Saturday, July 16, 2011
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.
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.
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.
Friday, July 15, 2011
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.
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.
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.
Thursday, July 14, 2011
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.
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.
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.
Wednesday, July 13, 2011
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.
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.
Tuesday, July 12, 2011
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.
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.
Monday, July 11, 2011
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.
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.
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.”
Sunday, July 10, 2011