August 4, 2012
Fernandez, Holman & Pepper on Crime and Living Wage Ordinances
Jose M. Fernandez , Thomas Holman and John V. Pepper (University of Louisville - Department of Economics , affiliation not provided to SSRN and University of Virginia (UVA) - Department of Economics) have posted The Impact of Living Wage Ordinances on Urban Crime on SSRN. Here is the abstract:
We examine the impact of living wages on crime. Past research has found that living wages appear to increase unemployment while providing greater returns to market work. The impact on crime, therefore, is unclear. Using data on annual crime rates for large cities in the United States, we find that living wage ordinances are associated with notable reductions in property related crime and little impact on non-property crimes.
August 3, 2012
Meares, Tyler & Gardener on Lawfulness and Perceived Police Misconduct
Tracey L. Meares (pictured), Tom Tyler and Jacob Gardener (Yale University - Law School, Yale University - Law School and affiliation not provided to SSRN) have posted The Two Different Worlds We Live In: Lawfulness and Perceived Police Misconduct on SSRN. Here is the abstract:
Discussions among legal authorities about the desirability of police policies and practices usually take place within a framework of judgments about lawfulness. The policies of police departments, as well as the actions of police officers are viewed as right or wrong with reference to Constitutional standards, as interpreted by prosecutors, judges and juries. We argue that the public is generally insensitive to the question of whether police officers are acting consistently with constitutional standards and instead and evaluates the appropriateness of police actions primary by assessing whether or not police officers are exercising their authority with reference to “procedural fairness.” Legal authorities and the public live in two separate worlds.
Using the results of a study involving respondents from representative American cities in which each completes a questionnaire and then watches and reacts to three videos of police-citizen interaction we argue that public judgments about whether police officers should be disciplined for misconduct are largely shaped by people’s procedural justice evaluations. The actual lawfulness of police officer conduct has at best a minor influence upon people’s evaluations.
We argue that these findings suggest the need for the police to broaden the framework within which they evaluate a variety of types of policing policy – racial profiling; zero tolerance policing; street stops; Mosque surveillance, etc. – to include an understanding of how these policies and practices impact public views about the appropriateness of police conduct. Further, they point the way toward creating relationships between the police and the public that first enhance cooperative efforts to maintain social order and second build people’s identification with and commitment to both the communities in which they live and to law and government. That broader framework requires evaluating police policies and practices with reference to public conceptions of procedural justice.
Gould on Prisons Before Modernity
Rebecca Gould (University of Iowa) has posted Prisons Before Modernity: Incarceration in the Medieval Indo-Mediterranean (Al-Masaq: Islam and the Medieval Mediterranean 24.2 (2012): 179-197) on SSRN. Here is the abstract:
Over the course of the sixth/twelfth century, a new literary genre entered the Eastern Islamic world: the Persian prison poem (habsiyyat). Far from being an isolated event, the prison poem was forged when punishment came to be reconfigured as incarceration. This development was reflected in literary texts extending across South Asia, Azerbaijan, and continental Europe. Locating the institution of the prison outside European modernity, this study traces the material grounds for this new literary form and situates this archive globally. Concomitantly with studying the medieval literature of incarceration, it evaluates the Indo-Mediterranean as a discursive rubric for the study of pre-modern literary cultures.
August 2, 2012
Dubber on Corporate Criminal Liability
Markus D. Dubber (University of Toronto - Faculty of Law) has posted The Comparative History and Theory of Corporate Criminal Liability on SSRN. Here is the abstract:
This paper is an exercise in comparative legal history and theory. It argues, first, that traditional views of the history of corporate criminal liability in German and Anglo-American law are interestingly mistaken, or at least incomplete, taken independently and comparatively, and, second, that histories and theories of corporate criminal liability engage in symbolic jurisprudence insofar as they treat their subject as a litmus test for other, more fundamental, phenomena, such as the relative influence of Roman and German law or the relative commitment of systems of criminal law to science, truth, and justice.
Garrett on Convicting the Innocent
Brandon L. Garrett (University of Virginia School of Law) has posted Introduction: New England Law Review Symposium on 'Convicting the Innocent' (New England Law Review, Vol. 46, No. 671, 2012) on SSRN. Here is the abstract:
Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus. Each has done ground-breaking work focusing on evidence in criminal investigations and prosecutions, looking beyond just what we know from the wrongful convictions that do come to light. This Symposium issue returns the focus to research that can tell us more about the causes of wrongful convictions, and in this introduction I try to do justice to their remarkable contributions.
August 1, 2012
Tate on the Citizen's Role in Protecting Innocents
Mary Kelly Tate (University of Richmond - School of Law) has posted Commissioning Innocence and Restoring Confidence: The North Carolina Innocence Inquiry Commission and the Missing Deliberative Citizen (Maine Law Review, Vol. 64, No. 2, 2012) on SSRN. Here is the abstract:
Since 1989, the United States has witnessed 289 DNA exonerations, with exonerees serving an average of thirteen years in prison. Although DNA and its unmatched power for conclusive results is what brought popular attention to wrongful convictions, the scope of the problem is vastly larger than the number of known DNA exonerations. The actual number of convicted individuals who are factually innocent is unknown. The state of North Carolina has recently responded to this national crisis via a newly created state agency. This essay applauds North Carolina’s response, but urges that ordinary citizens, qua jurors, be active participants in its important work.
Berman on Domestic Intelligence
Emily Berman (Brooklyn Law School) has posted Domestic Intelligence: New Powers, New Risks (New York University School of Law, Brennan Center for Justice, January 18, 2011) on SSRN. Here is the abstract:
This paper assesses historical evolution of guidelines governing FBI intelligence-collection operations and discusses the risks to civil liberties that the current rules pose.
July 31, 2012
Cole on Forensic Science and Wrongful Convictions
Simon A. Cole (University of California, Irvine - Department of Criminology, Law and Society) has posted Forensic Science and Wrongful Convictions: From Exposer to Contributor to Corrector (New England Law Review, Vol. 46, No. 4, 2012) on SSRN. Here is the abstract:
Brandon Garrett’s book, Convicting the Innocent, makes a number of important contributions to the scholarly and public discourse on miscarriages of justice. In this essay, I will focus on the contribution that is most related to my own research interests: its contribution to our understanding of the relationship between forensic science and miscarriages of justice. I will first endeavor to place Garrett’s contribution in historical context by briefly tracing the history of discussions about forensic science and wrongful convictions. I will then highlight in what way Garrett’s work has furthered our understanding. I will then discuss some of the criticisms of Garrett’s work by advocates of forensic science and try to explain how data limitations contribute to the difference of opinion between Garrett and his critics. I will conclude by suggesting a different, more theoretically grounded way of conceptualizing miscarriages of justice that might help us move beyond these differences of opinion. Ultimately, however, my suggestions will be highly speculative: data limitations, again, will make it difficult to make any strong empirical inferences about the relationship between forensic science and wrongful convictions.
Berry on Mandatory Sentences after Miller
William W. Berry III (University of Mississippi School of Law) has posted The Mandatory Meaning of Miller on SSRN. Here is the abstract:
In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.
In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.
This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.
Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.
Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller - when 'mandatory' matters - in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case - why 'mandatory' matters - for adopting this approach in Eighth Amendment cases.
July 30, 2012
"Army Jury Acquits Sergeant of Driving Private to Suicide in Afghanistan"
From the New York Times:
FORT BRAGG, N.C. — A military jury on Monday acquitted a sergeant on the most serious charges in the death of Pvt. Danny Chen, a Chinese-American from Manhattan who killed himself last year while deployed in Afghanistan.
. . .
The verdicts suggested that prosecutors had difficulty convincing the military jury that Sergeant Holcomb’s treatment of Private Chen, which the prosecutors said included brutal hazing and racial taunts, had led directly to the private’s suicide.
Ferzan on Tadros on "The Ends of Harm"
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Why 'The Ends of Harm' is a Dead End (Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
In The Ends of Harm, Victor Tadros claims that the general justifying aim of the criminal law should be general deterrence. He also takes seriously that we cannot use people as a means, and thus he argues that we may only punish people in the name of general deterrence who have a “duty” to suffer. Tadros claims that this duty arises as follows: An offender initially has a duty not to harm the victim. If the offender violates that duty, the offender still has a duty to stop the harm from occurring (so that, for example, an offender would have to jump in front of his own bullet). And if the harm does occur, then the offender has a duty to rectify that harm. This duty to rectify, argues Tadros, requires the defendant not only to compensate the victim but also to protect the victim to the extent that he would have been able to have been harmed to prevent the threat from occurring. Tadros further advances intricate arguments for why the state may therefore punish the offender to protect other potential victims to the extent of the offender’s duty to rectify.
This symposium contribution seeks to explore three problems with Tadros’ analysis, ultimately arguing that Tadros’ theory fails on its own terms. First, attempts present a substantial problem for Tadros’ regime because attempts do not give rise to duties to prevent harm because there is no harm to be prevented. Tadros’ attempt to account for attempts, as completed offenses of diversions of security resources, ultimately leads to punishments that bear little resemblance to the crime attempted. Such a wildly counterintuitive result creates problems for a regime premised on general deterrence, which must be understood and respected.
Second, Tadros’ regime will often exempt the rich from suffering criminal punishment. Tadros claims that duties to prevent harms from occurring (by jumping in front of bullets) are only enforceable when compensation will be inadequate. However, affluent offenders may be able to fully compensate. Moreover, since the scope of the duty to suffer will be determined by what remains of the duty after the victim is compensated, affluent offenders will be able to compensate more and thereby suffer less. Again, the actual sentences will thereby bear little resemblance to the rationale for criminalization, thus threatening the deterrent message of the law. Moreover, a system that exacerbates distributive inequalities will not achieve public respect.
Third, Tadros cannot justify taking the duty that the defendant owes to the victim and forcing the victim to transfer this asset to the state. In his quest to articulate a theory that does not impermissibly use defendants, he ultimately endorses a theory that impermissibly uses their victims. He thus fails to achieve the very goal he sets for himself, which is to achieve general deterrence without impermissibly using anyone.
Goodwin on Fetal Drug Law Policy and Social Profiling
Michele Goodwin (University of Minnesota Law School) has posted Precarious Moorings: Tying Fetal Drug Law Policy to Social Profiling (Rutgers Law Review, Vol. 42 (2011)) on SSRN. Here is the abstract:
Legislative efforts to reduce the incidence of babies born low-birth weight is tangled in race and class profiling, which detracts from an evidence-based approach to reduce fetal health harm. On inspection, prescription drug use, domestic violence, and assisted reproductive technology measure significantly in the incidence of fetal health harm and the dramatic rise in neonatology treatments and costs. Goodwin’s article provides an empirical counter narrative to the provocative legislative assumptions about fetal health harm.
A Gun Control Issue You Probably Hadn't Worried About--Yet (Kolber)
There is a piece in Popular Science about people using the developing field of home 3D-printing technology to create and share 3D-printed pistols and rifles. A snippet:
While there are still some details to sort out, it's pretty clear that making weapons at home using 3-D printers from commonly available materials is going to become much more commonplace in the near future. In fact, as 3-D printing technology matures, materials feedstock improves, and designs for weapons proliferate, we might soon see the day when nearly everyone will be able to print the weapons of their choice in the numbers they desire, all within the privacy of their own homes.
July 29, 2012
Top-Ten Recent SSRN Downloads
|1||681||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||403||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 [4th last week]
|3||389||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 [2nd last week]
|4||292||Predictive Policing: The Future of Reasonable Suspicion
Andrew Guthrie Ferguson,
UDC David A. Clarke School of Law,
Date posted to database: May 2, 2012 [3rd last week]
|5||231||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
|6||226||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
|7||212||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 [8th last week]
|8||212||Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason
University of Windsor - Faculty of Law,
Date posted to database: July 13, 2012 [new to top ten]
|9||211||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012 [7th last week]
|10||164||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 [9th last week]