February 11, 2012
Davies & Fagan on Crime and Enforcement in Immigrant Neighborhoods
Garth Davies and Jeffrey Fagan (pictured) (Simon Fraser University (SFU) - School of Criminology and Columbia Law School) have posted Crime and Enforcement in Immigrant Neighborhoods: Evidence from New York City on SSRN. Here is the abstract:
Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The question is animated in part by a durable claim in criminology that areas with large immigrant populations are burdened by elevated levels of social disorder and crime. In contrast, more recent theory and research suggests that “immigrant neighborhoods” may simply be differentially organized and function in a manner that reduces the incidence of crime. Accordingly, this research investigates whether immigrants are associated with differences in area crime rates. In addition, we ask whether there are differences in the effects of immigration on neighborhood crime rates by the racial and ethnic makeup of the foreign born populations. Finally, we examine the effects of immigration on patterns of enforcement.
February 10, 2012
Donohue & Levitt on Joyce on Legalized Abortion and the Crime Rate
John J. Donohue III (pictured) and Steven D. Levitt (Stanford Law School and University of Chicago) have posted Further Evidence that Legalized Abortion Lowered Crime: A Reply to Joyce on SSRN. Here is the abstract:
Donohue and Levitt (2001) present a number of analyses that suggest a causal link between legalized abortion and reductions in crime almost two decades later when the cohorts exposed to legalized abortion reach their peak crime years. Joyce (2003) challenges that finding. In this paper, we demonstrate that Joyce's failure to uncover a negative relationship between abortion and crime is a direct consequence of his decision to focus exclusively on the six-year period 1985-90 without including adequate controls for the crack epidemic. We provide empirical evidence that crack hit the high-abortion early legalizing states harder and earlier. We then demonstrate that using precisely the same treatment and control groups as Joyce, but extending the data analysis to encompass the lifetime criminal experiences (as opposed to an arbitrary six-year window), the evidence strongly supports the hypothesis that legalized abortion reduces crime. We also show that our original results are robust to focusing on only the cohorts born immediately before or after Roe v. Wade. The data suggest that ease of access to abortion, rather than simply de jure legalization, is a critical determinant of the extent of the crime reduction.
Mathen & Plaxton on HIV, Consent, and Criminal Wrongs
Carissima Mathen and Michael Plaxton (University of Ottawa - Faculty of Law and College of Law, University of Saskatchewan) have posted HIV, Consent and Criminal Wrongs (Criminal Law Quarterly, Vol. 57, No. 4, p. 464, 2011) on SSRN. Here is the abstract:
Over a decade has elapsed since, in R. v. Cuerrier, the Supreme Court of Canada concluded that those who knowingly fail to disclose HIV positive status to their sexual partners are criminally culpable. Since then, the use of the criminal law in these circumstances has been criticized. It is suggested, in particular, that advances in the treatment of HIV-AIDS render several of Cuerrier’s key premises tenuous and in need of reconsideration. The Supreme Court has created an opportunity for such reconsideration in two appeals: R. v Mabior and R. v. DC. In this article we suggest that the Court should reconsider Cuerrier in a fundamentally different way, engaging more squarely with the boundaries of sexual assault. We believe that much of the criticism of Cuerrier, while thoughtful and important, proceeds from questionable premises of criminal responsibility that carry serious implications for the concept of consent to sexual activity.
February 9, 2012
Dripps on Crawford in California
Donald W. Dripps (University of San Diego School of Law) has posted On Reach and Grasp in Criminal Procedure: Crawford in California (North Carolina Journal of International Law and Commercial Regulation, Forthcoming) on SSRN. Here is the abstract:
This essay, forthcoming in a symposium on The Future of the Adversary System in the North Carolina Journal of International Law and Commercial Regulation, makes four related points. First, it explains the United States’ peculiar arrangement for adjudicating human rights claims in the federal criminal system for an international audience. Second, it documents the Supreme Court’s modern retreat from 1960s era interventions into state criminal procedure. Third, it exposes the irony of this modern retreat, meant to reduce the practical significance of the Court’s prior jurisprudence on rights in the criminal process, given the current Court’s recent pro-defense stance on one important issue: the new test for Sixth Amendment confrontation clause claims announced in Crawford v. Washington.
A systematic survey of 100 California appellate decisions applying the Supreme Court’s decision in Crawford v. Washington suggests that the federal courts, including the Supreme Court, have distinctly limited powers to directly control the state courts responsible for processing most criminal cases. The same evidence also suggests that the state courts, although reluctant to reverse convictions for Crawford errors, nonetheless apply the Supreme Court’s new doctrine with at least grudging good faith. So, fourth and finally, the essay addresses the interesting question of whether there is anything to be said from a normative point of view on behalf of affirming unenforceable rights claims in the criminal process. The Court has announced a robust confrontation right in state cases, but it has little practical power to enforce this prescription due to self-imposed limits on its remedial options. Hence my title — the Court’s “reach” exceeds its “grasp” in the criminal procedure context.
Curry & Doyle on Social Welfare and the Benefits to Crime
There exists a large literature on the optimal deterrence of crime. Within the literature, however, there exists a controversy over what the appropriate criterion is to determine optimality. The most popular method is that of maximization of a utilitarian welfare function. The controversy stems from the fact that the benefits to crime are included in the welfare analysis. Another criterion that could be used is that of cost minimization. This paper demonstrates that maximizing the sum of utilities is in fact equivalent to minimizing the costs of crime. The model developed also provides explanations for sanctions that increase in one's criminal history and why necessity may be a partial defense.
Evans & Stith on Proposed Responses to Post-Booker Sentencing Guidelines
Amy Baron-Evans and Kate Stith (affiliation not provided to SSRN and Yale University - Law School) have posted Booker Rules (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional. The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity. The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court. The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases. The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed. There is no need for a "Booker fix"; Booker is the fix.
Clermont on Standards of Proof
Kevin M. Clermont (Cornell University - School of Law) has posted Death of Paradox: The Killer Logic Beneath the Standards of Proof on SSRN. Here is the abstract:
The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof.
I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form a fuzzy degree of belief in a fact’s existence; they then apply the standard of proof in accordance with the theory of belief functions, by comparing their belief in a fact’s existence to their belief in its negation.
This understanding explains how the standard of proof actually works in the law world. It gives a superior mental image of the factfinders’ task, conforms more closely to what we know of people’s cognition, and captures better what the law says its standards are and how it manipulates them. One virtue of this conceptualization is that it is not a radically new view. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof, including the infamous conjunction paradox.
February 8, 2012
Visiting position at Duquesne Law
Details follow the jump.
Duquesne University School of Law may have an opening for a visiting professor to teach Criminal Law and Criminal Procedure for one, or possibly both semesters, during the 2012-2013 academic year. We especially encourage applications from racial minorities, women, and others who would enrich the diversity of our academic community. Interested applicants should send a résumé, along with a letter of interest, to Faculty Recruitment Committee at firstname.lastname@example.org. Electronic submissions are preferred. Candidates are strongly discouraged from submitting an application by mail. Applications should be received by March 1, 2012.
Pichler & Roemer on Recidivism and Sentencing Juveniles as Adults
Stefan Pichler and Daniel Roemer (Darmstadt University of Technology and University of Heidelberg - Alfred Weber Institute for Economics) has posted Juvenile Law and Recidivism in Germany - New Evidence from the Old Continent on SSRN. Here is the abstract:
In this paper, we analyze the effect of the criminal justice system on juvenile recidivism. Using a unique sample of German inmates, we are able to disentangle the selection into criminal and juvenile law from the subsequent recidivism decision of the inmate. We base our identification strategy on two distinct methods. First, we jointly estimate selection and recidivism in a bivariate probit model. In a second step, we use a discontinuity in law assignment created by German legislation and apply a (fuzzy) regression discontinuity design. In contrast to the bulk of the literature, which mainly relies on US data, we do not find that the application of criminal law increases juvenile recidivism. Rather, our results suggest that sentencing adolescents as adults reduces recidivism in Germany.
Sweeney on Padilla v. Kentucky
Maureen Sweeney (University of Maryland Francis King Carey School of Law) has posted Where Do We Go from Padilla v. Kentucky? Thoughts on Implementation and Future Directions (New England Law Review, Vol. 45, No. 2, 2011) on SSRN. Here is the abstract:
On March 31, 2010, the U.S. Supreme Court held in the landmark case of Padilla v. Kentucky that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right for non-U.S. citizens to be correctly and specifically advised about the likely immigration consequences of a plea agreement. The decision represents an important shift in the way courts have addressed such claims by noncitizen defendants. The Court’s decision recognizes a constitutional requirement that defense counsel provide advice in an area of law in which few defense counsel are knowledgeable, and therefore raises important and difficult questions about how counsel can comply with these duties, especially in the face of limited financial and human resources. The Court’s analysis may also have broader and equally important constitutional implications for limitations on the imposition of deportation and for the imposition of non-immigration related “collateral” consequences following convictions.
This Article explores some of those questions. It addresses some of the challenges to implementing the Court’s decision, including the complexity of the advice and representation it mandates and the realities of limited financial resources and expertise in the legal community on these issues. It identifies some of the broader doctrinal and analytical questions raised in the Court’s analysis, with an eye toward exploring some implications for other possible constitutional limits on imposing removal as a sanction for criminal activity and for the imposition of non-immigration related consequences following convictions. It identifies some ways that thoughtful response to the decision in the short term can lay the groundwork for developing best practices in the long run. Finally, it situates this discussion in the wider question of the most appropriate legal response to criminal activity by noncitizens, concluding that, while Padilla represents an appropriate accommodation by the criminal justice system of current immigration law regarding convictions, a better, more just legal framework would return to the immigration system the flexibility and discretion to respond appropriately and proportionately to convictions.
Rehavi & Starr on Racial Disparities in Charging and Sentencing
M. Marit Rehavi and Sonja B. Starr (pictured) (University of British Columbia and University of Michigan Law School) have posted Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences on SSRN. Here is the abstract:
This paper assesses the extent to which the large disparities in sentencing outcomes between black and white defendants can be explained by disparities in prosecutors' initial choice of charges, a critical stage overlooked by existing studies of sentencing disparities. To analyze charging, we pair newly constructed measures of charge severity with a newly linked dataset that traces federal cases from the arrest through sentencing.
We find that black arrestees, especially black males, face significantly more severe charges conditional on arrest offense and other observed characteristics. The disparities in the use of charges that carry mandatory minimum sentences are particularly striking. These disparities appear to be major drivers of sentencing disparity. Black males face significantly longer sentences than white males do, on average and at almost every decile of the sentence-length distribution, even after conditioning on arrest offense, criminal history, district, and age. However, the addition of controls for initial charges renders most of these disparities insignificant. Indeed, the otherwise-unexplained racial disparities at the mean and at most of the deciles can be almost entirely explained by disparities in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence.
February 7, 2012
Klumpp and Mialon on Hate Crimes
This paper investigates the effects of hatred in two-player games. We model hate as “reverse-altruism” or a preference for low opponent payoffs, and derive implications for behavior in conflicts where players are motivated by hate. We use these results to illuminate several policy issues, both historical and contemporary: the strategy of non-violent resistance during the American civil rights era, shifts in U.S. national security strategy following 9/11, and the justification for penalty enhancements for hate crimes.
Godsey on Prosecutors and Innocence
Mark Godsey (University of Cincinnati College of Law) has posted False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This article is a review of False Justice: Eight Myths that Convict the Innocent by Jim and Nancy Petro. But this article is also a memoir, in that I tell the story, from my own perspective as Director of the Ohio Innocence Project, of how I have watched Jim Petro go from prosecutor and elected Attorney General of Ohio to a leading champion of the wrongfully convicted across the nation. The article is also a commentary in that, along the way, I address what makes Jim Petro so different from many prosecutors in this country. In this respect, I discuss problems in our criminal justice system that unfortunately lead some prosecutors, in far too many instances, to contest post-conviction claims of innocence in ways that I believe are contrary to our profession’s ethical standards. With this article, I hold out Jim Petro as a national model - an example that all other prosecutors should strive to emulate.
February 6, 2012
Zarsky on Governmental Data Mining and its Alternatives
Governments face new and serious risks when striving to protect their citizens. Data mining has captured the imagination as a tool which can potentially close the intelligence gap constantly deepening between governments and their targets. The reaction to the data mining of personal information by governmental entities came to life in a flurry of reports, discussions, and academic papers. The general notion in these sources is that of fear and even awe. As this discourse unfolds, something is still missing. An important methodological step must be part of every one of these inquires mentioned above - the adequate consideration of alternatives. This article is devoted to bringing this step to the attention of academics and policymakers.
The article begins by explaining the term “data mining,” its unique traits, and the roles of humans and machines. It then maps out, with a very broad brush, the various concerns raised by these practices. Thereafter, it introduces four central alternative strategies to achieve the governmental objectives of security and law enforcement without engaging in extensive data mining and an additional strategy which applies some data mining while striving to minimize several concerns. The article sharpens the distinctions between the central alternatives to promote a full understanding of their advantages and shortcomings. Finally, the article briefly demonstrates how an analysis that takes alternative measures into account can be carried out in two contexts. First, it addresses a legal perspective, while considering the detriments of data mining and other alternatives as overreaching “searches.” Second, it tests the political process set in motion when contemplating these measures. This final analysis leads to an interesting conclusion: data mining (as opposed to other options) might indeed be disfavored by the public, but mandates the least scrutiny by courts. In addition, the majority’s aversion from the use of data mining might result from the fact that data mining refrains from shifting risk and costs to weaker groups.
Weisselberg on Selected Criminal Law Cases from the Supreme Court's 2010-2011 Term
Charles D. Weisselberg (University of California, Berkeley - School of Law) has posted Selected Criminal Law Cases in the United States Supreme Court and a Look Ahead (Court Review, Vol. 47, p. 52, 2011, UC Berkeley Public Law Research Paper No. 1983468) on SSRN. Here is the abstract:
This article reviews criminal law decisions from the U.S. Supreme Court's 2010-2011 Term, with a particular focus on those decisions of most interest to state court judges and practitioners.
"Raise the Crime Rate"
Christopher Glazek wrote this provocative piece at n + 1, which inter alia argues that published crime rates mask the shift of crimes into a growing prison population, discusses why the the prison population has increased, and advocates radical reform.
February 5, 2012
Top-Ten Recent SSRN Downloads
|1||281||How Law Protects Dignity
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011 [2nd last week]
|2||240||Turning the Corner on Mass Incarceration?
Georgetown University Law Center,
Date posted to database: December 15, 2011 [3rd last week]
|3||222||The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France
Brett Danaher, Michael D. Smith, Rahul Telang, Siwen Chen,
Wellesley College - Department of Economics, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management , Carnegie Mellon University - H. John Heinz III School of Public Policy and Management, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 22, 2012 [new to top ten]
|4||206||Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language
Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein,
Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 16, 2011
|5||188||Neuroscience, Normativity, and Retributivism
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, European University Institute,
Date posted to database: December 6, 2011
|6||184||Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms
Charles D. Weisselberg, Su Li,
University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society,
Date posted to database: January 11, 2012
|7||181||Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences
M. Marit Rehavi, Sonja B. Starr,
University of British Columbia, University of Michigan Law School,
Date posted to database: January 16, 2012
|8||168||Revisiting a Foreign Corrupt Practices Act Compliance Defense
Butler University College of Business,
Date posted to database: January 11, 2012 [10th last week]
|9||126||The Law and Economics of Fluctuating Criminal Tendencies
Murat C. Mungan,
Florida State University - College of Law,
Date posted to database: January 19, 2012 [new to top ten]
|10||117||Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial
Julia Grace Mirabella,
Boston University School of Law,
Date posted to database: January 8, 2012 [new to top ten]