CrimProf Blog

Baradaran on Race, Prediction & Discretion

Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Race, Prediction & Discretion (George Washington Law Review, Forthcoming) on SSRN.  Here is the abstract: 

Many scholars and political leaders denounce racism as the cause of disproportionate incarceration of black Americans. All players in this system have been blamed including the legislators who enact laws that disproportionately harm blacks, police who unevenly arrest blacks, prosecutors who overcharge blacks, and judges that fail to release and oversentence black Americans. Some scholars have blamed the police and judges who make arrest and release decisions based on predictions of whether defendants will commit future crimes. They claim that prediction leads to minorities being treated unfairly. Others complain that racism results from misused discretion. This article explores where racial bias enters the criminal justice system through an empirical analysis that considers the impact of discretion and prediction.

 

With a close look at the numbers and consideration of factors ignored by others, this article confirms some conventional wisdom but also makes several surprising findings. This article confirms what many commentators have suspected — that police arrest black defendants more often for drug crimes than white defendants. It also finds, contrary to popular belief, that there is little evidence to support the belief that drugs are linked to violent crime. Also, judges actually detain white defendants more than similarly-situated black defendants for all types of crimes. The important and surprising findings in this article challenge long-held conventions of race and help mitigate racial disparity in criminal justice.

Sales on Regulating Cybersecurity

Nathan Alexander Sales (George Mason University School of Law) has posted Regulating Cybersecurity (Northwestern University Law Review, Forthcoming) on SSRN.  Here is the abstract: 

The conventional wisdom is that this country’s privately owned critical infrastructure – banks, telecommunications networks, the power grid, and so on – is vulnerable to catastrophic cyberattacks. The existing academic literature does not adequately grapple with this problem, however, because it conceives of cybersecurity in unduly narrow terms: Most scholars understand cyberattacks as a problem of either the criminal law or the law of armed conflict. Cybersecurity scholarship need not run in such established channels. This article argues that, rather than thinking of private companies merely as potential victims of cyber crimes or as possible targets in cyber conflicts, we should think of them in administrative law terms. Firms that operate critical infrastructure tend to underinvest in cyberdefense because of problems associated with negative externalities, positive externalities, free riding, and public goods – the same sorts of challenges the modern administrative state faces in fields like environmental law, antitrust law, products liability law, and public health law.

 These disciplines do not just yield a richer analytical framework for thinking about cybersecurity; they also expand the range of possible responses. Understanding the problem in regulatory terms allows us to adapt various regulatory solutions for the cybersecurity context, such as monitoring and surveillance to detect malicious code, hardening vulnerable targets, and building resilient and recoverable systems. In short, an entirely new conceptual approach to cybersecurity is needed.

Next week's criminal law/procedure oral argument

Issue summary is from ScotusBlog, which links to papers:

Wednesday

• Arizona v. U.S.: Whether federal immigration laws preclude Arizona's efforts at cooperative law enforcement and impliedly preempt four provisions of S.B. 1070 on their face. (Kagan, J., recused.)

Blank on Collateral Compliance

Joshua D. Blank (New York University School of Law) has posted Collateral Compliance on SSRN.  Here is the abstract: 

As most taxpayers are aware, the failure to comply with the tax law can lead to civil and criminal tax penalties. But tax noncompliance can result in other consequences as well, at both the federal and state levels. Collateral sanctions for tax noncompliance, which are imposed by government agencies other than the taxing authority, range from denial of hunting licenses, to revocation of drivers’ or professional licenses, to, as in the recent Supreme Court case Kawashima v. Holder, deportation of taxpayers from the United States. While criminal law scholars have written dozens of articles on the collateral consequences of criminal convictions, tax scholars and government officials have virtually ignored collateral tax sanctions, even though their use by the federal and state governments is growing. 

This Article offers the first comprehensive analysis of collateral consequences in the taxation context. In contrast to the overwhelmingly negative portrayal of collateral consequences in the criminal law literature, this Article shows that collateral tax sanctions may offer previously unappreciated social benefits. Collateral tax sanctions can promote voluntary tax compliance more effectively than formal tax penalties alone, especially if governments increase public awareness of collateral tax sanctions. Governments should therefore embrace collateral tax sanctions as a means of enforcement, and taxing authorities should affirmatively publicize these sanctions.

 

After considering the effects of collateral tax sanctions under each of the predominant theories of voluntary compliance, I propose principles that governments should consider when designing collateral tax sanctions. These principles suggest that recent state initiatives to revoke recreational and professional licenses from tax delinquent individuals will likely promote voluntary compliance. However, whether the Supreme Court’s decision in Kawashima, in which the majority voted to uphold the deportation of two lawful permanent residents who filed false tax returns, will have a positive effect on voluntary compliance is far less certain. I conclude by suggesting additional tax offenses that could be subject to collateral tax sanctions and additional benefits that governments could revoke, or limit, to foster voluntary compliance.

Kerr on Jones and the Mosaic Theory of the Fourth Amendment

Orin S. Kerr (George Washington University - Law School) has posted The Mosaic Theory of the Fourth Amendment (Michigan Law Review, Forthcoming) on SSRN.  Here is the abstract: 

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. 

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

Montiel on a Criminal Threat Exception to the Psychotherapist-Patient Privilege

Joi T. Montiel (Faulkner University, Jones School of Law) has posted The Psychotherapist-Patient Privilege as an 'Occasional Instrument of Injustice': An Argument for a Criminal Threat Exception on SSRN. Here is the abstract:

The Supreme Court in Jaffee v. Redmond announced a federal testimonial privilege protecting communications between a psychotherapist and his patient in federal court. However, in footnote 19 of the opinion, the Court noted that there may be times where the privilege must “give way,” such as when “disclosure” of the statements made in therapy is necessary to protect an intended victim of the patient.

Nonetheless, commentators have argued against an exception to the privilege when the statements made to the therapist indicate that a target is in danger, and some courts have rejected such a “dangerous patient exception” to the psychotherapist-patient privilege. This Article takes an opposing view and argues for an exception to be applied in limited circumstances that is narrower than the dangerous patient exception – a “criminal threat exception.”

This Article will demonstrate that, where courts refuse to acknowledge an exception to the psychotherapist-patient privilege where the patient’s threatening statement is in itself a crime, the federal courts are rendered “occasional instruments of injustice,” as Justice Scalia warned in his dissent in Jaffee.

Moreover, the rationale behind Jaffe’s creation of the psychotherapist-patient privilege – that society’s interest in the mental health of the citizenry outweighs society’s interest in the search for the truth in court – does not hold true where the statement that a patient makes to his therapist is in itself a crime, specifically a threat against a federal official. Congress has criminalized threats against public officials for several reasons: not only to protect the target from the threat being carried out, but also to protect the official from the fear of the violence and from the disruption that that fear engenders. That fear and disruption inhibits the free and fair functioning of government. Thus, in the case of a threat against a public official, the public’s need for the evidence is elevated; The need for a criminal threat exception exceeds the costs. Therefore, a narrow exception to the psychotherapist-patient privilege should be acknowledged under those circumstances.

Janus, Alexander & Graf on Preventive Detention

Eric S. Janus , Shawn Alexander and Leah Graf (William Mitchell College of Law , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted M. v. Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention on SSRN. Here is the abstract:

For the past two decades American courts have grappled with the constitutionality of a new generation of civil commitment laws that have dramatically expanded the use of preventive detention. Similar laws and resulting challenges have arisen in Europe, and a recent opinion by the European Court of Human Rights signals a new development in European law governing the scope of preventive detention — a new development that both mirrors and contradicts early developments in United States civil commitment jurisprudence.

To provide context for American readers, this article first looks briefly at the legal landscape for preventive detention in the United States and then examines the European Court’s decision in M. v. Germany. The article continues with a comparative analysis of the American and European decisions, noting similar problems and contrasting divergent approaches as both Europe and the United States struggle to establish appropriate boundaries for the implementation of preventive detention and concludes with a brief a discussion of the recent developments in Germany since the European Court of Human Rights decided M. v. Germany.

Morse on Severe Environmental Deprivation

Stephen Morse (University of Pennsylvania Law School) has posted Severe Environmental Deprivation (aka RSB): A Tragedy, Not a Defense (Alabama Civil Rights & Civil Liberties Law Review, Vol. 2, p. 147, 2011) on SSRN. Here is the abstract:

This article is a contribution to a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review devoted to whether severe environmental deprivation, sometimes termed rotten social background, should be a defense to crime and why it has not been adopted. I begin by presenting the framework I apply for thinking about such problems. I then identify the main theses Professors Richard Delgado and Andrew Taslitz present and consider their merits. Next, I turn to the arguments of the other papers by Professors Paul Robinson, Erik Luna and Angela Harris. I make two general arguments: first, that SED or any other potentially powerful predisposing cause of crime should not per se be a defense to crime that excuses or mitigates criminal responsibility; and second, that criminal law defenses to responsibility are crucial to the just adjudication of guilt and innocence, but they are not an appropriate means to remedy undoubted social, biological, and psychological problems. I conclude that no jurisdiction has adopted the defense because it is conceptually unjustifiable and empirically unworkable. SED is a tragedy, but it should not be a defense to crime. Finally, I conclude with a number of criminal justice reform suggestions, including many that I believe the other writers would endorse.

Funk & Berman on Attorney Competence in Forensics

Christine Funk and Evan Berman have posted Rising to the Challenge of the NAS Report 'Strengthening Forensic Science in the United States: A Path Forward': A Call for Demonstrated Competence Amongst Legal Practitioners (William Mitchell Law Review, Vol. 37, No. 2, p. 683, 2011) on SSRN. Here is the abstract:

The 2009 report issued by the National Academy of Science, "Strengthening Forensic Science in the United States: A Path Forward," highlighted many of the shortcomings of forensic science as it is currently being presented in criminal and civil courts across the country. To a lesser extent, the report addressed the shortcomings of prosecutors, defense attorneys and judges, who receive, interpret, (or attempt to interpret) and utilize forensic science.

With the current system "inadequate to the task of curing the documented ills of the forensic science disciplines" (NAS Report "Strengthening Forensic Science in the United States: A Path Forward" (2009) at 85), the system needs to change. This article offers a review of the changing legal landscape and calls for raising the competence bar for practitioners in the criminal justice system through imposing minimum standards for legal practitioners who handle forensic science in court.

Lapp & Radice on Pre-Conviction DNA Extraction

Kevin Lapp and Joy Radice (New York University School of Law and New York University (NYU) - School of Law) have posted A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees
(North Carolina Law Review Addendum, Vol. 90, p. 157, 2012) on SSRN. Here is the abstract:

Federal law mandates the collection of a biological sample from anyone arrested by federal authorities or facing federal charges, regardless of the charge. The FBI then creates a DNA profile from the sample and enters that profile into the Combined DNA Index System (“CODIS”), a national database through which law enforcement matches individuals and crime scene DNA evidence.

Part I of the essay briefly reviews the federal statute that authorizes pre-conviction DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality of collecting DNA samples from individuals before they have been convicted of a crime. Part III then argues for a recalibration of the weight that courts currently place on the privacy interest in, and the government’s need for, DNA samples from individuals who are presumed innocent.

Our analysis suggests that the proper assessment of the totality of the circumstances would reduce the weight accorded to the government need for a DNA sample in the period between arrest and conviction and increase the weight of the privacy interest in one’s DNA. This recalibrated balancing would likely produce different outcomes for pre-conviction DNA collection than those issued so far. At the least, pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause. This would assure the legitimacy of the governmental interest in the individual and protect against abuse. To further protect the privacy interests of those subject to mandatory DNA extraction, provisions must be made for the destruction of the DNA sample (and the extensive genetic coding contained within it) after analysis is complete.

The essay concludes by identifying four issues yet to be addressed regarding pre-conviction DNA extraction. The holdings of the current cases leave open questions about whether the federal government’s interest in pre-conviction DNA extraction can trump the Fourth Amendment in the absence of a judicial or grand jury finding of probable cause, or when the arrestee is not detained or is charged with only a misdemeanor. Such cases quickly strain the current rationales and cast serious doubt on the constitutionality of the broadly worded statute.

Priester on US v Jones

Benjamin J. Priester (Florida Coastal School of Law) has posted Five Answers and Three Questions after United States v. Jones (2012), the Fourth Amendment “GPS Case” on SSRN. Here is the abstract:

One of the United States Supreme Court’s “high profile” cases this Term was “the GPS case,” United States v. Jones, which gained attention beyond legal circles to a wide variety of mainstream and popular media sources, both in print and online. When the decision was announced in January 2012, though, nearly everyone was left underwhelmed by the Court’s resolution of the case, at least compared to the anticipation beforehand. In one respect, at least, the Court was unanimous and clear: the defendant’s argument prevailed, and the Court ruled that the Fourth Amendment applied to what the police had done on the facts of the case. Other than that, however, the Court did not provide very much guidance about the Fourth Amendment implications of GPS surveillance of criminal suspects – or, more broadly, the authority of the government in general to maintain surveillance of the public movements of people in everyday life. The lack of clarity was made particularly acute because the underlying reasoning beneath the three opinions reveals a Court seemingly intent on avoiding the complex and difficult issues of Fourth Amendment rights in a digital, internet-interconnected age and putting off the tough judgment calls for another case another day. As is often true of the Court’s decisions, though, the reality is more nuanced than initial appearances might seem to indicate. While the opinions in Jones leave open several significant questions for resolution in future cases, they actually do provide answers to a number of subsidiary questions. Until those cases come before the Court, it is important not to lose sight of the answers the Court did provide in Jones, both for resolving cases in the lower courts in the meantime and for considering how the justices might approach those later cases when the day arrives. Consequently, it is worth taking the time to carefully consider not only the questions the Jones decision leaves open, but also the ones it answers. The narrowness of Jones may seem to make it an insignificant way station on the road to more definitive rulings – but it turns out there may be more to Jones after all.

Appleman on Pretrial Detention, Punishment, and the Sixth Amendment

Laura I. Appleman (Willamette University College of Law) has posted Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment on SSRN. Here is the abstract:

In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.

This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.

Slobogin on Stuntz on American Criminal Justice

Christopher Slobogin (Vanderbilt Law School) has posted American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz
(Criminal Justice Ethics, 2012) on SSRN. Here is the abstract:

William Stuntz, who recently passed away, was the most influential criminal procedure scholar of his generation. Thus it is no surprise that his last book, The Collapse of American Criminal Justice, contains a number of provocative insights about modern American policing and criminal adjudication. But the book also delves into substantive criminal law, criminology, political economy, and nineteenth- and twentieth-century cultural history, and weaves all of it together in a bracingly original way. As a result, The Collapse of American Criminal Justice is a far-ranging analysis of the flaws in American criminal justice, how they developed, and how they can be remedied. It is a tour de force that only someone who has easy familiarity with a wide array of disciplines could pull off.

Baer on Choosing Punishment

Miriam H. Baer (Brooklyn Law School) has posted Choosing Punishment (Boston University Law Review, Vol. 92, No. 2, 2012) on SSRN. Here is the abstract:

This Article sets forth two propositions. First, at a policy-making level, it is easier to punish than it is to regulate. That is, it is easier to attract public and political support for state-sponsored punishment than it is to attract similar support for regulation. “Punishment,” as defined in this Article, includes any retributively motivated government action or response.

Second, this preference for punishment may not be particularly healthy. No doubt, there are many good reasons for supporting the government when it imposes just deserts or communicates the public’s moral condemnation. Moreover, it is likely impossible to eradicate retributive motivations that are hard-wired into our collective DNA. But the resources we spend on punishment are resources that might be spent elsewhere. Even worse, by overemphasizing punishment, we may undermine and crowd out the non-punitive, regulatory alternatives that are more adept at averting disastrous outcomes in the first place. Accordingly, we should worry about punishment’s effect on all government institutions, and not just on the criminal justice system.

This Article begins that task by focusing on corporate governance regulation and policy. The Article opens by explaining why public actors choose retributive responses and theorizes how those responses are likely to affect the legal institutions that dominate corporate governance law. The Article then tackles the normative point. Although punishment offers a number of benefits, it may leave society worse off over the long term. The Article concludes with suggestions for further inquiry.

Argument on when cases covered by Fair Sentencing Act of 2010

The transcript in Dorsey v. United States is here.

Sklansky on Evidentiary Instructions and the Jury as Other

David Alan Sklansky (University of California, Berkeley - School of Law) has posted Evidentiary Instructions and the Jury as Other (Stanford Law Review, Vol. 65, 2012) on SSRN. Here is the abstract:

Limiting instructions and instructions to disregard inadmissible evidence are widely believed to be both ineffective and necessary. Courts presume that juries follow evidentiary instructions, but the presumption is almost universally acknowledged to be false, a kind of professional myth. But we have it backwards. The real myth about evidentiary instructions is not that they work. The real myth is that they don’t work, but that we need to rely on them anyway. Both of these ideas about evidentiary instructions are wrong or at best greatly exaggerated. Evidentiary instructions probably do work, although imperfectly and better under some circumstances than others. Furthermore, evidentiary instructions are not an essential part of jury trial, and the legal presumption that they work flawlessly is even less fundamental.

The conventional wisdom about evidentiary instructions — “of course they don’t work, but we have to pretend that they do” — spares us the messy but important task of assessing when evidentiary instructions are most likely to fail, how they can be made more effective, and what should follow from a recognition that they work, at best, imperfectly. It has made it easier, for example, to tolerate evidentiary instructions that are incoherent or senseless. They seem no worse, or less likely to be effective, than evidentiary instructions in general.

The conventional wisdom about evidentiary instructions is part of a broader way of thinking about lay adjudicators that holds deep appeal but that we would do well to jettison: the idea that juries are something other than groups of human beings called together to sit in judgment, that trial by jury is something other than trial by people, that the jury is not a workaday committee but a kind of intuitive, unmethodical, pre-discursive oracle — the “voice of the community.” Thinking about juries as groups of people — inherently flawed, just as people are inherently flawed, but capable of reason, just as people are capable of reason — would allow us to think more sensibly, and more responsibly, not only about evidentiary instructions but about adjudication more generally.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	1605	Law Deans in Jail Morgan Cloud, George B. Shepherd, Emory University School of Law, Emory University School of Law, Date posted to database: January 25, 2012
2	252	SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice Deborah Tuerkheimer, DePaul University - College of Law, Date posted to database: February 22, 2012 [4th previously]
3	247	The Empirical Turn in International Legal Scholarship Gregory Shaffer, Tom Ginsburg, University of Minnesota - Twin Cities - School of Law, University of Chicago Law School, Date posted to database: February 14, 2012
4	221	Misdemeanors Alexandra Natapoff, Loyola Law School Los Angeles, Date posted to database: February 25, 2012 [6th previously]
5	218	Law and Neuroscience in the United States Owen D. Jones, Francis X. Shen, Vanderbilt University - Law School & Dept. of Biological Sciences, Tulane University Law School & The Murphy Institute, Date posted to database: February 13, 2012 [9th previously]
6	210	Ensuring an Impartial Jury in the Age of Social Media Amy J. St. Eve, Michael A. Zuckerman, U.S. District Court Judge, U.S. District Court, Date posted to database: March 13, 2012 [7th previously]
7	191	The Delaware Death Penalty: An Empirical Study Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells, Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law, Date posted to database: March 11, 2012 [new to top ten]
8	160	Prisons, Privatization, and the Elusive Employee-Contractor Distinction Alexander Volokh, Emory University - School of Law, Date posted to database: February 25, 2012
9	159	Implicit Bias in the Courtroom Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, University of Washington - Graduate Department of Psychology, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: March 21, 2012 [new to top ten]
10	125	From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws Audrey Rogers, Pace University - School of Law, Date posted to database: February 18, 2012 [new to top ten]