Myers (University of North Carolina)

Judging Police Lies: An Empirical Perspective *Melanie D. Wilson (University of Kansas)

　

10:15am to 12:00pm

　 　 　 　Author Meets Reader--Juvenile Justice: The Fourth Option, by Mark Fondacaro and Christopher Slobogin 1212

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 12

Session Participants:

Chair: Hillary B. Farber (Northeastern University)

Author: Christopher Slobogin (Vanderbilt University)

Reader: Fabio Arcila (Touro Law School)

Reader: Tamar R. Birckhead (University of North Carolina, Chapel Hill)

Reader: Daniel Filler (Drexel University)

Reader: Melissa Hamilton (University of Toledo)

Reader: Erik Luna (Washington & Lee University)

Reader: Giovanna Shay (Western New England College)

2:30pm to 4:15pm

　 　 　 　Criminal Law 01--Children and Families in Criminal Law 1410

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Tamar R. Birckhead (University of North Carolina, Chapel Hill)

Competence and Compellability of Parents as Witnesses against Their Children: A Comparative Perspective between the United States and Australia *Hillary B. Farber (Northeastern University)

Special Arrangement *Catherine M. Grosso (Michigan State University)

Domestic Violence and State Intervention in the American West and Australia, 1860-1930 *Carolyn Ramsey (University of Colorado)

Chasing Science: The Troubling Case of Shaken Baby Syndrome *Deborah Tuerkheimer (University of Maine)

Discussant: Melissa Hamilton (University of Toledo)

　

　

Friday May, 28

8:15am to 10:00am

　 　 　 　Criminal Law 02--Author Meets Reader--Bentham to Blackstone: The Nineteenth Century Transformation of Criminal Justice, by Donald Dripps 2110

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

　Chair: Carolyn Ramsey (University of Colorado)

Author: Donald Dripps (San Diego Law School)

Reader: Katherine Darmer (Chapman University)

Reader: Andy Leipold (University of Illinois, Champaign)

Reader: Wes Oliver (Widener University)

Reader: Ronald Wright (Wake Forest University)

　

10:15am to 12:00pm

　 　 　 　Criminal Law 03--The Agents and Subjects of Criminal Law: Officers, Entities, and Individuals 2210

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Dan Markel (Florida State University) 

Torture and Cognitive Illiberalism *Donald Braman (George Washington University), Ryan Goodman (New York University), David Hoffman (Temple University), Dan Kahan (Yale University)

Punishing Entities (Civilly)*Dan Markel (Florida State University)

Bill Stuntz and the Principal-Agent Problem in American Criminal Law *Richard H. McAdams (University of Chicago)

　

　

12:30pm to 2:15pm

　 　 　 　Criminal Law 04--Author Meets Reader--Victims’ Rights and Victims’

Wrongs: Comparative Liability in Criminal Law, Vera Bergelson 2310

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Anthony M. Dillof (Wayne State University)

Author: Vera Bergelson (Rutgers University, Newark)

Reader: Luis E. Chiesa (Pace University)

Reader: Brian Gallini (University of Arkansas)

Reader: Cecelia Klingele (University of Wisconsin)

Reader: Susan Rozelle (Stetson University)

　

　

2:30pm to 4:15pm

　 　 　 　Criminal Law 05--Problem Solving in Criminal Justice 2410

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Eric J Miller (Saint Louis University) 

Quasi-Crime and Quasi-Punishment: Criminal Process Effects of Immigration Status *Gabriel Jack Chin (University of Arizona), Doralina Skidmore (University of Arizona)

Another Glance toward the Mentally Ill Offenders: Should We Change Departments?*Renata F de Oliveira (Universidade do Minho), Rui A. Gonçalves (Universidade do Minho)

Supervision Courts: Rethinking the Rationale for the Problem Solving Court Movement *Eric J Miller (Saint Louis University)

Advising Defendants on the Immigration Consequences of Criminal Convictions: Whose Role Is It, Anyway?*Yolanda Vazquez (University of Pennsylvania)

　

Saturday May, 29

8:15am to 10:00am

　 　 　 　Criminal Law 06--Criminal Procedure: Adjudication 3110

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Adam M Gershowitz (University of Houston) 

Judging DWI Trials: The Case for Eliminating the Right to Jury Trials for Misdemeanor DWI Cases *Adam M Gershowitz (University of Houston)

Double Jeopardy and Mixed Verdicts *Lissa Griffin (Pace University)

Jury 2.0 *Caren M Morrison (Georgia State University)

Big Law's Sixth Amendment: The Movement of the White-Collar Bar into Large Law Firms *Charles Weisselberg (University of California, Berkeley), *Su Li (University of California, Berkeley)

　

　

10:15am to 12:00pm

　 　 　 　Criminal Law 07--Punishment Theory 3210

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Marc O. DeGirolami (St. John's University) 

 Punishment, Permissibility, and State Intention *Vincent Chiao (Harvard University)

Criminal Theory as History of Ideas: The Thought of James Fitzjames Stephen *Marc O. DeGirolami (St. John's University)

Free Will Ideology and the Moral Status of Punishment *John Humbach (Pace University)

Punishment's Justification *Jeffrey Renz (University of Montana)

Discussant: Matthew Lister (University of Pennsylvania)

　

2:30pm to 4:15pm

　 　 　 　Criminal Law 08--Topics in Criminal Law Theory 3410

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Mark D. White (CUNY, College of Staten Island) 

Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs *Anthony M. Dillof (Wayne State University)

You Know You Gotta Help Me Out *David Gray (University of Maryland)

The War on Drugs Turns 40 *Alex Kreit (Thomas Jefferson School of Law)

Tailoring Objective Standards to Individuals *Kevin C. McMunigal (Case Western Reserve University)

The Law, Economics, and Philosophy of Double Jeopardy Protection *Mark D. White (CUNY, College of Staten Island), Kaia Huus (CUNY, College of Staten Island)

4:30pm to 6:15pm

　 　 　 　Criminal Law 09--Race and Criminal Justice 3510

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10

Chair: Brooks Holland (Gonzaga University)

Masculinity and the Gates Arrest: Two Professors Share Their Experiences *Frank R Cooper (Suffolk University), *Josephine Ross (Howard University)

Racial Profiling and a Punitive Exclusionary Rule *Brooks Holland (Gonzaga University)

The North Carolina Racial Justice Act Study: Preliminary Findings on the Role of Race in the North Carolina Capital Punishment System*Catherine M. Grosso (Michigan State University), *Barbara O'Brien (Michigan State University)

Under the Influence: Implicit Bias, Proactive Policing, and the Fourth Amendment *L. Song Richardson (DePaul University)

Discussant: Rick Banks (Stanford University) rbanks@stanford.edu

　

Sunday May, 30

8:15am to 10:00am

　 　 　 　Criminal Law 10--Author Meets Reader--Knowledge as Power, by Wayne Logan 4105

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 05

Chair: Corey Rayburn Yung (John Marshall Law School)

Author: Wayne Logan (Florida State University) wlogan@law.fsu.edu

Reader: Douglas Berman (The Ohio State University Moritz College of Law)

Reader: Arnold Loewy (Texas Tech University School of Law)

Reader: Mary Kreiner Ramirez (Washburn University School of Law)

Reader: Monica Williams (University of California, Davis)

Chandler on Neuroscientific Evidence for Lie Detection

Jennifer A. Chandler (University of Ottawa - Faculty of Law) has posted Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection (Dalhousie Law Journal, Vol. 33, 2010) on SSRN. Here is the abstract:

How will the courts react to the emerging technology of detecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highly reliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the “mystique of science” and that the justice system would be “dehumanized.” The legal justifications for rejecting polygraph evidence are explored in order to illustrate that the judicial resistance to lie detection technologies, including neuro-imaging, can be expected to follow a similar pattern.

The key determinant of whether courts are likely to accept neuroscientific evidence for the purpose of lie detection is the degree to which this evidence is considered to be reliable. Competing concerns about the “dehumanization” of the justice system, or the customary judicial attachment to protecting credibility determination as a purely human function, are unlikely to be able to overcome the pressure to adopt reliable neuroscientific technologies for lie detection should such technologies develop. This is because technologies that are widely accepted as reliable cannot be permitted to remain outside the justice system to deliver their own verdicts incompatible with those of the courts. The continued legitimacy of the justice system cannot tolerate this. The rules of evidence and, in particular, the constitutional right to make full answer and defense are the legal mechanisms by which this accommodation would take place.

Wolitz on Innocence Commissions and Post-Conviction Review

David Wolitz (Georgetown University Law Center) has posted Innocence Commissions and the Future of Post-Conviction Review (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:

In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.

Berman on Two Kinds of Retributivism

Mitchell N. Berman  (University of Texas School of Law) has posted Two Kinds of Retributivism on SSRN. Here is the abstract:

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

Whether or not it is ultimately persuasive, consequentialist retributivism is a fairly straightforward theory of, or justification for, punishment. Roughly, it rests on the claims that the suffering of wrongdoers is good or valuable in itself and that the state has reason (of some weight) to bring about this good or valuable state of affairs. Non-consequentialist retributivism is more difficult to formulate and defend. So this essay critically assesses some of the more promising routes to its vindication. It argues that the split between consequentialist and non-consequentialist retributivism reduces most naturally to a disagreement regarding precisely what it is that wrongdoers deserve – what is (to coin a term) wrongdoers’ “desert object.”

Philosophers of the criminal law – retributivists and anti-retributivists alike – commonly say that, on the retributivist account, wrongdoers deserve “to suffer” or “to be punished.” Very rarely do theorists treat these two formulations as meaningfully different, let alone do they explain why one formulation of the retributivist desert object is more accurate than the other, or why some third formulation is preferable to both. But if, as is commonly contended, desert is central to retributivism (in both consequentialist and non-consequentialist guises), efforts to articulate and defend wrongdoers’ desert object in careful and precise terms might make it easier for persons with retributivist sympathies or sensibilities to choose intelligently between the two kinds of retributivism.

Jones & Kurzban on Intuitions of Punishment

Owen D. Jones (pictured) and Robert Kurzban (Vanderbilt University - School of Law & Department of Biological Sciences and University of Pennsylvania - Department of Psychology) have posted Intuitions of Punishment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.

"Secrecy Shrouds NYPD's Anti-Terror Camera System"

City Limits has the story:

The New York Police Department is spending $160 million in city and federal funding on a massive surveillance network of video cameras and license plate readers for Lower and Midtown Manhattan. Despite the investment of public funds, NYPD refuses to reveal much of what it will purchase under the plan, how the costs are being shared, how data will be stored or used—or even what broad Homeland Security priorities the high-tech system is supposed to support.

Braman, Kahan & Hoffman on Punishment Naturalism

Donald Braman (George Washington University - Law School; pictured), Dan M. Kahan (Yale University - Law School) and David A. Hoffman (Temple University - James E. Beasley School of Law) have posted A Core of Agreement (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract:

In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, we reiterate our claim that RKJ’s finding of such a “core” - while of considerable academic interest - does not have any normative or prescriptive upshot for debates about issues at the core of political contention and law-reform efforts in criminal justice - including important ones over the definitions of rape, homicide, domestic violence, and fraud.

Top-Ten Recent SSRN Downloads

are here.The usual disclaimers apply.

Rank	Downloads	Paper Title
1	302	The Case Against the Goldstone Report: A Study in Evidentiary Bias Alan Dershowitz, Harvard Law School, Date posted to database: January 27, 2010 [2nd last week]
2	297	Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois, Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology, Date posted to database: March 4, 2010 [3rd last week]
3	270	The Shadow of State Secrets Laura Donohue, Georgetown University Law Center, Date posted to database: March 8, 2010 [4th last week]
4	233	'The Look in His Eyes': The Story of State v. Rusk and Rape Reform Jeannie Suk, Harvard University - Harvard Law School, Date posted to database: February 3, 2010 [5th last week]
5	215	We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging Kenworthey Bilz, Northwestern University - School of Law, Date posted to database: February 5, 2010 [6th last week]
6	176	Twenty-Five Years of Social Science in Law John Monahan, Laurens Walker, University of Virginia School of Law, University of Virginia School of Law, Date posted to database: February 26, 2010 [9th last week]
7	171	Taxing Punitive Damages Gregg D. Polsky, Dan Markel, Florida State University - College of Law, Florida State University College of Law, Date posted to database: June 19, 2009 [8th last week]
8	160	Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint William W. Berry, University of Mississippi School of Law, Date posted to database: March 3, 2010 [10th last week]
9	156	The Undiscovered Country: Execution Competency & Comprehending Death Jeffrey L. Kirchmeier, CUNY School of Law, Date posted to database: February 5, 2010 [new to top ten]
10	154	Recognizing Constitutional Rights at Sentencing F. Andrew Hessick, Carissa Byrne Hessick, Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law, Date posted to database: March 3, 2010 [new to top ten]