August 10, 2012
Kuha & Jackson on Sensitive Survey Questions on Criminal Behavior
Jouni Kuha and Jonathan Jackson (London School of Economics and Political Science and London School of Economics & Political Science - Methodology Institute) have posted The Item Count Method for Sensitive Survey Questions: Modelling Criminal Behaviour on SSRN. Here is the abstract:
The item count method is a way of asking sensitive survey questions which protects the anonymity of the respondents by randomization before the interview. It can be used to estimate the probability of sensitive behaviour and to model how it depends on explanatory variables. We analyse item count survey data on the illegal behaviour of buying stolen goods. The analysis of an item count question is best formulated as an instance of modelling incomplete categorical data. We propose an efficient implementation of the estimation which also provides explicit variance estimates for the parameters. We then suggest specifications for the model for the control items, which is an auxiliary but unavoidable part of the analysis of item count data. These considerations and the results of our analysis of criminal behaviour highlight the fact that careful design of the questions is crucial for the success of the item count method.
Young on a Moral Defense of Plea Bargaining
This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, that fact would not redeem plea-bargaining if it were, as the critics claim, unjust. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be in the first place thrust upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that better moral answer by focusing on several key critical arguments. Specifically, this paper offers original arguments challenging the critical claims that plea bargaining leads to the conviction of too many innocents (the "innocence problem"); that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases (the "trial penalty" problem).
Jackson & Gouseti on Fear of Crime
Jonathan Jackson and Ioanna Gouseti (London School of Economics & Political Science - Methodology Institute and London School of Economics & Political Science - Methodology Institute) have posted Fear of Crime: An Entry to the Encyclopedia of Theoretical Criminology (Encyclopedia of Theoretical Criminology, J. Mitchell Miller, ed., Wiley-Blackwell, Forthcoming) on SSRN. Here is the abstract:
Fear of crime describes a range of different feelings, thoughts and behaviours that people have regarding the subjective risk of criminal victimization. In this entry the main conclusions of criminological inquiry on these feelings, thoughts and behaviours are reviewed. We also consider the ways in which individuals impute criminal threat onto individuals, groups and community conditions, and propose possible avenues for future research.
August 9, 2012
Stern on Mens Rea, Insanity, and Psychopaths
Craig A. Stern (Regent University School of Law) has posted The Heart of Mens Rea and the Insanity of Psychopaths on SSRN. Here is the abstract:
Psychopaths are mentally ill — insane — but as a rule have no insanity defense against criminal liability. This article explains why.
The explanation hinges upon the doctrine of mens rea, the criminal mind necessary for criminal liability. The insanity defense is an excuse, an affirmative defense for those with mens rea enough to be guilty. But the defense should take its essential purpose and shape from the doctrine of mens rea.
This relation between mens rea and the excuse of insanity is why a defendant insane as a matter of mental health may not be insane as a matter of criminal law. Only an insanity that calls into question the usual workings of the doctrine of mens rea should excuse from criminal liability. If psychopathy is not such an insanity, it should not excuse.
Similarly, though philosophers may argue that psychopathy supplies an excuse from moral fault, the criminal law may have no qualms about punishing psychopaths if the doctrine of mens rea controls the insanity defense. The doctrine of mens rea may well entail an insanity defense far narrower than that entailed by general philosophical notions of human responsibility.
This article explores the relation between mens rea, the insanity defense, and psychopathy. Part I describes psychopathy. Part II examines the doctrine of mens rea. Part III shows how the doctrine of mens rea entails an insanity defense. Part IV explains why such an insanity defense leaves psychopaths unexcused. In Part V the article briefly concludes.
Cucolo & Perlin on Preventing Sex-Offender Recidivism
Heather Cucolo and Michael L. Perlin (pictured) (New York Law School and New York Law School) has posted Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration on SSRN. Here is the abstract:
The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the availability of meaningful treatment for this population remains uncertain in its availability and debatable as to its effectiveness. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to authentically treating individuals who have committed sexual offenses with humanity, will it be possible to reduce recidivism and foster successful community reintegration.
This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.
August 8, 2012
Berman on Rehabilitating Retributivism
This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve — to suffer? to be punished? something else? Second, what does it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies.
Murray on Incarceration and Radicalisation in UK Prisons after 9/11
Colin R.G. Murray (Newcastle Law School) has posted 'To Punish, Deter and Incapacitate': Incarceration and Radicalisation in UK Prisons after 9/11 (A. Silke, PRISONS, TERRORISM AND EXTREMISM (Routledge: 2013)) on SSRN. Here is the abstract:
"Punish, Deter and Incapacitate" is a quote drawn from Lord Bingham's view of the major factors driving sentencing (notably not rehabilitation) in counter-terrorism cases ( 1 Cr App Rep (S) 477, 480). This paper considers the arguments of security analysts (e.g. Clarke and Soria, 2010) that any "incapacitation" resultant from the UK's criminalisation of terrorist acts is negated as convicted terrorists are able to engage in the radicalisation of their fellow inmates. It considers the development of prison policy towards individuals convicted of offences linked to political violence throughout the twentieth century and how this system has adapted, under the Prevent Strategy, to the risks posed by terrorist inmates in the last decade. It also considers the approach of the courts to challenges to detention conditions by terrorist prisoners in the cases of Bary ( EWHC 587 (Admin)) and King, Bourgass and Hussain ( EWCA Civ 376). This analysis challenges simplistic assumptions that terrorist "kingpins" are free to radicalise other inmates and that the prison authorities are powerless to prevent such activity as a result of human rights concerns.
"Perfect Crime Prevention" (Kolber)
EVEN if we could make it impossible for people to commit crimes, should we? Or would doing so improperly deprive people of their freedom?
This may sound like a fanciful concern, but it is an increasingly real one. The new federal transportation bill, for example, authorized funding for a program that seeks to prevent the crime of drunken driving not by raising public consciousness or issuing stiffer punishments — but by making the crime practically impossible to commit. The program, the Driver Alcohol Detection System for Safety (Dadss), is developing in-vehicle technology that automatically checks a driver’s blood-alcohol level and, if that level is above the legal limit, prevents the car from starting.
August 7, 2012
Goldberg on Probable Cause
Erica Rachel Goldberg (Pennsylvania State University - Dickinson School of Law) has posted Getting Beyond Intuition in the Probable Cause Inquiry on SSRN. Here is the abstract:
Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability of such practices can and should be quantified, but the vagueness of the probable cause standard renders it impossible for judges to determine which error rates are inconsistent with probable cause.
This article confronts the intersection between quantifiable evidence and the relentlessly fuzzy probable cause standard. It proposes that the probable cause standard be assigned a numerical value as a minimum threshold in cases where probable cause is based on mechanistic techniques that essentially replace a police officer’s own judgment. The article begins by exploring how the police and courts currently apply the probable cause standard, including courts’ confrontations with probabilities. It then explains why certain evidence should require quantified error rates to establish probable cause and how to properly calculate these error rates. In the final section, the article argues that assigning a minimum percentage to probable cause in appropriate circumstances would add much needed clarity to the law and protect against systemic abuses.
"Loughner Pleads Guilty in 2011 Tucson Shootings"
From the New York Times:
TUCSON — Jared L. Loughner pleaded guilty on Tuesday to carrying out a shooting rampage here last year that left six people dead and 13 others wounded, including Gabrielle Giffords, then a member of the House of Representatives. In exchange, the government has agreed not to seek the death penalty.
. . .
For prosecutors, pushing for a trial carried clear risks, legal experts said. Mr. Loughner could have exploded at any moment, or jurors could have been swayed by the defense’s arguments and found him not guilty by reason of insanity.
August 6, 2012
"Exploding Prison Populations and Drug Offenders — Valparaiso, IN"
The notice is at the Legal Scholarship Blog.
"Can Federal Border Patrol Agents Pull Over Cars Based Only on State Traffic Law Violations?"
Marceau & Rudolph on Pre-Counsel Plea Bargaining
Justin F. Marceau (pictured) and Nathan Rudolph (University of Denver Sturm College of Law and affiliation not provided to SSRN) have posted The Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel (89 Denv. U. L. Rev 327 (2012)) on SSRN. Here is the abstract:
Colorado’s procedures for handling misdemeanor prosecutions raise novel questions of Sixth Amendment law that have not been squarely addressed by state or federal courts. At the center of Colorado’s counsel conundrum is a statute, Colorado Revised Statute § 16-7-301, which requires the prosecution to negotiate plea deals with a person charged with a misdemeanor before the defendant has an opportunity to meet with an attorney.
Colorado’s pre-counsel plea bargaining system presents a trio of difficult Sixth Amendment questions, namely:
(1) At what point does the attachment of the right to counsel occur in Colorado (under Rothgery v. Gillespie County;
(2) Does the negotiation and entry of an un-counseled misdemeanor plea constitute a critical stage for which appointment and presence of counsel is required (under, for example, United States v. Wade); and
(3) Do sentences of time served or home arrest constitute “actual incarceration” (under the test announced in Scott v. Illinois)?
Colorado’s system for prosecuting misdemeanor offenses presents a constitutional conundrum that has important consequences for misdemeanor defendants, that is tantalizing for academics, and that is desperately in need of judicial review. This Article is designed for all three audiences. The direct constitutional analysis of Colorado’s provisions is designed to serve as a guidepost for judges and litigators. Likewise, the thorough accounting of the gaps in the academy’s collective knowledge about Sixth Amendment doctrine will hopefully spur additional empirical, historical, and doctrinal scholarship regarding the right to counsel in misdemeanor cases.
Haack on Science and Law
Susan Haack (University of Miami - School of Law) has posted Truth and Justice, Inquiry and Advocacy, Science and Law on SSRN. Here is the abstract:
There is tension between the adversarialism of the U.S. legal culture and the investigative procedures of the sciences, and between the law's concern for finalilty and the open-ended fallibilism of science. A long history of attempts to domesticate scientific testimony by legal rules of admissibility has left federal judges with broad screening responsibilities; recent adaptations of adversarialism in the form of court-appointed experts have been criticized as "inquisitorial," even "undemocratic." In exploring their benefits and disadvantages, it would make sense to look to the experience of other legal systems.
Choi & Davis on Enforcement of the Foreign Corrupt Practices Act
Stephen J. Choi and Kevin E. Davis (New York University (NYU) - School of Law and New York University (NYU) - School of Law) have posted Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act on SSRN. Here is the abstract:
We examine the factors that explain the distribution across companies and countries of sanctions imposed in Foreign Corrupt Practices Act (FCPA) enforcement actions. We use a dataset of FCPA actions resolved from 2004 to 2011. We find evidence that the sanctions in an individual FCPA action are positively correlated with the size of bribe, the profit related to the bribe, and the amount of business affected by the bribe. The sanction increases if a subsidiary faces FCPA charges, if the FCPA violation occurs in multiple countries, if the ultimate parent company of entities involved in the FCPA violation is foreign, and if foreign regulators are involved in the action. We also conduct a number of country-level tests to assess factors that explain the ultimate distribution of FCPA sanctions across countries. Looking to the distribution of aggregate total monetary sanctions by country where FCPA violations take place, we find that aggregate sanctions are proportional to our measure of overall bribe activity in a violation country. We report evidence that the SEC and DOJ impose disproportionately greater aggregate sanctions for violations in countries with a lower GNI per capita as well as weaker local anti-bribery institutions. The SEC and DOJ also impose disproportionately greater aggregate sanctions for violations where the home country of the ultimate parent company of FCPA defendants has a bilateral cooperation agreement with the SEC, a Mutual Legal Assistance Treaty with the United States, and stronger local anti-bribery institutions.
August 5, 2012
Top-Ten Recent SSRN Downloads
|1||705||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||402||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 [3rd last week]
|3||275||Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration
Heather Cucolo, Michael L. Perlin,
New York Law School, New York Law School,
Date posted to database: July 26, 2012 [new to top ten]
|4||230||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 [8th last week]
|5||227||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 [6th last week]
|6||214||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012 [9th last week]
|7||169||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 [10th last week]
|8||155||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 [new to top ten]
|9||236||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 [7th last week]
|10||241||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 [5th last week]