August 18, 2012
Fissell on Taxpayer Harm and Criminalization
Brenner M. Fissell has posted Taxpayers as Victims: Taxpayer Harm & Criminalization (NYU Journal of Law & Liberty, Forthcoming) on SSRN. Here is the abstract:
Criminal statutes are least objectionable when they are justified by the notion that the conduct being prohibited is harmful to others. Over the past few decades, a new argument has arisen that makes this very easy to do. This argument appeals to the reality that often when one’s conduct causes or risks physical injury to one’s self, governmental services (e.g. rescue, police, healthcare) will be provided, and that the cost of these services is an unfair burden imposed upon taxpayers. This argument understands the taxpayers to be victims, and the self-harming conduct to therefore be harmful to others, and justifiably criminalized. This Article unearths this so far un-assessed argument from various legal sources, and analyzes it with the tools of criminal law theory to see whether or not it can hold water. Ultimately, the conclusion is “no,” and an alternative solution is advanced: civil liability.
Lollar on Child Pornography and Restitution
Cortney Lollar (Washington University School of Law) has posted Child Pornography and the Restitution Revolution (Journal of Criminal Law and Criminology, 2013) on SSRN. Here is the abstract:
Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography. Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.
August 16, 2012
Buchanan on Engendering Rape
Kim Shayo Buchanan (USC Gould School of Law) has posted Engendering Rape (UCLA Law Review, Vol. 59, No. 2, 2012) on SSRN. Here is the abstract:
This article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to counterstereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counterstereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counterstereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counterstereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.
Nelson-Butler on Blackness as Delinquency
Cheryl Nelson-Butler (Southern Methodist University) has posted Blackness as Delinquency (Washington University Law Review, 2013 Forthcoming) on SSRN. Here is the abstract:
This article makes several important contributions to the scholarly literature on the juvenile court. To my knowledge, this will be the first law review article to address both the role of “Blackness” in shaping the first juvenile court as well as the black community’s response to the court’s jurisprudence. This article breaks new ground on two fronts. First, it considers the first juvenile court’s treatment of black youth within the context of the heightened racial oppression immediately following the Supreme Court’s landmark decision in Plessy v. Ferguson. Second, this article recovers the lost story of the black club movement’s response to race issues within the juvenile court movement. In doing so, this article reconsiders the history of the national black club women’s movement within a new framework – that of black women as advocates for juvenile and criminal justice reform. Furthermore, a major issue that these child savers faced remains one that scholars of the juvenile court’s early history have not fully explored – race.
Thus, this article makes two main arguments. First, from its inception, the juvenile court perpetuated existing racial myths about Blackness and delinquency and enforced societal notions of race and class stratification. Second, the National Association of Colored Women (NACW) responded by placing criminal and juvenile justice issues as a major component of its civil rights agenda. From 1899 to 1930, the NACW’s efforts to challenge myths about black delinquency impacted the development of the juvenile court system and its jurisprudence. The NACW’s particular interest in juvenile justice sheds new light on how.
Freeman on De Facto LWOP Sentences after Graham v. Florida
Mark Freeman has posted Meaningless Opportunities: Graham v. Florida’s 'Meaningful Opportunity for Release' for Juvenile Offenders and the Reality of De Facto LWOP Sentences (McGeorge Law Review, Vol. 44, 2013) on SSRN. Here is the abstract:
In 2010 the United States Supreme Court decided Graham v. Florida, which held that LWOP sentences for juvenile, non-homicide offenders were unconstitutional. This Comment argues that de facto LWOP sentences, lengthy term of years sentences that exceed a juvenile's natural life expectancy and effectively guarantee the offender will die in prison, are also unconstitutional for juvenile non-homicide offenders.
Part II provides a brief overview of the Supreme Court’s Eighth Amendment jurisprudence and how lower courts have responded to Graham. Part III explains why de facto LWOP sentences for juveniles who commit non-homicide crimes will fail the Supreme Court’s traditional Eighth Amendment tests and argues for a categorical ban against these sentences. Part IV discusses the practical implications of this Comment and whether juvenile offenders will see any meaningful change if courts adopt a categorical ban. Part V concludes that courts should embrace the spirit of Graham’s holding and provide a meaningful opportunity for juvenile offenders to experience life outside of prison before they die.
Milot on Attorney Innumeracy
Lisa Milot (University of Georgia Law School) has posted Illuminating Innumeracy (Case Western Reserve Law Review, Vol. 63, (2013) (Forthcoming)) on SSRN. Here is the abstract:
Everyone knows that lawyers are bad at math. Many fields of law, though — from explicitly number-focused practices like tax law and bankruptcy, to the less obviously numerical fields of family law and criminal defense — require interaction with, and sophisticated understandings of, numbers. To the extent that lawyers really are bad at math, why is that case? And what, if anything, should be done about it?
In this Article, I show the ways in which our acceptance of innumeracy harms our ability to practice and think about the law. On a practical level, we miscalculate numbers, oversimplify formulas, and, ultimately, misapply mathematical principles. These shortcomings, then, cause us to misunderstand and accept without question the assumptions and biases hiding in the shadows of numerical information, limiting our ability to fully represent our clients.
In an effort to being to understand and move beyond the innumeracy present in the law, I distinguish between two types of innumeracy by lawyers: objective innumeracy (or a lack of math competence) and subjective innumeracy (or a lack of math confidence) and suggest that empirical research into the causes of legal innumeracy is needed. I conclude by providing suggestions for beginning to overcome innumeracy in the law in our roles as practitioners, lawmakers, law professors, and law students.
August 15, 2012
Thide on Judicial Nullification of the Antitrust Sentencing Guideline
Frederick Thide has posted Judicial Policy Nullification of the Antitrust Sentencing Guideline (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
The Federal Sentencing Guidelines provide for special treatment of hard-core cartel activity to ensure that penalties for antitrust crime provide adequate deterrence. The U.S. Supreme Court’s transformational sentencing cases, however, have returned significant discretion to sentencing judges, potentially undermining the policy balance achieved by the Antitrust Guideline. Judicial discretion in sentencing, however, is not unlimited. Rather, judges are required to impose sentences that are “sufficient, but not greater than necessary” to achieve the goals of sentencing, subject to appellate review for reasonableness. This note analyzes whether there is a sustainable basis for judicial policy disagreement with the Antitrust Guideline’s use of a proxy to measure economic harm. This note argues that judicial discretion to vary from the Antitrust Guideline’s harm proxy, appropriately cabined by appellate review, will not undermine antitrust sentencing policy. Finally, this note concludes that judicial discretion may actually enhance other legitimate goals of white-collar sentencing, including moral condemnation.
"Pockets of City See Higher Use of Force During Police Stops"
From The New York Times. In part:
The police used some level of physical force in more than one in five stops across the city last year, according to an analysis by The New York Times. In the West Bronx, the rate was more than double that. Yet the high level of force seldom translated into arrests, raising questions among black and Latino leaders about whether officers were using enough discretion before making the stops in the first place, much less before resorting to force.
. . .
City Councilman Fernando Cabrera, who represents the West Bronx, called the numbers “alarming.”
“If indeed they were resisting arrest, or if there were any other kinds of crimes being committed that would call for that kind of aggressiveness, you would expect to see a correlation in arrests,” he said. “Instead, we see the total opposite.”
August 14, 2012
Anderson on Defender Caseload
Heidi Reamer Anderson (Florida Coastal School of Law) has posted Qualitative Assessments of Effective Assistance of Counsel (Washburn Law Journal, Vol. 51, No. 3, 2012) on SSRN. Here is the abstract:
In this invited essay, I suggest that public defenders seeking relief from excessive caseloads differentiate themselves from other burdened stakeholders by using a more qualitative, ethics-based approach to assess effective assistance of counsel. Part II of this Article chronicles the current quantitative, numbers-based approach to measuring effective assistance given the U.S. Supreme Court’s current Strickland standard. Part III.A turns to the more qualitative, ethics-based standards for assessing effective assistance as expressed in the ethical rules. Part III.B then illustrates how to use those qualitative standards when seeking caseload relief from courts. First, in Part III.B.1, I show how to view the excessive caseload problem as an unethical conflict of interest that should be addressed at the outset of a proceeding. By viewing an excessive caseload as a conflict of interest, rather than as a competency issue, public defenders can further distinguish their claims for relief from the claims of other overworked constituents. Specifically, in Part III.B.2, I show how public defenders could use existing qualitative ethical standards to highlight the hidden harms of excessive caseloads and to increase the chances of their ethical obligations being honored by judges. Part IV concludes that using qualitative ethical standards is a particularly advisable approach in times of resource constraint when everyone — lawyers, judges and legislators — can be “blinded by numbers.”
Greenberg on Mistakes of Law
Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted How Mistakes Excuse: Genuine Desert, Moral Desert, and Legal Desert (Newsletter of the American Philosophical Association, Forthcoming) on SSRN. Here is the abstract:
Gideon Yaffe’s "Excusing Mistakes of Law" seeks to explain "the asymmetry between the excusing force of mistakes of fact and law." In this paper, I offer a competing explanation of the asymmetry and criticize Gideon's explanation. Behind some of the specific issues concerning mistake of fact and mistake of law lie more fundamental questions about the nature of law and about the relation between law and morality. Underlying Gideon's proposal seems to be an assumption that the legal domain has an internal structure parallel to that of the moral domain: legal reasons, legal obligations, legal excuses, and so on bear the same relations to each other that, within the moral domain, moral reasons, moral obligations, moral excuses, and so on bear to each other. In particular, Gideon relies on the assumption that just as, absent special circumstances, one who acts on morally wrong principles is, for that reason, morally blameworthy or morally deserving of reproach or punishment, so one who acts on legally wrong principles is, for that reason, legally deserving of punishment.
I argue that this assumption ignores the problem of explaining when and why mistake of law excuses (and when and why it does not), rather than helps us toward a solution. To the extent that the law's treatment of mistake of law is puzzling, it is in large part because, in many cases of legal mistake, the defendant does not seem genuinely deserving of punishment, whether the relevant understanding of desert is specifically moral or more general. Perhaps ironically, Gideon's assumption that legal desert relates to legal mistake in the same way that moral desert relates to moral mistake yields a technical notion of legal desert, one on which acting on the basis of false legal beliefs makes one ipso facto deserving of punishment. We cannot usefully understand when and why legal mistakes excuse in criminal law in terms of a technical notion of legal desert that is internal to the legal domain and independent of moral desert (and of desert simpliciter), but modeled after it. Instead, we need to explain how legal mistakes relate to genuine desert.
August 13, 2012
Cook, Machin, Marie, & Mastrobuoni on the Economics of Crime
Philip J. Cook , Stephen J. Machin , Olivier Marie and Giovanni Mastrobuoni (Duke University - Sanford School of Public Policy , University College London - Department of Economics , Maastricht University and Collegio Carlo Alberto) have posted Lessons from the Economics of Crime ('Lessons from the Economics of Crime' in Lessons from the Economics of Crime, edited by P.J. Cook, S.J. Machin, O. Marie, and G. Mastrobuoni, MIT Press, Forthcoming) on SSRN. Here is the abstract:
What have the economists contributed to the study of criminal behavior and crime control? In what follows, to motivate and describe the contributions to this edited volume, we discuss three domains:
• A normative framework for evaluating criminal law and crime prevention, and the application of sophisticated quantitative methods to analyze the causes of crime and the effects of crime-control measures in this framework;
• The conception of criminal behavior as individual choice, influenced by perceived consequences;
• The aggregation of individual choices to a systems framework for understanding crime rates and patterns.
The papers in this volume are informed by and contribute to all of these domains.
Dripps on Gideon
This essay, based on an address delivered at the Sixth Annual Texas Tech Criminal Law Symposium, explores the paradox of Gideon v. Wainwright and suggests some new directions for improving defense of the indigent against criminal charges. The paradox of Gideon lies in the widespread agreement (1) that Gideon was a great decision; (2) that from a formal perspective, the Sixth Amendment’s text and history provide scant support for Gideon’s adoption of the Zerbst rule requiring appointment for all indigent defendants in felony cases; and (3) that from a functional perspective, Gideon has not led to effective representation for all defendants. If almost no one thinks Gideon was required by text and history, and if almost no one thinks Gideon has delivered effective representation, why does almost everyone love Gideon?
Reforms are put forward for discussion. These include (1) exempting some self-representing felony defendants, like their misdemeanor counterparts, from sentences of incarceration if convicted; (2) giving counsel for indigent defendants discretion to decline unpromising appeals; (3) permitting lay representation of juvenile and misdemeanor defendants; and (4) recognizing indigent defense as a separate career track from the general practice of law.
Chettiar, Bunting & Schotter on Mass Incarceration of the Elderly
Inimai M. Chettiar , William Bunting and Geoffrey Schotter (New York University (NYU) - School of Law , New York University (NYU) - School of Law and affiliation not provided to SSRN) have posted At America's Expense: The Mass Incarceration of the Elderly (American Civil Liberties Union, June 2012) on SSRN. Here is the abstract:
Elderly prisoners are twice as expensive to incarcerate as the average prisoner and pose little danger to society, yet the population of elderly prisoners in the United States is exploding. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it.
This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s. Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.
A new ACLU report, “At America's Expense: The Mass Incarceration of the Elderly,” makes a number of data-driven findings and issues recommendations for reform.
Top-Ten Recent SSRN Downloads
|1||437||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]
|2||328||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 [3rd last week]
|3||270||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 [9th last week]
|4||269||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
|5||266||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 [10th last week]
|6||235||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 [5th last week]
|7||224||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012 [6th last week]
|8||152||Reconceptualizing the Burden of Proof
Edward K. Cheng,
Vanderbilt Law School,
Date posted to database: June 19, 2012 [new to top ten]
|9||146||Does Corruption Pay in Indonesia? If so, Who are Benefited the Most?
Universitas Gadjah Mada,
Date posted to database: July 16, 2012 [new to top ten]
|10||146||Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury
Mona Lynch, Craig Haney,
University of California, Irvine - Department of Criminology, Law and Society, University of California, Santa Cruz - Department of Psychology,
Date posted to database: June 26, 2012 [new to top ten]
August 12, 2012
Donohue, Aneja & Zhang on the Impact of Right to Carry Laws
John J. Donohue III (pictured), Abhay Aneja and Alexandria Zhang (Stanford Law School , Stanford University and Johns Hopkins University) have posted The Impact of Right to Carry Laws and the NRC Report: The Latest Lessons for the Empirical Evaluation of Law and Policy on SSRN. Here is the abstract:
For over a decade, there has been a spirited academic debate over the impact on crime of laws that grant citizens the presumptive right to carry concealed handguns in public – so-called right-to-carry (RTC) laws. In 2005, the National Research Council (NRC) offered a critical evaluation of the “More Guns, Less Crime” hypothesis using county-level crime data for the period 1977-2000. 17 of the 18 NRC panel members essentially concluded that the existing research was inadequate to conclude that RTC laws increased or decreased crime. One member of the panel, though, concluded that the NRC's panel data regressions supported the conclusion that RTC laws decreased murder.
We evaluate the NRC evidence, and improve and expand on the report’s county data analysis by analyzing an additional six years of county data as well as state panel data for the period 1977-2006. We also present evidence using both a more plausible version of the Lott and Mustard specification, as well as our own preferred specification (which, unlike the Lott and Mustard model used in the NRC report, does control for rates of incarceration and police). While we have considerable sympathy with the NRC’s majority view about the difficulty of drawing conclusions from simple panel data models, we disagree with the NRC report’s judgment that cluster adjustments to correct for serial correlation are not needed. Our randomization tests show that without such adjustments the Type 1 error soars to 44-75 percent. In addition, the conclusion of the dissenting panel member that RTC laws reduce murder has no statistical support.
Our paper highlights some important questions to consider when using panel data methods to resolve questions of law and policy effectiveness. Although we agree with the NRC’s cautious conclusion regarding the effects of RTC laws, we buttress this conclusion by showing how sensitive the estimated impact of RTC laws is to different data periods, the use of state versus county data, particular specifications, and the decision to control for state trends. Overall, the most consistent, albeit not uniform, finding to emerge from both the state and county panel data models conducted over the entire 1977-2006 period with and without state trends and using three different specifications is that aggravated assault rises when RTC laws are adopted. For every other crime category, there is little or no indication of any consistent RTC impact on crime. It will be worth exploring whether other methodological approaches and/or additional years of data will confirm the results of this panel-data analysis.