CrimProf Blog

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.

Moore on Minority Overrepresentation in Criminal Justice Systems

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.

Heytens on Legal Change

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.

Kerr on Fourth Amendment Remedies

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.

Ryan on Juries in Eighth Amendment Punishments Clause Determinations

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.

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.

Wright on Causation

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.

Many of the objections raised against the NESS account assume that it is essentially the same as Herbert Hart’s and Tony Honoré’s ‘causally relevant factor’ account and John Mackie’s INUS account. In section II of this chapter I distinguish these three accounts, which differ in important ways that make the latter two accounts vulnerable to objections to which the NESS account is immune, and I offer an account of causal laws that I believe rebuts the claim that the NESS account is viciously circular. In section III I argue that the NESS account handles properly the various types of situations that have been raised as alleged counter-examples to its comprehensive validity.

The second is Proving Causation: Probability Versus Belief (PERSPECTIVES ON CAUSATION, Ch. 10, R. Goldberg, ed., Hart Publishing, 2011). Here is the abstract:

One of the frequently assumed major differences between civil law and common law systems is the standard of persuasion applied by each in civil (non-criminal) cases. In most civil law jurisdictions, it is commonly assumed that the standard of persuasion is the same for criminal and civil proceedings. The plaintiff in a civil case, as well as the prosecutor in a criminal case, must provide sufficient proof to convince the trier of fact of the truth of the facts at issue on the particular occasion. Although it is recognised that absolute certainty is impossible to achieve, the required degree of belief is often expressed in terms of a virtual certainty, or at least a very high probability. However, a mere statistical probability, no matter how high, will not suffice in the absence of the required conviction or belief in the truth of the facts at issue.

In common law jurisdictions, there is an explicit distinction between the standard of persuasion in criminal and civil proceedings. In criminal proceedings, the standard is very high: the prosecutor must prove the defendant’s guilt ‘beyond a reasonable doubt’. In civil proceedings, however, the plaintiff generally only needs to prove his case by the much lower standard of a ‘preponderance of the evidence’ (the usual formulation in the United States) or a ‘balance of probability’ (the usual formulation in the British Commonwealth and Scandinavia). Both standards are often interpreted by academics, and sometimes by judges, as merely requiring a 50 per cent probability. For both standards, as so interpreted, it would be better to employ the term ‘standard of proof’ rather than ‘standard of persuasion’, since the latter implies an element of conviction or belief that is lacking when all that is involved is a class-based statistical probability.

I have argued that the supposed major differences between the standards of persuasion in common law and civil law jurisdictions are greatly overstated. I retrace that argument in section II of this paper. I conclude that, in general, the common law as well as the civil law continues to view the applicable standards of persuasion in civil as well as criminal actions as requiring the formation of a belief in the truth of the facts at issue in the particular case, rather than a mere class-based statistical probability, and that concrete ‘particularistic evidence’ specific to the particular case is necessary to support such a belief. Although the available evidence is slim, I also conclude that in the civil law as well as the common law the strength of the required belief is lower in civil actions than in criminal actions.

In section IV of this paper, I consider various types of problematic causal situations that courts around the world have struggled to deal with in recent decades. Clear recognition of the issues in these cases and their proper resolution has often been hindered by an unanalysed assumption that the standard of persuasion in civil actions is a mere statistical probability standard, which however is not consistently applied, since doing so would generate significant problems and paradoxes. The considerable confusion that now exists could and should be greatly reduced simply by replacing the highly misleading phrases ‘more likely than not’ and ‘balance of probability’, and even the less misleading phrase ‘preponderance of the evidence’, with ‘a minimal belief’.

Birckhead on Indigency and Delinquency

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.

The Essay illustrates the variety of ways in which modern juvenile code provisions and delinquency court practice privilege consideration of juveniles' needs over the weight of the evidence against them. It argues that the juvenile court's traditional focus on the needs of destitute youth continues to be reflected in the system's practices and procedures, despite the court's shift in dispositional philosophy from rehabilitation to youth accountability and public safety. It examines the structural and institutional causes of this development, beginning with the most common points of entry into the juvenile court system - public schools, local businesses, and neighborhood police presence. The Essay suggests that the juvenile court's continued emphasis on families' needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class. It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles' parents and raising awareness of needs-based delinquency among police, prosecutors, judges, and agency personnel. It challenges the view that in tight budgetary times, juvenile court involvement is the only way for poor children to access services, and concludes by proposing a service delivery model that cuts across public child welfare boundaries, with the goal of increasing fairness for all youth in the juvenile justice system.

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.

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.

Mungan on the Economics of Remorse and Apologies

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.

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

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.

Top-Ten Recent SSRN Downloads

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]

Giannelli on Junk Science and the Willingham Execution

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.