May 14, 2011
Abrams on Deterrence and Sentencing Enhancements
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.
Baker on Immigration Reform and 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.
Taslitz on Prosecuting the Informant Culture
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.
Allen on Standards of Proof
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.
May 12, 2011
Alesini and La Ferrara on Testing Racial Bias in Capital Sentencing
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.
Baxter on Budgetary Crises and Appointed Counsel
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.
May 11, 2011
Appleman on the Community Right to Counsel
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.
Critically, this collective right to counsel has import for our current regime of criminal punishment and sentencing. Since the Court has consistently relied on the colonial and Founding-era history to chart the boundaries of the modern right to counsel, we must fully understand the contours and ramifications of the historical right to counsel to plot our future path.
Moreover, there are some important implications of my historical findings on the future of the right to counsel. I contend that when applied, the collective right to counsel has important implications for three aspects of the right to counsel: 1) self-representation; 2) appointed counsel; and 3) ineffective assistance of counsel, particularly in light of Padilla v. Kentucky. I conclude that invoking a collective right to counsel alongside an individual right to counsel would help ensure better outcomes for both criminal defendants and their communities.
Hobel on the Superior Orders Defense and Good Faith Reliance on 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.
Part I of the Note discusses the development of the modern superior orders defense in international law and its general incorporation into national military laws, including the Uniform Code of Military Justice. Part II analyzes recent U.S. law and practice and concludes that it may deviate from the international legal standard for the superior orders defense. Part III suggests means through which U.S. practice may be brought back into conformity with the international standard, while at the same time contributing to its positive development.
May 10, 2011
Friedman & Siegel on Third Party Consent Under the Massachussetts Constitution
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.
Stoughton on Vehicle Searches Incident to Arrest
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.
Decisions that, like Gant, have far less effect than intended result largely from an informational deficit about how law enforcement officers go about making arrests and conducting searches. Existing Fourth Amendment scholarship discusses law enforcement practices in cursory or conceptual fashion at best, and academic attempts to describe police practices have thus far been frustrated by the difficulty of obtaining detailed information. This Note addresses that deficiency by providing a descriptive analysis of common law enforcement arrest and search procedures. The information on arrests and searches in this Note can both guide future scholarship and reconcile the disconnect between judicial intention and the practical effect of a decision.
Murphy on DNA and the Fifth Amendment
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.
May 9, 2011
Berger on Metaphor, Narrative, and the Guilty Plea
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.
The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, the article uncovers a few of the metaphorical frames and narrative paths that exist in practice. In the guided exploration, to illustrate the process of excavating and re-shaping persuasive arguments, the article explores the storytelling and framing of the briefs (including the brief of the NAACP Legal Defense Fund) and the majority (Justice Douglas') and dissenting (Justice Harlan's) opinions in Boykin v. Alabama, the U.S. Supreme Court decision requiring an affirmative showing that a guilty plea was entered knowingly and voluntarily.
Smith on Localism and Capital Punishment
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.
As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism in the death penalty. Localism, properly viewed, is not entirely negative and may actually be quite positive. Second, and more fundamentally, there is every reason to believe the “politics of death” would operate, at the state level, to defeat the salutary purposes of Professor Gershowitz’s reforms. Thus, as intriguing as it is, the prospect of statewide enforcement holds little promise as a means of rationalizing the administration of the death penalty.
Kirk on Residential Change and Recidivism
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.
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May 8, 2011
Leader-Elliott on Duff's "Answering for Crime"
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.