CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, February 18, 2012

Brettschneider on Legitimate State Punishment

Corey L. Brettschneider (Brown University - Department of Political Science) has posted Rights within the Social Contract: Rousseau on Punishment (LAW AS PUNISHMENT/LAW AS REGULATION, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, eds., Stanford University Press, 2011) on SSRN. Here is the abstract:

A great deal of contemporary work on justifications of punishment has been pursued within the field of moral philosophy. Such inquires are typically concerned with the rightness or wrongness of punishment from the perspective of utilitarian or retributive moral theory, considered in isolation from the political question of legitimacy. In contrast to a broadly moral theory of punishment, a theory of punishment within the confines of political morality should address not only how those guilty of crimes deserve to be treated, but also the narrower question of which punishments the state rightly metes out. In this essay, I argue that we should turn to Rousseau as a guide in developing a theory of justifiable state punishment. Rousseau’s theory of the social contract, I suggest, demonstrates how a theory of political legitimacy might frame an account of punishment. Furthermore, I contend that Rousseau’s contractualism, while flawed, points the way forward for contemporary accounts of legitimate state punishment.

February 18, 2012 | Permalink | Comments (0)

Coleman & Rothstein on Surrogate Witnesses and the Confrontation Clause

Ronald J. Coleman and Paul F. Rothstein (Georgetown University Law Center and Georgetown University Law Center) have posted Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause? on SSRN. Here is the abstract:

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.

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February 18, 2012 | Permalink | Comments (0)

Friday, February 17, 2012

Wilkes on Habeas in Georgia, 1733-1865

Wilkes donaldDonald E., Jr. Wilkes (University of Georgia Law School) has posted From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865 (Georgia Law Review, Vol. 45, pp. 1015-1072, 2011) on SSRN. Here is the abstract:

This Article will provide, for the first time, a comprehensive account of the writ of habeas corpus in Georgia not primarily focused on use of the writ as a postconviction remedy. The Article covers the 132-year period stretching from 1733, when the Georgia colony was established, to 1865, when the Confederate States of America was finally defeated and the American Civil War came to a close.

February 17, 2012 | Permalink | Comments (0)

Pfaff on Growth in Prison Populations

Pfaff johnJohn F. Pfaff (Fordham University - School of Law) has posted The Causes of Growth in Prison Admissions and Populations on SSRN. Here is the abstract:

The explosive growth in the US prison population is well documented, but its causes are poorly understood. In this paper I exploit previously-unused data to define precisely where the growth is occurring. In short, the growth in prison populations has been driven almost entirely by increases in felony filings per arrest. All other possible sites of growth — arrests, admissions per filing, convictions per filings and ad-missions per conviction, and even (perhaps most surprisingly) time served per admission — have barely changed over the past four decades. But the growth in filings tracks that of ad-missions almost perfectly. This paper demonstrates the importance of felony filings and considers some of the possible explanations for their growth.

February 17, 2012 | Permalink | Comments (0)

Plummer & Syed on "Shifted Science" and Post-Conviction Relief

Caitlin M. Plummer and Imran J. Syed (affiliation not provided to SSRN and Michigan Innocence Clinic) have posted 'Shifted Science' and Post-Conviction Relief (Stanford Journal of Civil Rights and Civil Liberties, Vol. 8, Forthcoming) on SSRN. Here is the abstract:

Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person’s right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice.

February 17, 2012 | Permalink | Comments (0)

Thursday, February 16, 2012

Nadler on Character, Moral Emotion, and Blame

Nadler janiceJanice Nadler (Northwestern University School of Law) has posted Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame (Law & Contemporary Problems, Forthcoming) on SSRN. Here is the abstract:

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor’s mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our emotional reactions are not only a product of the act and the outcome, but also a product of inferences about the general virtuousness of the person who performed the act that caused the harm. Remarkably, this result holds true even though the mental state of the actor was clearly specified.

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February 16, 2012 | Permalink | Comments (0)

Herrin on Police-Created Exigencies

Grant T. Herrin has posted Fear and Loathing in the American Home: Police-Created Exigency Doctrine No Longer a Check on Police Power Under Fourth Amendment on SSRN. Here is the abstract:

The Court’s decision in Kentucky v. King, 131 S. Ct. 1849, was many years in the making, necessitated by a need to resolve an increasing discrepancy between various state high courts and the U.S. Courts of Appeals. Specifically, the courts have disagreed in their application of the “police-created exigency doctrine” as an override of the exigent circumstances exceptions to warrantless searches and seizures. While the Supreme Court’s holding in King that “warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through actual or threatened Fourth Amendment violation” seems at first comforting and even logical, its implications are anything but reassuring. Indeed, the authority of the police (now given more freedom from the Fourth Amendment) conjures images of Nazi storm troopers breaking down the doors of downtrodden citizens of the police-state. In fact, the Court’s extension of discretion to individual police officers contracts the authority, and even the necessity, of a neutral magistrate to the extent that warrants are not even required if the officer so reasons at the time of his entry. That is not an issue as long as the police acted “reasonably” up to the point they broke down your door.

February 16, 2012 | Permalink | Comments (0)

McIntyre & Baradaran on Race, Prediction, and Pretrial Detention

Baradaran shimaFrank McIntyre and Shima Baradaran (pictured) (Rutgers Business School Newark and New Brunswick and Brigham Young University - J. Reuben Clark Law School) have posted Race, Prediction, and Pretrial Detention on SSRN. Here is the abstract:

We use a large, nationally representative and detailed database on criminal defendants to predict the likelihood that the defendant will commit a crime while on bail or other forms of pretrial release. We use this likelihood to estimate an empirical model of judicial behavior. We find that large and persistent gaps in pretrial detention across race is completely explainable as a form of statistical discrimination due to the higher probability a black defendant will commit a pretrial violent crime. The results are robust to a variety of possible statistical biases, including selection bias and misspecification of functional form. We also consider more nuanced models of discrimination and find evidence that judges may be more sensitive to violent crimes committed by white defendants than black defendants.

February 16, 2012 | Permalink | Comments (1)

Wednesday, February 15, 2012

Rothstein on Schwartz's Foundation Theory of Evidence

Rothstein paulPaul F. Rothstein (Georgetown University Law Center) has posted Response Essay: Some Observations on Professor Schwartz's 'Foundation' Theory of Evidence on SSRN. Here is the abstract:

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges' rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.

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February 15, 2012 | Permalink | Comments (0)

Gelbach & Bushway on Racial Discrimination in Bail Setting

Jonah B. Gelbach and Shawn D. Bushway have posted Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model on SSRN. Here is the abstract:

Black defendants are assigned greater bail levels than whites accused of similar offenses. To investigate whether this difference can be explained without taste-based discrimination, we construct a simple model of optimal bail setting. We develop a two-step econometric method that allows us to estimate the model while holding constant defendant heterogeneity that judges can observe, even when we do not. In return for making the behavioral model’s relatively weak parametric assumptions, we are able to allow an arbitrary conditional distribution of such heterogeneity. We estimate the model using publicly available administrative data on felony defendants for five counties in 2000 and 2002. Point estimates suggest discriminatory bail levels in at least one, and possibly two, of these counties, where estimates suggest that judges set bail as if the value of blacks’ lost freedom is less than two-thirds the value of whites’ lost freedom. This result translates into a substantial black-white gap in the value of lost freedom — at least $64 per day.

February 15, 2012 | Permalink | Comments (1)

Hamilton on Law and Paraphilias

Hamilton melissaMelissa Hamilton (University of South Carolina - School of Law) has posted The Law and Paraphilias: Sex Crimes (Re)Constructed as Mental Disorders on SSRN. Here is the abstract:

The contemporary policy perspective underlying criminal and civil laws regarding sex crimes is based on a presumption of disease. The law has turned to psychiatry for evidence that sexual offenders suffer from mental disorders that can explain their offending. Thus, mental health professionals regularly testify as experts in legal cases about the existence of paraphilias. Paraphilias generally are considered mental disorders of sexual deviance that are dysfunctional, such as pedophilia, sexual sadism, exhibitionism, frotteurism, and the more amorphous category of “paraphilia not otherwise specified.” In the law, paraphilia diagnoses can have significant consequences to the liberty and privacy interests of the individuals being evaluated, particularly in relation to the application of sexual predator laws and in sentencing and parole decisions. Unfortunately, for a variety of reasons, mental health experts are commonly assessing paraphilias based almost exclusively on the individual’s history of sexual offenses. As a result, sex crimes have become conflated with diagnoses of paraphilias, and vice versa. This article examines the social, logical, and scientific bases for the diagnostic validity of paraphilias and questions whether they can legitimately assist legal decisions to justify incapacitation.

February 15, 2012 | Permalink | Comments (0)

Schroeder on Federal Habeas for Violation of Prophylactic Rules

William A. Schroeder has posted Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell (Kansas Law Review, Vol. 60, p. 231, 2011) on SSRN. Here is the abstract:

Prophylactic rules are judge-made rules promulgated by the Supreme Court to help protect underlying Constitutional rights when the Court believes that the right cannot otherwise be adequately protected. It has been said that a rule is prophylactic only when it can be violated without violating the Constitution. Over the course of the last fifty years, prophylactic rules of criminal procedure-and claims based on alleged violations of these rules- have proliferated. At the same time habeas petitions in the federal courts have also proliferated.

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February 15, 2012 | Permalink | Comments (0)

Tuesday, February 14, 2012

Tchividjian & Vieth on Investigating Child Maltreatment Sanctioned or Condoned by a Religious Leader

Tchividjian basyleBasyle J. Tchividjian (pictured) and Victor Vieth (Liberty University School of Law and National Child Protection Training Center) have posted When the Child Abuser Has a Bible: Investigating Child Maltreatment Sanctioned or Condoned by a Religious Leader (Center Piece: Official Newsletter of the National Child Protection Training Center, 2011) on SSRN. Here is the abstract:

In many cases of child sexual and physical abuse, perpetrators use religious or spiritual themes to justify their abuse of a child. Although no known religion in modern culture suggests that sexual abuse is condoned or taught as part of its tenets, some church leaders engage in conduct suggesting the child is equally, if not more to blame than the perpetrator, while also urging immediate reconciliation between the perpetrator and victim. In more than one case, pastors have asked children to confess their own “sins” in being sexually abused and have even required children to “confess” in front of an entire congregation. Even more frequently, pastors and other church workers mandated to report instances of child maltreatment simply ignore the law and take concerted efforts to keep the matter “in house.”

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February 14, 2012 | Permalink | Comments (0)

Monday, February 13, 2012

Robinson on The Practical Benefits of Examining the Interrelation Among Criminal Law Doctrines

Paul H. Robinson (University of Pennsylvania Law School)

Paul H. Robinson (University of Pennsylvania Law School) has posted Four Distinctions that Glanville Williams Did Not Make: The Practical Benefits of Examining the Interrelation Among Criminal Law Doctrines on SSRN.  Here is the abstract: 

While Glanville Williams was a pioneer in his time, he remained quite mainstream when it came to the framework for organizing criminal law doctrines. His books were influential and he could have helped reshaped that framework but was content to leave it as essentially that which evolved at common law, even though many improvements could have be made. For example, he was well aware of the justification-excuse distinction but rejected it as an organizing principle, not because he did not see the distinction as rational, but because he did not see it as having practical value.

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February 13, 2012 | Permalink | Comments (0)

Dancig-Rosenberg & Pugach on The Role of Domestic Violence Victims in Sentencing

Hadar Dancig-Rosenberg- Bar-Ilan University

Hadar Dancig-Rosenberg (pictured) and Dana Pugach (Bar-Ilan University - Faculty of Law and Ono Academic College Faculty of Law) have posted Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing (Michigan Journal of Gender & Law, Vol. 18, No. 2, 2012) on SSRN.  Here is the abstract: 

Should the victim of a domestic crime be entitled to express her views and concerns when her violent spouse is being sentenced, even if her request is for leniency? This may well be the most difficult question for supporters of victims' rights, who are accustomed to relate to victims who ask for severe sentences for their assailants. This question is affected by the complicated conflicting interests at the sentencing stage. The harm suffered by the victim of an offense is pitched against the personal profile of the assailant and the public interest. 

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February 13, 2012 | Permalink | Comments (0)

Brette on Using Theories of Intangible Property to Target Honest Services Fraud After Skilling

Brette M. Tannenbaum has posted Reframing the Right: Using Theories of Intangible Property to Target Honest Services Fraud After Skilling on SSRN.  Here is the abstract: 

Few federal criminal statutes have been as widely charged --- and widely criticized --- as the honest services statute, 18 U.S.C. § 1346. Primarily, this is because federal prosecutors have used the statute to charge corrupt officials with mail or wire fraud for denying citizens their intangible right to the impartial services of their agents and officials, regardless of whether those citizens suffered any financial or proprietary loss --- an element typically required under the traditional mail and wire fraud statutes. Recently, in Skilling v. United States, the Supreme Court dealt a blow to the honest services theory when it interpreted § 1346 to reach only bribery or kickback schemes. Scholars and commentators predict the decision will mark the end of federal prosecutions for more inchoate forms of fraud, such as undisclosed self-dealing and hidden conflicts of interest. Fearing as much, members of Congress have proposed legislation to criminalize undisclosed self-dealing expressly and thereby retain the full anti-corruption enforcement power of the mail and wire fraud statutes. In response, this Note argues that initial reactions to Skilling have overstated the extent to which federal prosecutors are now hindered in their ability to prosecute honest services misconduct. Just as they have done for decades, prosecutors can and should continue to target honest services misconduct using the traditional mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, by reframing the victim’s right as an intangible property right. This Note provides a framework for how prosecutors can do so while largely replicating the sweep and targets of pre-Skilling § 1346 honest services prosecutions and concludes that such an exercise of prosecutorial discretion is both appropriate and desirable.

February 13, 2012 | Permalink | Comments (0)

Justice Breyer Robbed by Intruder with Machete (Kolber)

There aren't a lot of data points, but U.S. Supreme Court justices seem to be the victims of violent or assaultive crimes at a surprisingly high rate.  A robbery at Justice Breyer's vacation home on Nevis last week will likely invite speculation about whether such experiences have any effect on justices' views on crime and punishment.


February 13, 2012 | Permalink | Comments (0)

Sunday, February 12, 2012

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 364 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 [6th last week]
2 299 How Law Protects Dignity
Jeremy Waldron,
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011 [1st last week]
3 254 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 [7th last week]
4 254 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 [3rd last week]
5 243 Turning the Corner on Mass Incarceration?
David Cole,
Georgetown University Law Center,
Date posted to database: December 15, 2011 [2nd last week] 
6 208 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 [4th last week]
7 198 Revisiting a Foreign Corrupt Practices Act Compliance Defense
Mike Koehler,
Butler University College of Business,
Date posted to database: January 11, 2012 [8th last week]
8 150 False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary
Mark Godsey,
University of Cincinnati College of Law,
Date posted to database: January 12, 2012 [new to top ten]
9 124 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 [10th last week]
10 153 The Law and Economics of Fluctuating Criminal Tendencies
Murat C. Mungan,
Florida State University - College of Law,
Date posted to database: January 19, 2012 [9th last week]

February 12, 2012 | Permalink | Comments (0)

Mungan on The Law and Economics of Fluctuating Criminal Tendencies

Murat Mungan- FSU

Murat C. Mungan (Florida State University - College of Law) has posted The Law and Economics of Fluctuating Criminal Tendencies (FSU College of Law) on SSRN.  Here is the abstract: 

Law and economics is one of the most successful legal disciplines, and it is used frequently to study various legal issues, doctrines, and policies. Its application to criminal law has received great attention by economists as well as lawyers. But, economic analyses of criminal law are often criticized for employing unrealistic assumptions and performing poorly in providing rationales for various criminal law doctrines. In light of these criticisms, one may be tempted to jump to the conclusion that law and economics in particular, and consequentialist approaches in general, are inappropriate for studying criminal law and procedure. 

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February 12, 2012 | Permalink | Comments (0)

Polinsky and Shavell on The Optimal Use of Fines and Imprisonment

A. Mitchell Polinsky- Stanford Law School

A. Mitchell Polinsky (pictured) and Steven Shavell (Stanford Law School and Harvard Law School) have posted The Optimal Use of Fines and Imprisonment (NBER Working Paper No. w0932) on SSRN.  Here is the abstract: 

This paper examines the use of fines and imprisonment to deter individuals from engaging in harmful activities. These sanctions are analyzed separately as well as together, first for identical risk-neutral individuals and then for two groups of risk-neutral individuals who differ by wealth. When fines are used alone and individuals are identical, the optimal fine and probability of apprehension are such that there is some "underdeterrence." If individuals differ by wealth, then the optimal fine for the high wealth group exceeds the fine for the low wealth group. When imprisonment is used alone and individuals are identical, the optimal imprisonment term and probability may be such that there is either underdeterrence or overdeterrence. If individuals differ by wealth, the optimal imprisonment term for the high wealth group may be longer or shorter than the term for the low wealth group. When fines and imprisonment are used together, it is desirable to use the fine to its maximum feasible extent before possibly supplementing it with an imprisonment term. The effects of risk aversion on these results are also discussed.

February 12, 2012 | Permalink | Comments (0)