Saturday, May 14, 2011
David Abrams (University of Pennsylvania) has posted Estimating the Deterrent Effect of Incarceration Using Sentencing Enhancements on SSRN. Here is the abstract:
Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on gun law results in a roughly 5 percent decline in gun robberies within the first three years. This result is robust to a number of specification tests and does not appear to be associated with large spillovers to other types of crime.
Scott Baker (Stanford University - Department of Economics) has posted Effects of the 1986 Immigration Reform and Control Act on Crime on SSRN. Here is the abstract:
In the late 1970's, rates of illegal immigration into the United States increased dramatically. This increase led to pressure on the federal government to find some way of dealing with the immigrants, culminating in the 1986 Immigration Reform and Control Act (IRCA). This paper seeks to examine the effects that the 1986 IRCA, which legalized over 2.5 million illegal aliens, had on the commission of crime in the United States. I find evidence that IRCA applicants are associated with higher crime rates prior to legalization and that, subsequent to legalization, this association disappears. I find drops in crime of approximately 1%-4% associated with one percent of the population being legalized, primarily due to a drop in property crimes. This fall in crime is equivalent to 80,000-320,000 fewer crimes committed each year due to legalization. Finally, I calibrate a labor market model of crime using empirical wage and employment data and find that much of the drop in crime can be attributed to greater job market opportunities among those legalized by the IRCA.
Professor Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice (2009), lays out the failures of our current system of over-reliance on criminal informants. Natapoff addresses first the internal costs of these policies for the accuracy of trial determinations and the protection of an accused's constitutional rights. But she also addresses the external costs on families, neighborhoods, and the entire polity. She suggests ways to improve the system, not eliminate it, because snitches, properly used, serve important social purposes. This essay builds on Natapoff's work by addressing the ethical obligations of the American prosecutor in dealing with snitches individually and with the snitching system. Tracking Natapoff's division of costs into internal and external categories, this piece argues that prosecutors simultaneously have two different duties, one to the accuracy of trial determinations and the protection of constitutional rights, the other to broader groups and to the state and nation. The essay discusses the sources and nature of these duties and their practical implications, including addressing the imperative to combat otherwise-hard-to-prosecute crime.
Ronald J. Allen (Northwestern University Law School) has posted Standards of Proof and the Limits of Legal Analysis on SSRN. Here is the abstract:
This article was prepared for a conference in Girona, Spain, on Standards of Proof and Scientific Evidence. The article demonstrates, first, the analytical power under certain limiting assumptions of treating burdens of persuasion as conventional probability measures. It then demonstrates the remarkable inadequacy of that conceptualization once the limiting assumptions are relaxed as empirical descriptions of the relevant phenomena, and further that this inadequacy suggests that the analytical tools being employed misconceive rather than enlighten the object of inquiry. Alternative ways of analyzing the objects of inquiry are briefly proposed and discussed.
Thursday, May 12, 2011
Alberto F. Alesina and Eliana La Ferrara (Harvard University - Department of Economics and University of Bocconi - Innocenzo Gasparini Institute for Economic Research (IGIER)) has posted A Test of Racial Bias in Capital Sentencing on SSRN. Here is the abstract:
This paper proposes a test of racial bias in capital sentencing based upon patterns of judicial errors in lower courts. We model the behavior of the trial court as minimizing a weighted sum of the probability of sentencing an innocent and that of letting a guilty defendant free. We define racial bias as a situation where the relative weight on the two types of errors is a function of defendant and/or victim race. The key prediction of the model is that if the court is unbiased, ex post the error rate should be independent of the combination of defendant and victim race. We test this prediction using an original dataset that contains the the race of the defendant and of the victim(s) for all capital appeals that became final between 1973 and 1995. We find robust evidence of bias against minority defendants who killed white victims: in Direct Appeal and Habeas Corpus the probability of error in these cases is 3 and 9 percentage points higher, respectively, than for minority defendants who killed minority victims.
Heather Baxter (Nova Southeastern University - Shepard Broad Law Center) has posted Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis (Michigan State Law Review, Vol. 2010, p. 341, 2010) on SSRN. Here is the abstract:
This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country. This Article analyzes specific budget cuts from various states and how those cuts have impacted indigent defense in this country. Further, the Article highlights recent litigation surrounding this issue from four states: Florida, New York, Michigan and Kentucky. It proposes that, while litigation may be one way to reform the system, fundamental reform is necessary in the criminal justice system. The Article offers three specific suggestions on how to bring Gideon back to life: change the tough on crime attitude to free up much needed funding; reform the overburdened misdemeanor system; and implore more prosecutorial discretion in charging crimes.
Wednesday, May 11, 2011
Contrary to popular understanding, the Sixth Amendment right to counsel was originally a community right. The existing historical evidence reveals that what we now interpret as an individual right to counsel was, in the colonial era, commonly understood as a right that belonged to the general community. As a result, the conventional history is both incorrect and incomplete, misinforming our current jurisprudential and social understanding of the right to counsel. In response, this Article provides the missing historical and constitutional reasoning for the creation of the Sixth Amendment right to counsel.
Mark Hobel has posted 'So Vast an Area of Legal Irresponsibility?' The Superior Orders Defense and Good Faith Reliance on Advice of Counsel (Columbia Law Review, Vol. 111, p. 574, 2011) on SSRN. Here is the abstract:
This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled by government lawyers prior to using techniques that likely constituted torture. However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.
Tuesday, May 10, 2011
Lawrence Friedman (pictured) and David M. Siegel (New England School of Law and New England Law - Boston) have posted Criminal Law – Emphasizing Privacy of the Home and Limiting Third Party Consent Under the State Constitution (Massachusetts Law Review, Vol. 93, No. 3, 2011) on SSRN. Here is the abstract:
The Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Porter P. makes four important contributions to search and seizure jurisprudence under the Massachusetts Declaration of Rights. First, the decision reinforces the significance of residential privacy protection. Second, the decision specifies the requirements for valid third party consent for police entry to search. Third, the decision resolves the applicability of the doctrine of apparent authority, under which police searches authorized by one who appears to but in fact lacks authority to consent, may nevertheless be upheld. Finally, the decision shows the court’s commitment to extend state constitutional privacy protections beyond those provided by the Fourth Amendment to the United States Constitution. The court’s treatment of third party consent sets forth a new standard that third parties, either coinhabitants or landlords, must meet in order to exercise actual authority to consent to a search. Further, in addressing third party consent, the court explicitly adopts the doctrine of apparent authority under the state constitution and establishes steps police must take for entries and searches based upon apparent authority to survive. Importantly, the decision builds logically upon state constitutional precedents and rejects the cost-benefit and historical analyses of search and seizure issues often favored by the federal courts.
Seth Stoughton has posted Arizona v. Gant: The Illusory Restriction of Vehicle Searches Incident to Arrest
(Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
In 2009, the Supreme Court overturned thirty years of precedent with a decision that purported to dramatically cut back on the ability of law enforcement officers to conduct warrantless vehicle searches incident to the arrest of a vehicle occupant. Scholars and commentators celebrated Arizona v. Gant’s constraint of police, and subsequent scholarship has focused exclusively on peripheral concerns such as alternative justifications for warrantless searches and Gant’s effect on non-vehicle searches. This Note challenges the core assumption that Gant will substantially limit vehicle searches incident to arrest, contending that Gant is far more permissive than it appears. In most cases, Gant will do nothing to limit warrantless vehicle searches incident to arrest.
Challenges to the collection and databasing of DNA samples almost always proceed under the Fourth Amendment. The Fifth Amendment is rarely considered a viable legal claim, largely due to the longstanding distinction between testimonial evidence, which receives Fifth Amendment protection, and non-testimonial evidence, which does not. In this short essay, written as a chapter in a book celebrating the life and work of Professor William J. Stuntz, I draw upon United States v. Hubbell as a means of arguing that the Fifth Amendment might in fact cover certain kinds of DNA investigative activity. Specifically, I analogize a requirement to produce documents otherwise unknown to investigators, which the Court found to constitute self-incrimination, to a requirement that defendants provide a DNA sample not to match a specific crime scene, but so that investigators can compile DNA databases to troll for matches. In both cases, the concern is that investigators compel information from a suspect in order to create rather than confirm suspicion, and thus the Fifth Amendment ought to apply.
Monday, May 9, 2011
Linda L. Berger (Mercer University School of Law) has posted The Lady, or the Tiger? A Field Guide to Metaphor and Narrative (Washburn Law Journal, Vol. 50, p. 275, 2011) on SSRN. Here is the abstract:
Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate - with images and stories when possible - how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion.
Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities.
David Kirk (University of Texas at Austin) has posted Residential Change as a Turning Point in the Life Course of Crime: Desistance or Temporary Cessation? on SSRN. Here is the abstract:
Many former prisoners return home to the same residential environment, with the same criminal opportunities and criminal peers, where they resided before incarceration. If the path to desistance from crime largely requires knifing-off from past situations and establishing a new set of routine activities, then returning to one’s old environment and routines may drastically limit an ex-prisoner’s already dismal chances of desisting from crime. This study tests these ideas by examining how forced residential migration caused by Hurricane Katrina affected the likelihood of reincarceration among a sample of ex-prisoners originally from New Orleans. Property damage from the hurricane induced some ex-prisoners to move to new neighborhoods who otherwise would have moved back to their former neighborhoods. Findings from an instrumental variables survival analysis reveal that those parolees who moved to a new parish following release were substantially less likely to be reincarcerated during the first 3 years after release than ex-offenders who moved back to the parish where they were originally convicted. Moreover, at no point in the 3-year time period was the hazard of reincarceration greater for those parolees who moved than for those who returned to the same parish.
|1||518||The Law Enforcement Surveillance Reporting Gap
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011
|2||413||Fetal Pain, Abortion, Viability and the Constitution
I. Glenn Cohen, Sadath Sayeed,
Harvard Law School, Harvard University - Harvard Medical School,
Date posted to database: April 11, 2011
|3||270||Why Courts Should Not Quantify Probable Cause
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 30, 2011 [6th last ranking]
|4||227||FCPA Sanctions: Too Big to Debar?
Drury D. Stevenson, Nicholas J. Wagoner,
South Texas College of Law, South Texas College of Law,
Date posted to database: April 18, 2011 [new to top ten]
|5||193||Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea
Gabriel J. Chin,
University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2011 [new to top ten]
|6||190||The Authority of Law
University of Michigan Law School,
Date posted to database: March 8, 2011 [8th last ranking]
|7||189||Can Targeted Killing Work as a Neutral Principle?
New York University (NYU) - School of Law,
Date posted to database: March 18, 2011 [10th last ranking]
|8||176||From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance
Junichi P. Semitsu,
University of San Diego School of Law,
Date posted to database: March 10, 2011 [new to top ten]
|9||169||Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and ‘Rotten Social Background’
Paul H. Robinson,
University of Pennsylvania Law School,
Date posted to database: March 14, 2011 [new to top ten]
|10||161||Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?
Instituto de Investigaciones Filosoficas, UNAM,
Date posted to database: April 21, 2011 [new to top ten]
Sunday, May 8, 2011
Ian D. Leader-Elliott (University of Adelaide) has posted A Critical Reading of R.A Duff, 'Answering for Crime' on SSRN. Here is the abstract:
Answering for Crime is an essay in rational reconstruction of the substantive criminal law. It takes the presumption of innocence as the central guiding principle for the reconstructive project. The proposed reconstruction is based on principles drawn from the law of offences against the person, in particular, rape and murder. Professor Duff opposes tendencies to unprincipled legislative pragmatism with a normative theory that would require each criminal offence to proscribe an identifiable public wrong, before a citizen could be required to answer to a court for the offence. The normative theory turns on the distinction between the citizens' obligation to a court, when the prosecution must make out its case for conviction by establishing the commission of a public wrong, and the citizens' obligation to answer for an offence, by way of justification or excuse, once the public wrong has been been established. Exceptions would be possible, but they would be infrequent and they would require justification consistant with the normative theory. This review questions the normative significance of the divide between offence and defence, and questions as well the adequacy of the foundations for the reconstruction. The criminal law is more varied and various in its sources, structure and principles of development than Answering for Crime allows.