CrimProf Blog

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

Saturday, April 6, 2013

Alexander on Yaffe on Attempts

AlexanderLarry Alexander (University of San Diego School of Law) has posted Yaffe on Attempts (Legal Theory, 2014, Forthcoming) on SSRN. Here is the abstract:

Gideon Yaffe’s Attempts is a masterfully executed philosophical investigation of what it means to attempt something Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on, and be used to criticize, the law’s understanding of those crimes. Indeed, the book is rich in examples drawn from criminal cases and codes.

Continue reading

April 6, 2013 | Permalink | Comments (0)

Friday, April 5, 2013

Shemtob on Evolving Standards of Decency

Zachary Baron Shemtob has posted From Weems to Graham: The Curious Evolution of Evolving Standards of Decency (Criminal Justice Bulletin, 49, 3 (2013)) on SSRN. Here is the abstract: 

Since the 1958 case of Trop v. Dulles, the Supreme Court has held that grossly disproportionate punishments are cruel and unusual if they violate “the evolving standards of decency of a maturing society.” Traditionally, this was interpreted as prohibiting capital sentences for certain types of crimes and classes of offenders. In Graham v. Florida, the Court applied evolving standards to incarceration, banning the sentencing of juveniles who committed non-homicide crimes to life without parole.

This Article breaks the Court’s understanding of evolving standards of decency into distinct periods. In each period the justices encountered a host of novel problems that they attempted, and often failed, to resolve. I discuss some additional complications in the wake of Graham, and conclude that this case’s inconsistent holding demands a more objective measure for what constitutes evolving standards of decency.

April 5, 2013 | Permalink | Comments (0)

Tang on Shaming Bullies

Xiyin Tang has posted Shame: A Different Criminal Law Proposal for Bullies (Cleveland State Law Review, Forthcoming) on SSRN. Here is the abstract:

Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective. I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue. To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.

April 5, 2013 | Permalink | Comments (0)

Johnston on Sentencing and Mental Illness

Johnston e leaE. Lea Johnston (University of Florida - Fredric G. Levin College of Law) has posted Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness (Journal of Criminal Law and Criminology, Vol. 103, No. 1, 2013) on SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework.

Continue reading

April 5, 2013 | Permalink | Comments (0)

Garrett on Validating the Right to Counsel

Garrett brandonBrandon L. Garrett (University of Virginia School of Law) has posted Validating the Right to Counsel (Washington and Lee Law Review, Vol. 70, 2013) on SSRN. Here is the abstract:

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the constitutional test is shot through with a prejudice analysis, as well as with a set of strong substantive blinders: judgments that only certain types of failures by counsel will be regulated. Second, I ask whether the approach towards judging effectiveness of defense counsel could be “validated” by social science evidence, or at least be better informed by it. The bar has increasingly engaged with science and social science to provide improved standards for effective defense representation. In turn, social scientists might more closely study the effectiveness of defense lawyering across stages of the criminal process. Over time, this work may help to validate the right to counsel.

April 5, 2013 | Permalink | Comments (0)

Thursday, April 4, 2013

Wiseman on Pretrial Detention and the Right to Be Monitored

Wiseman samuelSamuel R. Wiseman (Florida State University - College of Law) has posted Pretrial Detention and the Right to Be Monitored (Forthcoming, The Yale Law Journal) on SSRN. Here is the abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions. 

Continue reading

April 4, 2013 | Permalink | Comments (0)

Chmura et al. on Selfishness as a Cause of Crime

Thorsten Chmura Christoph Engel and Markus Englerth (University of Bonn - Faculty of Law & Economics , Max Planck Institute for Research on Collective Goods and Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods) have posted Selfishness as a Potential Cause of Crime - A Prison Experiment on SSRN. Here is the abstract:

For a rational choice theorist, the absence of crime is more difficult to explain than its presence. Arguably, the expected value of criminal sanctions, i.e. the product of severity times certainty, is often below the expected benefit. We rely on a standard theory from behavioral economics, inequity aversion, to offer an explanation. This theory could also explain how imperfect criminal sanctions deter crime. The critical component of the theory is aversion against outperforming others. To test this theory, we exploit that it posits inequity aversion to be a personality trait. We can therefore test it in a very simple standard game. Inequity averse individuals give a fraction of their endowment to another anonymous, unendowed participant. We have prisoners play this game, and compare results to findings from a meta-study of more than 100 dictator games with non-prisoners. Surprisingly, results do not differ, not even if we only compare with other dictator games among close-knit groups. To exclude social proximity as an explanation, we retest prisoners on a second dictator game where the recipient is a charity. Prisoners give more, not less.

April 4, 2013 | Permalink | Comments (0)

Roth on DNA and the Jury

Roth_AndreaAndrea L. Roth (UC Berkeley School of Law) has posted Defying DNA: Rethinking the Role of the Jury in an Age of Scientific Proof of Innocence (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in guilt based on testimonial evidence, however weak, and even when contradicted by highly compelling evidence of innocence. In this Article, I argue that guilty verdicts defying DNA uniquely upend three assumptions underlying this deference doctrine: first, that juries are particularly good at determining credibility, and that the public believes this to be so; second, that reserving credibility as the province of the jury maintains systemic legitimacy by avoiding trial by machine; and third, that the reasonable doubt standard should focus on jurors’ actual belief in guilt rather than solely on the quantum and quality of proof. After explaining why the deference doctrine is unjustified, I propose changes to sufficiency law that would foreclose convictions in the face of evidence difficult to reconcile with guilt, while also ensuring that judges do not place science on an epistemic pedestal or intrude upon the jury’s role as voice and conscience of the community.

April 4, 2013 | Permalink | Comments (0)

Spapens on Decriminalization in the Netherlands

Toine Spapens (Tilburg University, Law School) has posted Decriminalization as Regulation: The Gambling and Cannabis Markets in the Netherlands on SSRN. Here is the abstract:

Decriminalizing an illegal market may be a useful strategy for reducing crime. It is also necessary, however, to have a clear understanding of the nature of the illegal market before undertaking such an endeavor. Experiences in the Netherlands show that decriminalizing illegal markets may indeed result in a substantial reduction of organized crime and other criminal activities, if the regulatory system is designed adequately. These experiences also show that such systems inherently lack flexibility and that criminals are usually quick to re-enter the market when unforeseen developments, particularly technical innovations and internationalization, create new illegal business opportunities.

April 4, 2013 | Permalink | Comments (0)

Wednesday, April 3, 2013

Richards on the Dangers of Surveillance

Richards neilNeil M. Richards (Washington University in Saint Louis - School of Law) has posted The Dangers of Surveillance (Harvard Law Review, 2013) on SSRN. Here is the abstract:

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our law and literature are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices, however, have made this problem more urgent. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no tangible harms, as the Supreme Court did recently in the case of Clapper v. Amnesty International. We need a better account of the dangers of surveillance.

Continue reading

April 3, 2013 | Permalink | Comments (0)

Mnookin & Kay on Confronting Science

Mnookin jenniferJennifer Mnookin (pictured) and David H. Kaye (University of California, Los Angeles (UCLA) - School of Law and Penn State Law) have posted Confronting Science: Expert Evidence and the Confrontation Clause (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois. 

Continue reading

April 3, 2013 | Permalink | Comments (0)

Tuesday, April 2, 2013

Kopel, Cramer & Olson on Knives and the Second Amendment

David B. Kopel Clayton E. Cramer and Joseph Olson (Independence Institute , College of Western Idaho and Hamline University - School of Law) has posted Knives and the Second Amendment (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Continue reading

April 2, 2013 | Permalink | Comments (0)

Hessick on the Limits of Child Pornography

Hessick carissaCarissa Byrne Hessick (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Limits of Child Pornography (Indiana Law Journal, Vol. 89, 2014) on SSRN. Here is the abstract:

Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, the Supreme Court has declared that those protections do not apply to child pornography. But the Court has failed to define child pornography. Providing a clear definition of the child pornography exception to the First Amendment has become increasingly important because recent years have seen a dramatic increase in the penalties associated with the creation, distribution, and possession of child pornography. 

Continue reading

April 2, 2013 | Permalink | Comments (0)

Bohrer on England and the Superior Orders Defence

Ziv Bohrer (Research Fellow, Sacher Institute, Hebrew University) has posted England and the Superior Orders Defence — Choosing the Middle Path (12(2) Oxford University Commonwealth Law Journal, Forthcoming) on SSRN. Here is the abstract:

The superior orders defence is a criminal law defence which allows soldiers to avoid conviction for illegal acts committed under orders. Recently the debate regarding this defence in England has intensified. Most jurists are divided between two positions: one asserts that this defence should be rejected and that English law does in fact reject it; the other argues that this defence is already the law, and further that it should continue to be so. The article argues that both sides are incorrect. It shows that current law is unclear and unjust and argues that this is due to a premise, held by both camps, regarding the need to regulate the issue based on a one-rule-fits-all policy. The article thus opines that, instead, a law should be adopted that differentiates between situation-specific categories; mainly between high-ranking and low-ranking subordinates, as well as between emergency and non-emergency situations.

April 2, 2013 | Permalink | Comments (0)

Monday, April 1, 2013

Natapoff on Gideon Skepticism

Natapoff alexandraAlexandra Natapoff (Loyola Law School Los Angeles) has posted Gideon Skepticism (Washington & Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, that generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. In response to these limitations, criminal scholarship offers a variety of skeptical counter-narratives about the ability of defense counsel to police the accuracy and fairness of their clients’ guilty pleas and sentences.

Continue reading

April 1, 2013 | Permalink | Comments (3)

Risinger & Risinger on Innocence Lawyers

D. Michael Risinger and Lesley C. Risinger (Seton Hall University School of Law and Seton Hall University School of Law) have posted The Emerging Role of Innocence Lawyer and the Need for Role-Differentiated Standards of Professional Conduct (Sarah Cooper (Ed.) Controversies in Innocence Cases in America, Forthcoming) on SSRN. Here is the abstract:

There is growing awareness that a new lawyer role is emerging in American criminal litigation, separating itself from the traditional criminal defense role in ways that raise new issues of professional responsibility and ethics, both for the new role and for the traditional role of the criminal defense attorney. For want of a better term we may style this new role “innocence lawyer.” This new role is, at least for now, largely limited to attempting to aid innocent persons already convicted of a crime. It differs from the normal role of a lawyer representing a criminal defendant, or even representing an ordinary convicted person post-trial.

Continue reading

April 1, 2013 | Permalink | Comments (0)

Opinion rejecting Ninth Circuit's approach to requests for counsel after waiver

The per curiam opinion in Marshall v. Rodgers concludes that the Ninth Circuit misapplied AEDPA by finding "clearly established Federal law" by examining Circuit precedent rather than Supreme Court authorities.

April 1, 2013 | Permalink | Comments (0)

Sunday, March 31, 2013

Top-Ten Recent SSRN Downloads

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

1 544 The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information 
David Pozen
Columbia Law School, 
Date posted to database: February 25, 2013 [2nd last week]
2 396 Foreword: Accounting for Technological Change 
Orin S. Kerr
George Washington University - Law School, 
Date posted to database: March 17, 2013 [new to top ten]
3 365 Federal Tax Crimes, 2013 
John A. TownsendJohn A. Townsend,
University of Houston School of Law, Townsend and Jones, LLP, 
Date posted to database: February 7, 2013 
4 182 Targeting and the Concept of Intent
Jens David Ohlin
Cornell University - School of Law, 
Date posted to database: February 12, 2013 
5 149 Policing the Firm 
D. Daniel Sokol
University of Florida - Levin College of Law, 
Date posted to database: March 9, 2013 [8th last week]
6 138 Colorado Capital Punishment: An Empirical Study 
Justin F. MarceauSam KaminWanda Foglia
University of Denver - Sturm College of Law, University of Denver Sturm College of Law, Rowan University, 
Date posted to database: January 31, 2013 
7 127 Overcharging 
Kyle Graham
Santa Clara University School of Law, 
Date posted to database: March 3, 2013 [new to top ten]
8 125 Does International Law Matter? 
Shima BaradaranMichael Findley,Daniel NielsonJ. C. Sharman
Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin, Brigham Young University, Griffith University, 
Date posted to database: February 8, 2013 
9 115 Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause 
Nicholas M. McLean
Yale University, 
Date posted to database: February 4, 2013 
10 113 Is Expert Evidence Really Different?
Frederick SchauerBarbara A. Spellman
University of Virginia School of Law, University of Virginia School of Law, 
Date posted to database: February 2, 2013 


March 31, 2013 | Permalink | Comments (0)