CrimProf Blog

Richardson & Goff on Self Defense and the Suspicion Heuristic

L. Song Richardson (pictured) and Phillip Atiba Goff (University of Iowa - College of Law and UCLA Department of Psychology) have posted Self Defense and the Suspicion Heuristic (Iowa Law Review, Vol. 98, p. 293, 2012) on SSRN. Here is the abstract:

The doctrine of self-defense evaluates the reasonableness of criminality judgments. Yet, it fails to account for how non-conscious cognitions place those who are stereotyped as criminal at greater risk of mistaken judgments of criminality — sometimes with deadly consequences. Studies reveal, for example, that people are more likely to see weapons in the hands of unarmed black men than unarmed white men, and to more quickly shoot them as a result. Because self-defense doctrine does not attend to these judgment errors, it fails to interrogate how, if at all, these mistakes should affect assessments of reasonableness. Drawing from powerful and well-established mind sciences research, this Essay introduces a concept that we term the “suspicion heuristic.” This concept explains how non-conscious processes can lead to systematic and predictable errors in judgments of criminality — and influence subsequent behaviors — regardless of conscious racial attitudes. This Essay argues that in order to provide more equal protection, security, and liberty to all victims of violence, the law of self-defense should account for the suspicion heuristic in its assessments of reasonableness. This Essay traces the broad outlines of a theoretical and legal framework for doing so.

"Now 12, California Boy Comes to Trial in Killing of Neo-Nazi Father"

From The New York Times:

And those facts raise several more philosophical quandaries that, depending on how the judge weighs the answers, may determine the outcome of the trial. Among them: whether virulent racism can amount to parental abuse, whether a child exposed to such hate can understand the difference between right and wrong, and whether someone who grows up in such toxic circumstances can be blamed for wanting a way out.

The prosecutor, Michael Soccio, says that the actions of Joseph Hall have little to do with Nazism, but rather with his anger at being punished and spanked by his father at a party the day before the killing and the boy’s worries that his father would leave his family. . . .

But Joseph’s public defender, Matthew J. Hardy, says his client has neurological and psychological problems, compounded by exposure to neo-Nazi “conditioning” and physical abuse in the home.

. . .

Instead, Mr. Hardy said, Joseph thought he was being a hero by shooting his father. “He thought what he was doing was right,” said Mr. Hardy. “And while that may be hard for other people to understand, in his mind, in a child’s mind, if he thought it was right, or at least didn’t think it was wrong, then he cannot be held responsible.”

. . .

California’s penal code also says that children under 14 cannot be charged with a crime without clear proof that “they knew its wrongfulness.”

"FBI: violent crime drops again in 2011"

From Jurist:

The FBI released its annual report on violent and property crime, Crime in the United States 2011 [materials; press release], on Monday, which found that the number of violent crimes reported to law enforcement decreased for the fifth consecutive year and the number of property crimes reported decreased for the ninth consecutive year. The report is based on the Uniform Crime Reporting Program(UCR) [official website]. The report found that violent crime decreased by 3.8 percent and property crime decreased by 0.5 percent in 2011 from 2010. 

Schopp on Mental Illness and the Expressive Functions of Punishment

Robert F. Schopp has posted Mental Illness, Police Power Interventions, and the Expressive Functions of Punishment on SSRN. Here is the abstract:

The state exercises coercive force under the police power to protect the public order, security, and justice. When individuals who manifest significant psychological impairment harm or endanger others, police power interventions can involve several different institutional structures within the criminal justice system or the alternative institution of civil commitment. The analysis presented in this paper draws attention to the significance of the expressive functions of criminal punishment in selecting the most justified institutional structures for police power interventions intended to prevent impaired individuals from harming others. These functions arguably carry important implications for impaired individuals who harm or endanger others, for general categories of impaired individuals, for the public, and for the integrity of the process.

O'Rourke on Structural Overdelegation in Criminal Procedure

Anthony O'Rourke (State University of New York (SUNY) at Buffalo Law School) has posted Structural Overdelegation in Criminal Procedure (Journal of Criminal Law and Criminology, Vol. 103, 2013) on SSRN. Here is the abstract:

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the Supreme Court’s hostility to protecting criminal procedure rights. Instead, it arises from a set of institutional pressures that, in combination, differentiate criminal procedure from other forms of constitutional decision-making. 

By identifying the problem of structural overdelegation, this Article clears away much of the confusion that complicates normative debates about the Supreme Court’s criminal procedure decisions. Why does the Supreme Court so frequently grant discretionary authority to law enforcement institutions that other observers find untrustworthy? How can one tell whether the Court has granted “too much” discretion to law enforcement officials, and what does that phrase even mean? By turning attention to criminal procedure’s structure, this Article offers a framework for answering these questions, and for deepening our understanding of criminal procedure decision-making.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
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9	140	The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law  Emad Hanzala Atiq,  Yale University, Law School,  Date posted to database: October 18, 2012 [new to top ten]
10	132	Judith Shklar on the Philosophy of International Criminal Law  Samuel Moyn,  Columbia University,  Date posted to database: September 20, 2012 [9th  last week]