July 16, 2011
Covey on the Causes of Wrongful Convictions
Russell D. Covey (Georgia State University College of Law) has posted Mass Exoneration Data and the Causes of Wrongful Convictions on SSRN. Here is the abstract:
What we currently know about the persons who have been wrongfully convicted is based largely on exonerations resulting from post-conviction testing of DNA. Study of those cases has produced a dataset of information about the factors that contribute to wrongful convictions and the procedures relied upon both to convict and then, later, to exonerate, those defendants. While critically important, this dataset has important limitations, chief among them is that it is largely limited to the kinds of cases in which DNA evidence is available for post-conviction testing.
Drawing on fresh empirical data, my paper attempts to improve the dataset on the wrongfully convicted by assessing another group of exonerees, those exonerated in two major scandals, the Rampart scandal in Los Angeles, and the Tulia scandal in Texas. In both of these cases, large numbers of persons were wrongfully convicted and later formally exonerated. The profile of these defendants varies dramatically from that of the typical DNA exoneree. Broadening the data set to include these exonerees should cause us to rethink the major causes of wrongful convictions and the most pressing remedial solutions to the problem.
Richardson on Marsy's Law and Parole in California
Laura Lienhart Richardson has posted Impact of Marsy’s Law on Parole in California: An Empirical Study on SSRN. Here is the abstract:
Marsy’s Law (Proposition 9) purported to increase Victims’ Rights by making significant changes to parole in California. Supporters of Marsy’s Law intended to decrease lifer inmate’s “chances” to obtain parole by statutorily lengthening the amount of time between parole hearings, and to increase victim presence at parole hearings by creating greater opportunities for victim participation.
I conducted an analysis of 211 randomly selected parole hearing transcripts in California both before and after Marsy’s Law was implemented. I found that the passage of Marsy’s Law nearly doubled the amount of time set by the Parole Board between parole hearings. It is unclear whether Marsy’s Law has increased victim participation at parole hearings or has impacted the quality of victim participation at parole hearings.
Holley on the Constitutionality of Post-Crime Guidelines Sentencing
Benjamin Holley has posted The Constitutionality of Post-Crime Guidelines Sentencing on SSRN. Here is the abstract:
United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.” Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence. The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause? A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition. This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.
July 15, 2011
Anderson on the Evolution of Burglary
Helen A. Anderson (University of Washington - School of Law) has posted From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law on SSRN. Here is the abstract:
Burglary has been evolving away from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. It expanded early on to include breaking and entering buildings, not just dwellings, and the breaking requirement was little more than symbolic in many jurisdictions. But, sometime between the publication of the 1962 Model Penal Code and today, burglary lost its core, its actus reus: “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to almost any crime that occurred indoors, and justify a significant additional penalty – even death. Burglary thus functions as a “location aggravator” for other crimes. Paradoxically, it may be the shadow of the common law crime that has obscured the breadth and significance of these changes. Burglary’s long tradition and pedigree gives an illusion of solidity to the charge, even when it no longer necessarily describes real criminal conduct beyond the target offense.
This is the first survey of burglary in the United States since the Model Penal Code. It begins with a summary of burglary’s history from the common law definition through the first two centuries of the republic, then explains the Model Penal Code proposal for burglary – as well as the Model Code authors’ misgivings about the offense. The article then looks in detail at what happened in the states after the Model Penal Code – how the common law elements continued to erode until we ended up with today’s very thin crime. The article shows what this has meant: a serious crime with significant penalties that can be invoked in a range of situations, e.g., shoplifting, hold-up of a gas station, or murder by a houseguest. It concludes that burglary’s evolution has in some instances gone too far, and no longer necessarily describes a distinct offense. It is only the memory of the common law offense that keeps courts and lawmakers from recognizing how empty the crime has become.
"UK Supreme Court bars 'secret evidence' in Guantanamo trials"
The story is at Jurist. In part:
The appellants, secret service organizations including MI5 [official website], appealing a May 2010 ruling [JURIST report], requested the creation of a "closed material procedure," saying the disclosure of their evidence to the appellees, former Guantanamo detainees, would be contrary to the public interest. This procedure would have involved a special advocate being appointed to the plaintiffs in a civil case to impartially consider the defendants' evidence but not reveal any of it to the plaintiffs. The court rejected this idea, citing the public interest immunity (PII) doctrine as more than suitable for classified information as evidence, and that it was not in the judiciary's power to allow or enforce a new doctrine. The PII allows for information to not be disclosed to opposing parties when it would not be in the public's interest.
Barnes on Measuring Racial Profiling
What if racial profiling were useful? Even, perhaps, very useful? Are the costs of racial profiling so significant that racial profiling should be banned? Courts and commentators do not ask these questions; indeed, they rarely, if ever, acknowledge that racial profiling may be useful. This paper explores what costs police would have to justify, and how they might do so in order to use racial profiling legally.
Using race as a part of a profile of criminal has some efficiency value; it is not solely (or even at all) about racial animus. Race is a marker of criminal behavior; it would be miraculous if it where not. Height, weight, gender, hair style, ear piercings, all of these characteristics almost surely delineate some difference in the commission rate of at least one crime. This is, essentially, a mathematical truism: race and crime are not independent. Because race is “useful” when “useful” is defined as “information worth more than zero,” it is important to move beyond the initial question — is it useful — to the more important question — how useful is it? What do we give up in allowing or banning racial profiling? What are courts missing when they discuss racial profiling? This paper is an attempt to get at least some of the empirics correct regarding the direct costs and benefits of racial profiling; it leaves the important research of mapping the collateral consequences of racial profiling to others.
But even when one puts aside the collateral consequences of focusing the might of the criminal justice system on one specific race, there are many complicating factors in measuring how useful racial profiling. First, how do you measure the gap in crime rates (that is, the different crime rates for different racial groups and different crimes)? Without this, no one could calibrate their behavior: police would not know how much to profile, and the courts would not know how much reliance on race in police decision-making is too much. This is also important as a policy matter, to determine what society loses if racial profiling were not allowed. To be more concrete, what if whites were twice as likely to sell cocaine as Blacks were? Does this justify profiling them? Perhaps the answer to this depends on the base rate: how much more cocaine do white people sell? Is this a difference between one and two percent, or fifteen and thirty percent of individuals who could be targeted. One needs to know more than just a single statistic. A second complicating factor, beyond the initial measurement question, is whether race is too easy to over-use. People see race quickly, and believe it is a highly salient part of a persons physical description; police might over-rely on this characteristic because it is easy to determine (or at least perceived to be so). A third complication is that race is rarely the only available information about a potential suspect, and a better question than whether race is correlated with crime rates is whether information about a suspects race adds any useful information to a profile. But, again, the chance that these two probabilities are always equal, for every type of crime and any other possible set of information is zero. Race matters. This bears emphasis not because it isn't obvious, but because many opposed to racial profiling deem it inefficient automatically; that is, they argue that racial profiling does not work because race is not a predictor of criminality.
Answering these questions is a difficult, but not insurmountable task. But these questions also suggest that a simple focus on whether race is a predictor of criminality is misplaced; the answer to that first question is yes. The more important question, which legislatures, courts, legal and economic researchers alike have generally ignored, is when and how useful racial profiling is in different situations. To answer this question, one needs to investigate the costs and benefits of racial profiling, which the above complicating factors suggest can be done, but needs more attention to the detail of the reality of the relationship of race and crime to answer. This paper seeks to quantify the costs and benefits of racial profiling, and in doing so creates new methods to control for the problem of selection bias in the data that are generally available to evaluate this question.
July 14, 2011
Rauxloh on Plea Bargaining in Germany
Regina E. Rauxloh (School of Law - University of Surrey) has posted Formalisation of Plea Bargaining in Germany - Will the New Legislation Be Able to Square the Circle? (Fordham International Law Journal, Vol. 34, pp. 296-331, 2010) on SSRN. Here is the abstract:
Although the guilty plea is unknown in the German criminal procedure, informal negotiations which can be compared to plea bargaining in common law systems, play an increasing role in the German criminal process. Like plea bargaining in England and Wales, informal agreements in Germany have long been strongly criticised.
After years of debate among academics and practitioners and developing case law on in-formal agreements, the German Federal Parliament has now passed new legislation which regulates agreements and makes them part of the formal procedure (Gesetz zur Regelung der Verständigung im Strafverfahren). This paper will discuss the development and current prac-tice of informal procedures in Germany and analyse the new legislation. It will argue that the German legislator has missed the opportunity to debate the underlying problems which made informal negotiations necessary in the first place.
Rachlinski et al. on Probable Cause, Probability, and Hindsight
Jeffrey J. Rachlinski (pictured), Andrew J. Wistrich and Chris Guthrie (Cornell Law School , Independent and Vanderbilt Law School) have posted Probable Cause, Probability, and Hindsight on SSRN. Here is the abstract:
When judges assess probable cause, they must do so either in foresight (when determining whether to issue a warrant) or in hindsight (when determining whether to allow the admission of evidence obtained without a search warrant). Although the legal standard for probable cause is the same, and the facts that might support cause are the same, judges who assess probable cause in hindsight invariably know whether a search produced incriminating evidence or not. Research on the hindsight bias suggests that judges will be unable to set aside this knowledge and judge probable cause as if they were working in foresight. In this paper, we present of three experiments in which we asked 900 state and federal judges to make judgments of probable cause either in foresight or in hindsight, in hypothetical cases. Surprisingly, we found that that judges make similar rulings on probable cause in foresight and in hindsight. We also found that hindsight appears to cloud judges’ abilities to assess the likely outcome of the search, but hindsight does not influence their legal judgments.
Dempsey on Uncooperative Victims
Michelle Madden Dempsey (Villanova University School of Law) has posted Public Wrongs and the ‘Criminal Law’s Business’: When Victims Won’t Share (CRIME, PUNISHMENT, AND RESPONSIBILITY: THE JURISPRUDENCE OF ANTONY DUFF, Rowan Cruft, Matthew H. Kramer, and Mark R. Reiff, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.
July 13, 2011
Mannheimer on Cruel and Unusual Federal Punishments
In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct. This is the result of the confluence of two trends. First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court. Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.
Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed. This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical. Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.
The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth. Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct. Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty. Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State. Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate. And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.
This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish. That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States. Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.
DeGirolami on the case against theories of punishment
Marc O. DeGirolami (St. John's University School of Law) has posted Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen (Ohio State Journal of Criminal Law, Vol. 9, 2012) on SSRN. Here is the abstract:
This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a highly prominent public intellectual of the late Victorian period. Notwithstanding Stephen’s stature and importance, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen’s ideas about the nature of punishment serves two purposes, one historical and the other theoretical.
The historical aim is to elucidate Stephen’s own thought, a subject which has been thoroughly contested and, unfortunately, deeply misunderstood. The primary culprit has been exactly the effort to pin down Stephen’s ideas about punishment as retributivist, or consequentialist, or a specific hybrid. The drive to systematize Stephen’s thought has had the regrettable effect of flattening it, in some cases unrecognizably. Though he followed Kant, Hegel, Beccaria, and Bentham, Stephen wrote at a time that preceded the full flowering of the philosophy of punishment by roughly a century, and his assumptions and arguments about the nature and purposes of punishment are an uncomfortable fit within the modern hard-edged methodology of punishment theory.
The theoretical aim concerns whether punishment theory might learn from its serious misunderstanding and misrepresentation of Stephen, whether and to what extent its own methodological assumptions ought to be adjusted in light of the paper’s historical reconstruction. The article claims that that they might be, and arguably should be. Perhaps more than any other writer on the subject, Stephen poses a powerful challenge to the methodology of systematization in punishment theory; his ideas are an extended argument that an allegiance to system renders thought about the reasons for punishment less rich and more monolithic than they otherwise might be. The article suggests, first, that punishment theorists ought to open themselves to historical scholarship as a source of illumination in fashioning, and perhaps modifying, their sophisticated normative accounts; and second, the theoretical perspective that is most capable of internalizing historical studies and ideas would adopt a pluralistic view of the justification of punishment. The reason for examining neglected historical views is that one may actually improve one’s theory by beclouding and complicating it with perspectives that do not match one’s existing prescriptive views. And the reason for inclining toward pluralistic theoretical accounts is that it is precisely their untidy and unsystematic methodological commitments which make it possible for theory to learn from history.
July 12, 2011
Cohen on Types of Defense Attorneys and Favorable Case Outcomes
Thomas H. Cohen (U.S. Bureau of Justice Statistics) has posted Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes on SSRN. Here is the abstract:
The role of defense counsel in criminal cases constitutes a topic of substantial importance for judges, prosecutors, defense attorneys, scholars, and policymakers. What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders. This article concludes by discussing the policy implications of these findings and possible avenues for future research.
Ball on the disconnect between violent crime and California counties' incarceration rates
W. David Ball (Santa Clara School of Law) has posted Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should on SSRN. Here is the abstract:
California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.
But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is due in large part to county decisions about how to deal with crime. Using data from 2000-2009, I will show that California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates.
The contribution the Article makes, then, is twofold. First, it reinforces that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime. Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison. Second, the Article demonstrates why localities are crucial - and critically underexamined - contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies. State officials must take these local differences into account, and create incentives for counties to behave differently.
The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration. I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime. This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones.
This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.
July 11, 2011
Vazquez on Latinos, Immigration Law, and the Criminal Justice System
Yolanda Vazquez (University of Pennsylvania Law School) has posted Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of Immigration Law into the Criminal Justice System (Howard Law Journal, Vol. 54, No. 3, 2011) on SSRN. Here is the abstract:
Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.
Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to the detriment of the Latino community. This poisonous social construct has many manifestations – it depicts the Latino as a foreigner, a criminal, an “illegal” and it characterizes the Latino as one who comes to this country to cause social chaos by refusing to follow our country’s laws, work with authority, or enter with right. These depictions and characterizations instill fear and contempt against the Latino and motivate the creation of harsh immigration laws and enforcement measures. Ironically, these depictions and characterizations are then used as the pretext for legal actions against the Latino community. Currently, the primary vehicle for accomplishing this disguised discrimination has been the incorporation of immigration law into the criminal justice system.
Under the pretext of addressing criminal activity and national security concerns, American law-makers and society use immigration and criminal law to preserve racial inequality and perpetuate the marginalization of Latinos living in the United States. Thus far, these measures have been effective in depriving Latinos of the right to live in this country with rights equal to the majority, and denying them the freedom and privilege of living in the United States without abuse, discrimination, or fear.
This Article will discuss the use of the criminal justice system as the current primary means to stigmatize, punish and remove Latinos, the fallacy of the justifications put forth for this discrimination, and the impact of this governmental course of action on the Latino community. This Article concludes that until the Latino identity is disaggregated from the criminal and immigration contexts, discrimination against all Latinos will persist in a state-sanctioned, society approved and formidable form.
In search of the verdict sheet in the Casey Anthony case
I've received a request for this. If anyone has access and can send it to me or direct me to it, I'll post it. You can email me here.
Dervan on Over-Criminalization and White Collar Crime
Lucian E. Dervan (Southern Illinois University School of Law) has posted New Crimes and Punishments: A Case Study Regarding the Impact of Over-Criminalization on White Collar Criminal Cases on SSRN. Here is the abstract:
Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors and increase the number of financial criminals prosecuted each year. While these types of over-criminalization are not the most egregious examples of the phenomenon, they are important to consider because the statutes being affected by these legislative enactments are far from obscure and, in fact, represent some of the most commonly charged offenses in the federal system.
While much has been written about the plethora of negative consequences resulting from over-criminalization generally, it is worth noting that not everyone believes these negative consequences outweigh the potential benefits that might flow from the two types of over-criminalization discussed in this article. First, some might argue that repeatedly increasing the statutory maximums for white collar offenses is justified because doing so means culpable individuals will receive longer prison sentences reflective of their conduct and, in addition, others will be deterred from committing such crimes. Second, some might argue that enacting broad new criminal provisions in areas already criminalized is justified because such enactments provide prosecutors with the tools necessary to ensure that creative and sophisticated white collar criminals are brought to justice in larger numbers, thereby deterring others from committing similar offenses. This article will examine the accuracy of the underlying premises utilized by both of these “justifications” for the over-criminalization discussed herein – (a) the assumption that increasing statutory maximums results in ever lengthening sentences for individual white collar defendants, and (b) the assumption that enacting additional laws that are vague and overlapping in areas already criminalized results in increased levels of enforcement against white collar criminals. Through such an examination, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this means for the over-criminalization debate and, in particular, the over-criminalization “justifications” discussed above.
Commentary on Court's denial of stay of execution of Mexican national
ScotusBlog collects commentary on last week's closely divided decision, including the suggestions that the decision will lead to "even tougher times ahead for American consular and human rights officials trying to convince other states around the world to obey well-established and broadly recognized international law.”