July 28, 2012
Hansen on Punishment and Recidivism in Drunk Driving
Traditional economic models of criminal behavior have straightforward predictions: raising the expected cost of crime via apprehension probabilities or punishments decreases crime. I test the effect of harsher punishments on deterring driving under the influence (DUI). In this setting, punishments are determined by strict rules on Blood Alcohol Content (BAC) and previous offenses. Regression discontinuity derived estimates suggest that having a BAC above the DUI threshold reduces recidivism by up to 2 percentage points (17 percent). As receipt of previous DUI violations increases future penalties for drunk driving, this is consistent with Beckerian models of criminal activity. However, enhanced penalties for aggravated DUI also reduce recidivism by an additional percentage point (9 percent), despite the fact that the enhanced punishments only affect the current penalties. This is consistent with models of bounded rationality for offenders, wherein expectations of future punishments are based upon previous punishments experienced.
July 27, 2012
Burke & Green on Community Prosecutors and Professional Discretion
Alafair S. Burke (pictured) and Bruce A. Green (Hofstra University - Maurice A. Deane School of Law and Fordham University School of Law) have posted The Community Prosecutor: Questions of Professional Discretion (Wake Forest Law Review, Vol. 47, No. 285, 2012) on SSRN. Here is the abstract:
This Article examines community prosecuting from an ethics perspective. Our focus is not on prosecutors’ compliance with the disciplinary rules, however. The strategies that have been said to exemplify community prosecuting are almost invariably compliant with disciplinary rules and other aspects of the law governing prosecutors. Rather, we take a broader perspective. Our focus is on how prosecutors exercise discretion in the context of adopting community prosecution strategies. We examine this question from both normative and procedural perspectives. We propose that the addition of community-based defense lawyers could help mitigate concerns about prosecutorial discretion in community justice programs by broadening community participation and helping inform the community about an array of potential solutions and their implications.
Clancy on James Otis and the Fourth Amendment
Thomas K. Clancy (West Virginia University College of Law) has posted The Importance of James Otis (Mississippi Law Journal, Vol. 82, 2012) on SSRN. Here is the abstract:
Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.
July 26, 2012
Duff on Relational Reasons and the Criminal Law
R. A. Duff (University of Minnesota Law School) has posted Relational Reasons and the Criminal Law (Oxford Studies in Philosophy of Law, Vol. 2, 2012) on SSRN. Here is the abstract:
Some reasons for action are relational: I have reason to act in a particular way only in virtue of some relationship in which I stand or some role that I fill. In this paper I discuss some questions that relational reasons raise in the particular context of criminal law; this will also involve discussion of the nature of the authority that the criminal law asserts over those whom it purports to bind. I defend three claims: (a) that the normative reasons we have for obeying the criminal law are normally relational and civic; (b) that we do not typically have such reasons, or any reasons, for obeying the substantive criminal law; and (c) that the criminal law’s authority does not consist in a power to make conduct wrong, but lies primarily in its procedural dimension — the authority to call citizens to public account, to judge, to punish. That authority, and the reasons for action that flow from it, are essentially relational. In arguing for these claims, I argue against some prevalent assumptions about the nature of criminal law (that it consists in prohibitions that we are expected to obey); about the grounds of retributive punishment (that it is grounded in an impersonal demand of justice that the guilty suffer for their crimes); and about the significance of the criminal process and the criminal trial (that their purposes are essentially instrumental, to identify those who are to be punished).
Anwar & Fang on Testing for Racial Prejudice in Parole Release
Shamena Anwar and Hanming Fang (Carnegie Mellon University - H. John Heinz III School of Public Policy and Management and University of Pennsylvania - Department of Economics) have posted Testing for Racial Prejudice in the Parole Board Release Process: Theory and Evidence on SSRN. Here is the abstract:
We develop a model of a Parole Board contemplating whether to grant parole release to a prisoner who has finished serving their minimum sentence. The model implies a simple outcome test for racial prejudice robust to the inframarginality problem. Our test involves running simple regressions of whether a prisoner recidivates on the exposure time to the risk of recidivism and its square, using only the sample of prisoners who are granted parole release strictly between their minimum and maximum sentences and separately by race. If the coefficient estimates on the exposure time term differ by race, then there is evidence of racial prejudice against the racial group with the smaller coefficient estimate. We implement our test for prejudice using data from Pennsylvania from January 1996 to December 31, 2001. Although we find racial differences in time served, we find no evidence for racial prejudice on the part of the Parole Board based on our outcome test.
Spapens on Decriminalization of Gambling and Cannabis in the Netherlands
Toine Spapens (Tilburg University) has posted Decriminalization as Regulation: The Gambling and Cannabis Markets in the Netherlands on SSRN. Here is the abstract:
Decriminalizing an illegal market may be a useful strategy for reducing crime. It is also necessary, however, to have a clear understanding of the nature of the illegal market before undertaking such an endeavor. Experiences in the Netherlands show that decriminalizing illegal markets may indeed result in a substantial reduction of organized crime and other criminal activities, if the regulatory system is designed adequately. These experiences also show that such systems inherently lack flexibility and that criminals are usually quick to re-enter the market when unforeseen developments, particularly technical innovations and internationalization, create new illegal business opportunities.
July 25, 2012
Simon on Problems with Criminal Trials
Dan Simon (USC Gould School of Law, USC Department of Psychology) has posted More Problems with Criminal Trials: The Limited Effectiveness of Legal Mechanisms (Law & Contemporary Problems, Vol. 75, pp. 167, 2012) on SSRN. Here is the abstract:
This article follows in the heels of an article entitled The Limited Diagnosticity of Criminal Trials. That article applied a body of experimental psychological research to examine how well juries and judges perform the diagnostic function of distinguishing between factual guilt and innocence. It concluded that fact finders encounter numerous difficulties in drawing correct inferences from the evidence presented at trial.
This article examines a number of mechanisms that are said to promote the accuracy of the fact finding task: cross-examination, jury instructions, jurors’ assurances of impartiality, the prosecution’s heightened burdens of proof, jury deliberation, and judicial review by appellate or post-conviction courts. This examination concludes that to a limited extent, these mechanisms do indeed enhance diagnosticity, but they often turn out to be ineffective, and even detrimental to the process. It follows that the truth evincing potential of criminal trials is not as strong as generally believed.
"New Orleans Police, Mired in Scandal, Accept Plan for Overhaul"
From the New York Times:
NEW ORLEANS — The New Orleans Police Department and the United States Department of Justice announced a far-reaching agreement on Tuesday to overhaul the city’s scandal-ridden police force and improve safety in a city that has had little of it.
. . .
The 122-page agreement, known as a consent decree, states that “the ability of a police department to protect the community it serves is only as strong as the relationship it has with that community.” It calls for hundreds of new department policies governing the use of force, searches and seizures, arrests, interrogations, photographic lineups and more.
Suit against Sheriff Arpaio and the Maricopa County Sheriff's Office
The trial of a plaintiff's class-action suit against Sheriff Arpaio and the Maricopa County Sheriff's Office is making front page news. If you're like me, you've asked: How did plaintiffs get past Lyons, O'Shea and Rizzo? Answers are in the district court's order denying defendant's summary judgment motion and granting certifying the class. Heart of the matter: the district court holds that the plaintiffs allege facts that indeed put them at risk of repeated arbitrary stops based on skin color. The opinion is here. If the court's ruling establishes a racial-profiling exception to Lyons, it could be momentous.
July 24, 2012
Annitto on the Lack of Appellate Review in Juvenile Cases
Few situations, if any, in our justice system grant one judge authority without review over matters concerning personal liberty. Close inspection of the juvenile justice system reveals, however, that, in reality, the outcomes of nearly all juvenile delinquency cases are determined by one individual alone, sometimes in the absence of counsel, and usually entirely outside of public view. While there is widespread recognition that appellate practice on behalf of juveniles is lacking, there is little quantitative data available to define the scope of the problem. Aside from ensuring accuracy, the lack of appeals hampers the ability of appellate courts to define the contours of criminal law and procedure in its application to juveniles, one of its core appellate functions. The dearth of appellate practice also intersects with the struggles of the juvenile justice system to overcome disparate results for minority children, including confinement. This article provides original empirical data identifying the rate of appeals in fifteen states. The data from the study grounds the discussion about juvenile appeals and informs efforts toward improvements. The article also examines the ways in which this limited appellate practice restricts law development by analyzing appellate case law in juvenile justice over the past ten years.
Public recognition of the institutional role of appellate courts has increased, due in part to cases and studies examining post-conviction determinations of actual innocence — including innocent children. Those findings have resonated with the public and raised important policy and structural questions about the justice system. This renewed attention creates an opportunity to improve and highlight the role of the appellate function in the juvenile justice system as well. Appellate courts in the criminal justice system protect against error and define the rights of the accused, increasing accuracy, public accountability, and transparency. The article examines the repercussions in an area of law where the appellate role and transparency to the public is overwhelmingly absent and calls for states to take a more active role in effectively realizing the right to appeal among juveniles.
"Philadelphia Church Official Sentenced to at Least 3 Years in Prison"
From the New York Times:
PHILADELPHIA — Msgr. William J. Lynn, the first Roman Catholic Church official in the United States to be convicted of covering up sexual abuses by priests under his supervision, was sentenced Tuesday to three to six years in prison.
. . .
Monsignor Lynn, 61, was found guilty on June 22 of child endangerment after a three-month trial that revealed efforts over decades by the Philadelphia archdiocese to play down accusations of child sexual abuse and avoid scandal. He was acquitted of conspiracy and a second child endangerment charge.
Monsignor Lynn served as secretary for clergy for the 1.5 million-member archdiocese from 1992 to 2004, recommending priest assignments and investigating abuse complaints. During the trial, prosecutors presented evidence that he had shielded predatory priests, sometimes transferring them to unwary parishes, and lied to the public to avoid bad publicity and lawsuits.
Crowne on Jay-Z's 99 Problems from a Canadian Perspective
Emir Crowne (University of Windsor - Faculty of Law) has posted Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason on SSRN. Here is the abstract:
This paper is a response to Professor Mason’s novel article, "Jay-Z's '99 Problems,' Verse 2: A Close Reading With Fourth Amendment Guidance for Cops and Perps," published in the St. Louis University Law Journal. In that article he engagingly dissects Jay-Z’s song “99 Problems” from an American criminal law perspective. In this article, I offer the Canadian response.
July 23, 2012
Slobogin on Statutory Implementation of Fourth Amendment Mosaic Theory
Christopher Slobogin (Vanderbilt Law School) has posted Making the Most of Jones v. United States in a Surveillance Society: A Statutory Implementation of Mosaic Theory (Duke Journal of Constitutional Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:
In the Supreme Court’s recent decision in Jones v. United States a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion — sometimes called “mosaic theory” — could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements — the issue raised in Jones — but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This solicited article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.
Baldus et al. on Peremptory Challenges and the Miller-El Line of Cases
David C. Baldus , Catherine M. Grosso , Robert Dunham , George G. Woodworth and Richard Newell (University of Iowa - College of Law , Michigan State University - College of Law , affiliation not provided to SSRN , University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise of the Miller-El Line of Cases as Reflected in the Experience of One Philadelphia Capital Case (Iowa Law Review, Vol. 97, 1425) on SSRN. Here is the abstract:
The jurisprudence that has developed in the last twenty-five years under Batson v. Kentucky may be fairly described as indeterminate, unprincipled, and generally ineffective. Scholarly literature points to a variety of reasons for this state of affairs. This Article focuses on one source of the problem — the lack of clarity in the law concerning the evidentiary framework (methodology) needed for a reliable analysis of statistical evidence in Batson cases. United States Supreme Court decisions beginning with Miller-El v. Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v. California (2005), and Snyder v. Louisiana (2008) clarified a number of issues related to the use of statistical evidence and laid the foundation for the development of a more rigorous and principled methodology for use in Batson cases. In that regard, this line of cases may be usefully compared to the Supreme Court’s Title VII decisions in the 1970s, which laid the foundation for the development of an exhaustive body of evidentiary and methodological law that informs the use of statistical evidence in employment cases.
In this Article, we first consider the issues, rulings, and likely impact of the Miller-El line of cases. We then discuss research developed in connection with a recent capital case with complicated Batson issues to both illustrate and build on that foundation in an effort to provide useful guidance for future policymakers and litigants.
In the next part, Part II, we provide background information on Batson and the evidentiary issues this paper seeks to address. Part III then introduces the Supreme Court cases that form the centerpiece of our analysis and considers, again, the contribution these cases make to the appropriate use of statistical analysis in Batson claims. This part presents a preliminary evaluation of how some courts have applied the Supreme Court’s guidance in these areas. Part IV focuses on the case of Commonwealth v. Harold Wilson, a capital case from Pennsylvania in which the defendant successfully litigated a complex Batson claim using statistical evidence. The evidence presented in this case can serve as a model of how to present statistical evidence of discrimination in jury selection. The conclusion appears in Part V.
Frakt on Mandatory Sentences under the UCMJ
David Jason Rankin Frakt (University of Pittsburgh School of Law) has posted When Mandatory Isn’t Required: Mandatory Sentences under the UCMJ on SSRN. Here is the abstract:
Unlike the federal guidelines system, and many state sentencing regimes, the Uniform Code of Military Justice (UCMJ) typically vests unfettered discretion with the sentencing authority, limited only by the statutorily authorized maximum for the offenses of which the accused is convicted. Indeed, “no punishment” is an authorized punishment for virtually every offense under the UCMJ, and the members are advised of this option in the standard jury instructions. There are two exceptions to this general rule of broad sentencing discretion. The UCMJ prescribes a mandatory sentence for one crime, and a mandatory minimum sentence for two other offenses. Specifically, the UCMJ imposes a mandatory death penalty for a conviction of Article 106, Spies, and a mandatory minimum of a life sentence with the possibility of parole for a violation of Article 118, subsection (1) premeditated murder, or subsection (4) felony murder. In this article, I explore how these “mandatory” sentencing terms operate in practice, and consider the various pathways around the statutorily mandated sentences.
July 22, 2012
Top-Ten Recent SSRN Downloads
|1||659||Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right
Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,
University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,
Date posted to database: April 30, 2012
|2||355||The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem
Lucian E. Dervan, Vanessa Edkins,
Southern Illinois University School of Law, Florida Institute of Technology,
Date posted to database: May 31, 2012
|3||282||Predictive Policing: The Future of Reasonable Suspicion
Andrew Guthrie Ferguson,
UDC David A. Clarke School of Law,
Date posted to database: May 2, 2012
|4||259||Human Trafficking and Regulating Prostitution
Samuel Lee, Petra Persson,
New York University (NYU) - Leonard N. Stern School of Business, Columbia University,
Date posted to database: May 14, 2012 [5th last week]
|5||225||Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: June 7, 2012 [6th last week]
|6||221||Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community
Steven H. Resnicoff,
DePaul University College of Law,
Date posted to database: June 2, 2012 [4th last week]
|7||204||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012
|8||167||The Unexonerated: Factually Innocent Defendants Who Plead Guilty
John H. Blume, Rebecca K. Helm,
Cornell Law School, Unaffiliated Authors -affiliation not provided to SSRN,
Date posted to database: July 11, 2012 [new to top ten]
|9||162||The Oral Hearing in Competition Proceedings Before the European Commission
Wouter P. J. Wils, Wouter P. J. Wils,
European Commission, University of London - School of Law,
Date posted to database: May 3, 2012 [8th last week]
|10||145||The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion
Robert J. Smith, Robert J. Smith, Justin D. Levinson,
DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,
Date posted to database: April 25, 2012 [9th last week]