August 6, 2011
Heufer on Crime, Inequality, and the Private Provision of Security
Jan Heufer (University of Dortmund - Ruhr Graduate School in Economics) has posted Crime, Inequality, and the Private Provision of Security on SSRN. Here is the abstract:
In a high - crime environment with many high - income citizens, private security companies which offer protection against crime can flourish. In this article crime is modeled as a game where richer victims yield a higher return on crime, but with decreasing returns to crime as more criminals choose crime to supplement their income. Private security providers off er protection against crime and face Cournot competition. The model allows for the analysis of market clearing prices for effort against crime. Among the implications of the model are that rising inequality will lead to more expenditure on protection against crime, and that the upper income classes are suffering from the same or lower crime density than the middle income class. Taking into account the response of criminals and victims, rising inequality can actually lead to less crime if either (i) the legal income opportunity of the marginal criminal increases or (ii) marginal utility from income decreases and richer individuals spend a higher proportion of their income on protection (i.e. protection is a superior good). Often the middle class suffers from higher crime densities as inequality increases, as the increased spending on protection by the upper class (i) shifts crime to the middle class and (ii) increases market prices for protection, leaving the middle class with less affordable protection against crime. Emigration of the middle class can then further increase inequality. This highlights the importance of taking into account the response of individuals against crime and shows that the link between inequality and crime is a complex one.
August 5, 2011
Sangero & Halpert on Reversing the View of a Confession
Boaz Sangero and Mordechai Halpert (Academic Center of Law and Business and affiliation not provided to SSRN) have posted Proposal to Reverse the View of a Confession: From Key Evidence Requiring Corroboration to Corroboration for Key Evidence (University of Michigan Journal of Law Reform, Vol. 44, p. 511, 2011) on SSRN. Here is the abstract:
Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present Article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction, is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in evaluating the weight of a confession. This illusion in evaluating the weight of a confession occurs when the trier of fact believes that, if there is only a low probability that an innocent person would falsely confess, then there is also only a low probability of innocence in each and every case where a person does confess guilt. The surprising truth is that even if there is only little doubt regarding the credibility of confessions in general, in some cases, this raises considerable doubt regarding the certainty of a conviction. We demonstrate this through the case of George Allen, who was convicted in 1983 of the rape and murder of Mary Bell. This is an example of a case in which the fallacy reaches extreme proportions, since nothing connected the accused to the crime, apart from his confession.
Following this, we turn to a Bayesian calculation of probability for evaluating the weight of a confession. First, we discuss the standard of proof required for a criminal conviction. We show that the optimistic expectation of the U.S. Supreme Court in Kansas v. Marsh regarding the rate of false convictions (0.027%) is inconsistent with Blackstone’s famous approach, accepted by many judges, whereby it is better for ten criminals to be acquitted than for one innocent to be convicted (9.09% wrongful convictions). We then demonstrate the untenability of the optimistic estimate that it is possible to convict with a relatively low probability of guilt (approximately 91%) without paying a very heavy price in wrongful convictions. Considering this, we explain why we prefer the ratio proposed by Thomas Starkie, whereby it is better for a hundred criminals to be acquitted than for one innocent to be convicted. The probabilistic calculation that we perform based on this threshold of 1:100 dictates a new and surprising conclusion that calls for a significant * Prof. Boaz Sangero is Head of the Department of Criminal Law and Criminology at the Academic Center of Law and Business, Israel. ** Dr. Mordechai Halpert is a physicist involved, among other things, in the research and development of voice biometric systems. Furthermore, even if we suffice with Blackstone’s familiar threshold of 1:10, the strength of the other evidence against the suspect, apart from the confession, must still be at least a balance of probabilities (51%) in order to achieve proof of guilt beyond a reasonable doubt, the burden required for a conviction. Given the real danger of convicting innocents, we call on law enforcement officials to refrain from interrogating a person, with the aim of extracting a confession, when there is no well - established suspicion against this person, and even when the law allows for such an interrogation. Moreover, we call on legislatures to amend the law so that such an interrogation would not be possible, and to set forth that a confession is insufficient to constitute the sole, or key, evidence for a conviction, but it can be used only as corroboration for other key evidence - if it exists.
Tuerkheimer on Judging Sex
This Article explores the curious jurisprudence of sexual patterns and how it constructs female sexuality. In modern rape law, the “unchaste character inference” expressly prohibited by the rape shield endures. Though the boundaries that circumscribe appropriate sexual conduct have shifted over time, courts persist in making normative judgments about women’s sexuality. Cloaked in the legitimizing rhetoric of sexual patterns, retrograde notions of deviancy are substituting for rational deliberation on the question of consent. As rape shield law enters its fourth decade, it continues to defy reason, both in application and in theory. The proposed evidentiary approach promises to improve judicial decision making in rape cases, while reorienting the law toward the female sexual subject and the contingency of her consent.
Dolovich on Strategic Segregation in the Modern Prison
Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Strategic Segregation in the Modern Prison (American Criminal Law Review, Vol. 48, No. 1, 2011) on SSRN. Here is the abstract:
For more than three decades, the L.A. County Jail has been systematically separating out the gay men and trans women who come through the Jail and housing them wholly apart from the general population. This is to protect them from sexual victimization, to which they are especially vulnerable. This article draws on original research to provide an in-depth account of this segregation unit, which is known as K6G. The aim is both descriptive and evaluative - to describe the mechanics of the program and its implications for residents, and to assess a variety of objections to it. As the article shows, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable. There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation. Equally troubling, K6G is woefully underinclusive, leaving unprotected many vulnerable people who are neither gay nor trans. This article carefully considers and responds to these objections. It also addresses a third, constitutional objection: that, even should prison administrators in L.A. County or elsewhere wish to follow a K6G model, they would be precluded from doing so on Equal Protection grounds. Two appendices accompany the article: a detailed description of the research methodology and a reproduction of the 176-question instrument used to structure the 32 formal interviews conducted with K6G residents.
August 4, 2011
Rogier on Where Administrative Law and Criminal Law Meet
Lodewijk Rogier (Erasmus University) has posted Measures Providing Safety and Security: Where Administrative Law and Criminal Law Meet on SSRN. Here is the abstract:
Infringements of safety and security are dealt with by administrative as well as by criminal law measures. The protection of safety and security by criminal law is the responsibility of the police and the public prosecutor. measures taken under administrative law are the responsibility of administrative bodies. Criminal law and administrative law need each other more and more, but apparently not always.
Branham on Transforming Prison Cultures
Lynn S. Branham (Saint Louis University - School of Law) has posted 'The Mess We’re In': Five Steps Towards the Transformation of Prison Cultures (Indiana Law Review, Vol. 44, p. 703, 2011) on SSRN. Here is the abstract:
Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending to prisoners and correctional employees alike, to respect human dignity.
This article rests on the proposition that such “culture busting” in prisons is possible and describes five key steps that need to be taken by each state and the federal government to effectuate the envisioned transformation in their prisons. Those steps include: (1) Establish a maximal limit on the per-capita imprisonment rate in the jurisdiction that is at least 50% lower than the current national rate and adopt mechanisms to responsibly implement and enforce the limit; (2) Adopt a comprehensive plan to bring transparency and accountability into the operations of the jurisdiction’s prisons, in part through an independent public entity’s monitoring of, and issuance of public reports on, conditions within those prisons; (3) Modify prison policies, practices, and programs to reflect and inculcate a restorative-justice ethos within the prisons; (4) Ensure that a trained and dedicated mentor is assigned to each prisoner at the outset of his or her incarceration; and (5) Implement procedures to accord prisoners a central role in the development of their individualized reentry plan, whose implementation would commence upon their incarceration.
August 3, 2011
Patton on Guns, Crime Control, and Federal Sentencing
David Patton (University of Alabama School of Law) has posted Guns, Crime Control, and a Systemic Approach to Federal Sentencing (Cardozo Law Review, Vol. 32, 2011) on SSRN. Here is the abstract:
Recent scholarship about the role of sentencing reform in reducing high levels of incarceration has focused on evidence-based, offender-specific solutions, such as how to better assess offenders’ risk of recidivism and their amenability to diversionary programs. This Article proposes a new, systemic approach. In particular, it suggests that in cases where the primary rationale for steep sentences is crime reduction, as opposed to retributive notions of harm and blameworthiness, judges ought to engage in an evidence-based examination of how the government is making “use” of the sentences it seeks in its law enforcement efforts. And where the government’s efforts fall short, so too should the sentences. The proposal would not only result in more rational and just sentences, it also has the potential to enhance public safety.
Although law enforcement and prosecutorial strategy have conventionally been viewed as the exclusive territory of the Executive Branch, this Article contends that judges are in fact appropriate and competent institutional actors to examine them. This Article explores these issues in the context of the federal government’s most formal and direct intervention into the prosecution of street crime, Projects “Triggerlock” and “Safe Neighborhoods,” which, in the name of crime control, have resulted in a ten-fold increase in the number of federal “felon-in-possession” prisoners over the past twenty years.
Villaroman on Graft and Corruption
Noel G. Villaroman (Monash University - Faculty of Law) has posted Laws and Jurisprudence on Graft and Corruption (3rd Edition) (N. Villaroman, LAWS AND JURISPRUDENCE ON GRAFT AND CORRUPTION, 3RD EDITION, Central Book Supply, 2010) on SSRN. Here is the abstract:
This book discusses the major anti-corruption laws in the Philippines today and the two primary institutions created to fight corruption in the country – the Office of the Ombudsman and the Sandiganbayan. It is designed to assist prosecutors, defense lawyers, journalists, public officials and indeed any person interested in Philippine anti-corruption legislation. It aims to help the reader identify the realm of proscribed conduct and determine whether a corruption offense has been committed in a given set of facts. This book presents the texts of the following anti-corruption laws and the relevant Supreme Court decisions explaining their meaning and application.
August 2, 2011
DeAngelo et al. on Experimental Evidence on Reducing Recidivism
Gregory J. DeAngelo , Gary Charness and Beth A. Freeborn (Rensselaer Polytechnic Institute (RPI) - Department of Economics , University of California, Santa Barbara - Department of Economics) have posted Mechanisms for Reducing Criminal Recidivism: Experimental Evidence on SSRN. Here is the abstract:
We conduct laboratory experiments to investigate the effect of deterrence mechanisms on recidivism under controlled conditions. Experimental analysis allows for easier identification of recidivism than the use of empirical or field data. Specifically, we focus on the effect of variation in expected cost of behavior on the rate of recidivism and the number of times an individual re-offends after apprehension. We use a roadway speeding framework and find that the rate of recidivism and number of times an individual re-commits a proscribed act are strongly influenced by the expected penalty.
Morse on Mental Disorder
Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal with at least some people with mental disorder are justified because they substantially lack rational capacity. Treating people with mental disorder specially is a two-edged sword. Failing to do so when it is appropriate is unjust, but the opposite is demeaning, stigmatizing, and paternalistic. The central normative question is when special treatment is justified.
This Article will focus mainly on United States Supreme Court cases to review the current state of the law, with special attention to the contexts in which preventive detention is an issue. It makes no pretense to covering every issue, to providing a complete analysis of these cases, or to comprehensive coverage of all the arguments concerning the issues raised. The Court’s cases are simply a vehicle for organizing the overview. The goal is to explore what I consider the most just approach in each area. In some cases, my preferences are foreclosed by constitutional constraints; in others, the preferred approach could be achieved by statute or by state supreme court decisions.
Howe on California Death Sentences
Scott Howe (Chapman University - School of Law) has posted Can California Save its Death Sentences? Will Californians Save the Expense? on SSRN. Here is the abstract:
Imposing a death sentence in California has become symbolism with a staggering price. From 1973 through 2009, California sentenced 927 persons to death but executed only thirteen. No executions have occurred since 2006. There are presently 714 persons on death row. Average delays between death sentences and executions are among the worst in the nation and in some cases will reach 30 years. One recent study estimated that taxpayers have spent more than $4,000,000,000 on the California death penalty since 1978 and more than $184,000,000 in 2009 alone.
This Article addresses two major questions about the future of California’s death penalty. First, it asks whether California can save its pending death sentences and answers negatively. I conclude that the courts are unlikely in the near future to declare most of the death sentences unconstitutional due to delay. Yet, I also conclude that the state is not able to institute reforms that can soon achieve a large and regular flow of executions, which means that a large portion of the pending sentences will not be carried out.
The Article then asks whether Californians will soon take steps to avoid the expense of trying to save all of the death sentences. I discuss the possibilities and the doubts. Governor Brown has stated that he will not grant blanket commutations. The options for the legislature are also limited, because the state constitution requires voter approval to amend the death-penalty statutes. Because of the growing recognition that the current death-penalty system is not sensible, California may be headed toward a public referendum in which the voters will decide. I present the competing perspectives on the causes of the current malfunction and the solutions that will vie for public acceptance. Putting aside the view that the death penalty is inherently wrong, I conclude that there will be three non-abolitionist accounts plus one that favors abolition. I explain why they are all flawed. Because the California death-penalty system is unavoidably hemmed in by economic, cultural and legal constraints that create difficult trade-offs, voters can only try to find the lesser evil among bad options. I believe that abolition is the lesser evil in California, but the lesser-evil argument is disquieting in that it calls for real sacrifice, and it may not soon win out.
August 1, 2011
Arya et al. on Juvenile Justice
Neelum Arya , Micah A. Haskell-Hoehl , Michael Berrios , Allison Conyers , Jody Kent , Dana Shoenberg , Tara Andrews , Phyllis Lawrence , Jenny Collier and Melissa Rothstein have posted Juvenile Justice (Smart on Crime: Recommendations for the Administration and Congress, p. 90, 2011) on SSRN. Here is the abstract:
Smart on Crime: Recommendations for the Administration and Congress provides the 112th Congress and the Obama administration with analysis of the problems plaguing our state and federal criminal justice systems and a series of recommendations to address these failures. The report examines the entire criminal justice system, from the creation of new criminal laws to ex-offenders’ reentry into communities after serving their sentences. Our comprehensive recommendations range from helping to restore and empower victims to identifying ways to protect the rights of the accused. Due to the undeniable human costs and the overwhelming fiscal costs, Americans from diverse political perspectives -- particularly professionals with experience in all aspects of the criminal justice system -- recognize that the system fails too many, costs too much, and helps too few. Smart on Crime provides the most promising recommendations for resolving our nation’s criminal justice crisis.
Call for papers for Maine symposium on post-conviction review
Paper proposals are due by Sept. 15 with the symposium scheduled for spring 2012. The release follows the jump.
The Maine Law Review, in consultation with the Maine Supreme Judicial Court, is pleased to announce plans for a spring 2012 live symposium on the law of post-conviction review, and an invitation for article proposals to be considered for publication in the spring edition of the Law Review.
The symposium will offer both national and Maine specific perspectives on post-conviction review issues, and will feature a nationally prominent keynote speaker along with other distinguished presenters. Each speaker will submit an article to be published in the spring issue. While the live symposium will feature three or four primary speakers due to time constraints, the book will contain additional articles.
We seek submissions on a broad range of topics relating to post-conviction review, including its appropriate goals and the efficacy of current state and federal procedures in accomplishing those goals. Moreover, convictions carry a myriad of significant collateral consequences such as deportation and deprivation of public assistance benefits. We seek articles that assess whether and how these consequences should inform the optimum scope of post-conviction review, and how they affect the process by which guilty pleas are presented in courts.
The deadline for submissions is September 15, 2011. Submitted abstracts should be no longer than three (3) pages, double-spaced, with standard margins and font size. For additional information, please contact Emma Bond at firstname.lastname@example.org, or by phone at (207) 619-3662.
McAdams on Present Bias and Criminal Law
Although “present bias” (or weakness of will, impulsiveness, myopia, or bounded willpower) was flagged as an issue for legal examination by Tom Ulen and Russell Korobkin over a decade ago, the concept has received insufficient attention in the legal field - and most of that attention has focused on its implications for the regulation of credit and savings. But, as demonstrated by this Article, the inconsistency of time preferences has wider implications, especially for criminal law. First, present bias may have significant implications for the general deterrence of crime. Individuals with time-inconsistent preferences may give in to immediate temptations to offend, even though they will not plan to exploit more distant opportunities to offend. To create additional deterrence by exploiting the present bias, one must either make the deferred costs of crime immediate or make the immediate benefits of crime deferred. For this reason, present bias heightens the importance of timing arrests closer to the commission of a crime - which suggests overlooked benefits from undercover operations. It also increases the efficiency of private crime prevention when these measures pose costs that occur contemporaneously with the benefits of crime. Second, present bias explains addiction, otherwise puzzling conditions of probation and parole, and the self-control mechanisms for dealing with addiction and tempting criminal behavior. Preventative measures, whether imposed by the state as a condition of probation and parole or imposed by the potential offender through “self-exclusion,” work by preventing an individual from having the opportunity to succumb to temptation.
July 31, 2011
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