CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, September 17, 2011

Hamilton-Smith & Vogel on Recidivism and Felony Disenfranchisement

Guy Padraic Hamilton-Smith and Matthew Vogel have posted The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism on SSRN. Here is the abstract:

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article explores the history and philosophy that underlies disenfranchisement along with theoretical mechanisms by which disenfranchisement can be thought to have an impact on recidivism. Second, the legal challenges that have been made against disenfranchisement are discussed with a particular focus on challenges under the Equal Protection Clause of the Fourteenth Amendment as well as the Voting Rights Act. A novel constitutional argument under principles of congruence and proportionality is also examined. Third, this article uses re-arrest data collected by the United States Department of Justice to examine the impact of felony disenfranchisement on recidivism. These results are discussed along with implications for future inquiries.

September 17, 2011 | Permalink | Comments (0)

Friday, September 16, 2011

Moore on Minority Overrepresentation in Criminal Justice Systems

Moore janet Janet Moore (University of Cincinnati College of Law) has posted Minority Overrepresentation in Criminal Justice Systems: Causes, Consequences, and Cures
(Freedom Center Journal, Forthcoming) on SSRN. Here is the abstract:

This piece introduces Prosecution and Racial Justice, a panel discussion with Wayne McKenzie of the Vera Institute for Justice, by outlining the legal-historical context for reform strategies that detect and correct effects of racial bias in prosecutorial decision-making.

September 16, 2011 | Permalink | Comments (0)

Heytens on Legal Change

Heytens toby Toby J. Heytens (University of Virginia School of Law) has posted The Framework(s) of Legal Change on SSRN. Here is the abstract:

The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously underappreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.

September 16, 2011 | Permalink | Comments (0)

Thursday, September 15, 2011

Kerr on Fourth Amendment Remedies

Kerr orin Orin S. Kerr (George Washington University - Law School) has posted Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States (Cato Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:

This essay considers how the Supreme Court's recent limits on remedies for Fourth Amendment violations threatens the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S. Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggest that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

September 15, 2011 | Permalink | Comments (0)

Ryan on Juries in Eighth Amendment Punishments Clause Determinations

Ryan meghan Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations on SSRN. Here is the abstract:

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments. This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court’s recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.

September 15, 2011 | Permalink | Comments (0)

Wednesday, September 14, 2011

Gumby learns that there is no reasonable expectation of privacy in facebook postings

This article from today's San Diego Union-Tribune chronicles the adventures of a local man who walked into a 7-11 in a Gumby costume on Labor Day and claimed to be committing a robbery. The print version reports that the suspect had posted on his facebook page on Aug. 15 a mention of his new Gumby costume and how he had worn it everywhere. And fortunately, the print version suggests in the headline that, as the suspect is claiming he was only playing a prank, Gumby may avoid the Pokey.

September 14, 2011 | Permalink | Comments (0)

Wright on Causation

Wright_Richard Richard W. Wright (Illinois Institute of Technology - Chicago-Kent College of Law) has posted two articles on causation on SSRN. The first is The NESS Account of Natural Causation: A Response to Criticisms (PERSPECTIVES ON CAUSATION, Chapter 14, R. Goldberg, ed., Hart Publishing, 2011). Here is the abstract:

The NESS (necessary element of a sufficient set) account of natural (scientific, ‘actual’, ‘factual’) causation is usually acknowledged to be a more satisfactory and comprehensive account than the traditional sine qua non (‘but for’) account. However, objections have been raised to the claim that the NESS account fully captures the concept of natural causation and properly handles all types of situations. Various types of counter-examples have been proposed. More fundamentally, it is argued that the NESS account is viciously circular, since causal terminology often is used in its elaboration and it relies upon the concept of causal laws.

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September 14, 2011 | Permalink | Comments (0)

Birckhead on Indigency and Delinquency

Birckheadtamarr Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Delinquent by Reason of Indigency (Washington University Journal of Law and Policy, Vol. 38, 2012) on SSRN. Here is the abstract:

This Essay, written for the 12th Annual Access to Equal Justice Colloquium, introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which the United States juvenile justice system determines whether a child is delinquent. It argues that at each stage of the process - from intake through adjudication to disposition and probation - the court gives as much or more weight to the perceived "needs" of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system's emphasis from an evaluation of a child's criminal responsibility to an assessment of a family's social service needs. The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the standard for indigent juveniles while heightening it for affluent youth. The result is that children from low-income homes do not have to be as "guilty" as those from families of means in order to be adjudicated delinquent, thereby widening the net of court intervention for poor children.

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September 14, 2011 | Permalink | Comments (0)

Tuesday, September 13, 2011

Herlin-Karnell on European Criminal Law

Ester Herlin-Karnell (VU University Amsterdam) has posted What Principles Drive (or Should Drive) European Criminal Law? (German Law Journal, Vol. 11, pp. 1115-1130, 2010) on SSRN. Here is the abstract:

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU’s involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.

September 13, 2011 | Permalink | Comments (0)

LaGreca on Habeas for Non-Citizens Detained Abroad

Peter C. LaGreca has posted Natural Rights in a Positive World: Do Habeas Rights Extend to Non-Citizens Detained Abroad? (International Journal of Public Law and Policy, Vol. 1, No. 4, 2012) on SSRN. Here is the abstract:

Academics and practitioners sit worlds apart, despite daily engagement with the same issues. This article seeks to engage both communities in meaningful legal discourse by putting forward as a basis for argument a counter-factual variation of the fact patterns from recently decided United States case law. Illustrated by this hypothetical scenario is an inherently unfair legal arrangement whereby the Executive assumes virtually unlimited power and attempts to deny, entirely, the non-citizen detained abroad any voice. This article argues that the extension of habeas protection to those detained outside the United States will bring equilibrium to the separation of powers so that the global community may begin to cure the continued injustice for those detained by Executive Order.

September 13, 2011 | Permalink | Comments (0)

Monday, September 12, 2011

Mungan on the Economics of Remorse and Apologies

Mungan murat Murat C. Mungan (Florida State University - College of Law) has posted Don't Say You're Sorry Unless You Mean it on SSRN. Here is the abstract:

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature. This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state. In this paper, I develop a formal framework in which one can analyze remorse and apologies. I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible. This will lead victims, upon receiving apologies, to forgive offenders more frequently. Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence. An (arguably negative) effect of pricing apologies is its elimination of insincere apologies. If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

September 12, 2011 | Permalink | Comments (0)

Motomura on State and Local lmmigration Arrests and the Civil-Criminal Line

Motomuri hiroshi Hiroshi Motomura (University of California, Los Angeles, School of Law) has posted The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line (UCLA Law Review, Vol. 58, p. 1819, 2011) on SSRN. Here is the abstract:

This Article starts by analyzing the conventional wisdom, crystallized in the Ninth Circuit’s 1983 decision in Gonzales v. City of Peoria, that state and local law enforcement officers do not require express federal authorization to make arrests for criminal violations of federal immigration law. This view, I explain, is based on overreliance on the line between civil and criminal. Even if a state or local arrest for an immigration crime still leaves federal prosecutors with substantial discretion not to bring criminal charges, it is highly likely that the federal government will force arrestees to leave the United States through the civil removal system, where much less discretion has been exercised. In immigration law, the discretion to arrest has been the discretion that matters. As long as this remains true, state and local arrest authority for immigration crimes reflects assumptions that have the potential to supersede much federal control over immigration enforcement. This consequence of state and local arrests assumes great practical importance when the lessons from Gonzales are applied to federal programs – such as § 287(g) agreements and Secure Communities – in which state and local nonimmigration arrests expose noncitizens to federal immigration enforcement. Though federal decisionmakers may exercise greater and more regularized discretion in response to a larger state and local role, such federal discretion will be fundamentally reactive. Any federal policy that allows state and local governments to be gatekeepers – to permit state and local priorities to decide which noncitizens will be exposed to federal immigration enforcement – risks abdication of federal authority over immigration.

September 12, 2011 | Permalink | Comments (0)

Sunday, September 11, 2011

Top-Ten Recent SSRN Downloads

Ssrn logo in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 459 Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes
Thomas H. Cohen,
U.S. Bureau of Justice Statistics,
Date posted to database: July 1, 2011
2 333 Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should
W. David Ball,
Santa Clara School of Law,
Date posted to database: June 28, 2011
3 245 Re-Thinking Illegal Entry and Re-Entry
Doug Keller,
Georgetown University Law Center ,
Date posted to database: July 14, 2011
4 186 The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011
5 176 Mass Exoneration Data and the Causes of Wrongful Convictions
Russell D. Covey,
Georgia State University College of Law,
Date posted to database: July 8, 2011
6 163 Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011
7 147 Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice'
John Mikhail,
Georgetown University - Law Center,
Date posted to database: July 21, 2011
8 146 Mental Disorder and Criminal Law
Stephen Morse,
University of Pennsylvania Law School,
Date posted to database: July 24, 2011
9 137 Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: August 15, 2011 [10th last week]
10 136 Last Chance on Death Row
William Baude,
Stanford University - Law School,
Date posted to database: July 11, 2011 [9th last week]

September 11, 2011 | Permalink | Comments (0)

Giannelli on Junk Science and the Willingham Execution

Giannelli_paul Paul C. Giannelli (Case Western Reserve University - School of Law) has posted The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death on SSRN. Here is the abstract:

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the Texas Forensic Science Commission into the arson evidence presented at Willingham’s trial.

September 11, 2011 | Permalink | Comments (0)