CrimProf Blog

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

Saturday, June 15, 2013

Bibas on Bulk Misdemeanor Justice

Bibas stephanosStephanos Bibas (University of Pennsylvania Law School) has posted Bulk Misdemeanor Justice (Southern California Law Review Postscript, Vol. 85, p. 101, 2013) on SSRN. Here is the abstract:

This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand wholesale reforms. Systemic change, I argue, is a worthwhile ideal even though it is unlikely to happen any time soon.

June 15, 2013 | Permalink | Comments (0)

Shen on Neuroscience and Bodily Injury

Shen francisFrancis X. Shen (University of Minnesota Law School) has posted Mind, Body, and the Criminal Law (Minnesota Law Review, Vol. 97, No. 2036-2175, 2013) on SSRN. Here is the abstract:

Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” This Article explores the content of the bodily injury construct through the lens of cognitive neuroscience, which poses new challenges to traditional mind-body distinctions. Combining a review of bodily injury definitions in criminal assault statutes and a series of empirical analyses, the analysis finds that: (1) jury-eligible lay people exhibit much confusion and disagreement about what constitutes a “bodily” injury; (2) jury instructions, with different definitions of the term, significantly affect how lay people determine bodily injury; and (3) neuroscientific evidence, if unchecked by a limiting jury instruction, will likely expand the bodily injury concept to include injuries that have traditionally been seen as non-physical. Taken together, the findings in this Article suggest that — if the criminal law were to recognize the biological and thus physical basis for mental injury — the limits of criminal liability for harms against the person might be increasingly contested as the distinctions between mind and body for purposes of criminal liability shift. To avoid this confusion, and the potential injustices that might emerge, the Article argues that legislatures should carefully revisit bodily injury definitions. The Article provides a series of options that legislatures can employ.

June 15, 2013 | Permalink | Comments (0)

Carrera, Guild & Hernanz on Europe's Arrest Warrant System

Sergio Carrera Elspeth Guild and Nicholas Hernanz (Centre for European Policy Studies , Radboud University Nijmegen - Faculty of Law and Centre for European Policy Studies (CEPS)) has posted Europe's Most Wanted? Recalibrating Trust in the European Arrest Warrant System (CEPS Special Report No. 76/March 2013) on SSRN. Here is the abstract:

This paper assesses the uses and misuses in the application of the European Arrest Warrant (EAW) system in the EU by examining the main quantitative results of this new extradition system achieved between 2005 and 2011. It argues that the next generation of the EU’s criminal justice cooperation and the EAW need to recognise and acknowledge that the mutual trust premise upon which the European system has been built so far is no longer viable without devising new structures and evaluation mechanisms for EU policy stakeholders. These should allow for the recalibration of mutual trust and mistrust in EU justice systems in light of the experiences of the criminal justice actors and practitioners having a stake in putting the EAW into daily effect. Such a ‘bottom-up approach’ should be backed up with the best impartial and objective evaluation, an improved system of statistical collection and an independent qualitative assessment of its implementation.

June 15, 2013 | Permalink | Comments (0)

Friday, June 14, 2013

Lee on De Facto Immigration Courts

Lee stephenStephen Lee (University of California, Irvine School of Law) has posted De Facto Immigration Courts (California Law Review, Vol. 101, No. 3, 2013) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the Supreme Court recognized a noncitizen defendant’s right to be informed by her attorney of any downstream immigration consequences that might flow from a proposed plea deal. In establishing this important right, the Court recognized a stark reality: that in many instances, a noncitizen’s only meaningful opportunity to avoid removal arises in upstream criminal proceedings. This Article traces out the implications of a world where criminal courts (especially at the state level) operate as de facto immigration courts. This Article aims to do three things. First, it shows that local prosecutors operate as gatekeepers in the world of de facto immigration courts, a point the Court recognizes in Padilla and other cases. Second, it explains that prosecutors can exercise their gatekeeping power to deviate from or completely unsettle federal immigration enforcement priorities, a quality that distinguishes them from other local actors participating in immigration enforcement. Third and finally, the Article explores how Congress and the Court might accommodate this nascent reality.

June 14, 2013 | Permalink | Comments (0)

Bibas on Lacey on The Machinery of Criminal Justice

Stephanos Bibas (University of Pennsylvania Law School) has posted Criminal (In)Justice and Democracy in America (Harvard Law Review Forum, Vol. 122, p. 134, 2013) on SSRN. Here is the abstract:

This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice(Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of emotion and retribution in criminal justice. A consideration of the recent outcry over a gang-rape-murder in India highlights the shortcomings of her clinical, therapeutic, overly professionalized approach to criminal justice.

June 14, 2013 | Permalink | Comments (0)

Jacobs on Juvenile Criminal Record Confidentiality

Jacobs jamesJames Jacobs (New York University School of Law) has posted Juvenile Criminal Record Confidentiality (in David Tanenhaus & Franklin Zimring, eds., Choosing The Future of Criminal Justice (NYU Press 2014)) on SSRN. Here is the abstract:

Confidentiality of the juvenile's criminality and contacts wit the criminal justice system was central to the raison d'etre of the juvenile court. Consequently, juvenile court personnel and their legislative allies limited the disclosure of juvenile respondents' identities, criminal conduct and court processing. Nevertheless, to do its work, the court collected and shared a great deal of information. Even more information was purposefully and/or inadvertently disclosed by police departments. After the Gault decision, the commitment to confidentiality waned. By the 1980s, emphasis on government transparency and protecting society significantly undermined the policy and practice of juvenile justice system confidentiality. Without that commitment, the juvenile court and juvenile justice are very much weakened.

June 14, 2013 | Permalink | Comments (0)

Thursday, June 13, 2013

Spencer & Petersilia on California Victims' Rights in a Post-Realignment World

Jessica Spencer and Joan Petersilia (Stanford Law School and Stanford University) have posted Voices from the Field: California Victims’ Rights in A Post-Realignment World (Federal Sentencing Reporter, Vol. 25, No. 4, 2013) on SSRN. Here is the abstract:

On October 2, 2011, Assembly Bill 109, the 2011 Public Safety Realignment, went into effect and comprehensively changed the way California manages its criminal justice system. AB 109 shifted the primary responsibility for managing non-serious, non-sexual, non-violent offenses to the counties, meaning that thousands of offenders are now serving their time in county jail rather than state prison. Nearly every county and state level criminal justice agency was involved in the design and implementation of Realignment, in order to ensure that every need was met. Victims, however, were not at the table. 

This article attempts to bring victim service providers back into the conversation surrounding Realignment. We conducted interviews with victim service providers on the ground to find out how Realignment has affected their jobs, and we got two resounding answers.

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June 13, 2013 | Permalink | Comments (0)

Saks et al. on the Impact of Neuroimages in Capital Sentencing

Michael J. Saks N. J. Schweitzer Eyal Aharoni and Kent Kiehl (Arizona State University (ASU) - Sandra Day O'Connor College of Law , Arizona State University , Department of Psychology and University of New Mexico) have posted The Impact of Neuroimages in the Sentencing Phase of Capital Trials (Forthcoming, Journal of Empirical Legal Studies) on SSRN. Here is the abstract:

Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials. 

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June 13, 2013 | Permalink | Comments (0)

Opinion rejecting per se reversal when judge participates in plea bargaining

Justice Ginsburg delivered the opinion for the Court in United States v. Davila. Justice Scalia, joined by Justice Thomas, concurred in part and concurred in the judgment.

June 13, 2013 | Permalink | Comments (0)

Wednesday, June 12, 2013

Armstrong on Lippke on the Ethics of Plea Bargaining

Sarah Armstrong (Glasgow University) has posted Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of Plea Bargaining on SSRN. Here is the abstract:

Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analyzed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice.

June 12, 2013 | Permalink | Comments (0)

Dubber on the MPC, Legal Process, and the Alegitimacy of American Penality

Dubber markusMarkus D. Dubber (University of Toronto - Faculty of Law) has posted The Model Penal Code, Legal Process, and the Alegitimacy of American Penality on SSRN. Here is the abstract:

The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely because it is not foundational.

In this essay, I try to capture the significance of the Model Penal Code — or to call it by its full name, the Model Penal and Correctional Code — by explaining why it is not foundational.

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June 12, 2013 | Permalink | Comments (0)

Tuesday, June 11, 2013

Findley on Judicial Gatekeeping of Suspect Evidence

Findley keithKeith A. Findley (University of Wisconsin Law School) has posted Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence (Georgia Law Review, Vol. 47, No. 723, 2013) on SSRN. Here is the abstract:

The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories” — a few types of evidence (eyewitness identifications, confessions, forensic science, and snitch testimony) that are both recurring features of wrongful convictions and not otherwise susceptible to correction through traditional trial mechanisms and that, therefore, can and should be subjected to heightened scrutiny for reliability under the Due Process Clause. 

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June 11, 2013 | Permalink | Comments (0)

Chemerinsky on Gideon

Cherinsky erwinErwin Chemerinsky (University of California, Irvine School of Law) has posted Lessons from Gideon (Yale Law Journal, Vol. 122, 2013, Forthcoming) on SSRN. Here is the abstract:

Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding.

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June 11, 2013 | Permalink | Comments (0)

Adelman on Mass Incarceration and the Sentencing Commission

Lynn Adelman (U.S. District Court - Eastern District of WI) has posted What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration (Michigan Journal of Race & Law, Forthcoming) on SSRN. Here is the abstract:

The United States presently incarcerates about 2.3 million people. We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners. Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

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June 11, 2013 | Permalink | Comments (0)

Monday, June 10, 2013

Bibas on Shrinking Gideon and Expanding Alternatives to Lawyers

Bibas stephanosStephanos Bibas (University of Pennsylvania Law School) has posted Shrinking Gideon and Expanding Alternatives to Lawyers (Washington and Lee Law Review, Vol. 70, p. 1287, 2013) on SSRN. Here is the abstract:

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideonat 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for the middle class, let alone the poor.

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June 10, 2013 | Permalink | Comments (0)

Leonard & Dieter on Unconvicted Conduct in Federal Sentencing

Gerald Leonard and Christine Dieter (Boston University School of Law and Boston University) have posted Punishment Without Conviction: Controlling The Use of Unconvicted Conduct In Federal Sentencing (Berkeley Journal of Criminal Law 17:2 Fall 2012) on SSRN. Here is the abstract:

Federal sentencing law is widely applied to punish offenders not only for the offenses of which they have been convicted, but also, in the same proceeding, for offenses of which they have not been convicted. Unlike many scholars, we accept that federal courts can, in the right circumstances, legitimately enhance sentences for facts and conduct found at sentencing, even when those facts and conduct constitute uncharged offenses or even charges on which the defendant actually won an acquittal. But we argue that in identifiable cases, the use of such sentencing facts does cross the line from appropriate contextualization of the offense of conviction to punishment for a separate offense of which the defendant has never been convicted. We demonstrate that crossing this line contravenes the Sentencing Reform Act, the Federal Sentencing Guidelines, and the Constitution. We then offer a principle and a mode of analysis for ensuring that courts punish only for offenses of conviction, even as they do substantial fact-finding at sentencing. We examine cases of federal sentencing for second-degree murder to explain how this principle works and then explain the benefits and challenges of applying the principle more generally.

June 10, 2013 | Permalink | Comments (0)

Opinion finding ex post facto clause violation in change of discretionary federal sentencing guidelines

Justice Kagan delivered the opinion for the Court in Peugh v. United States. Justice Thomas dissented, joined by the Chief Justice and Justices Scalia and Alito. Justice Alito dissented in an opinion joined by Justice Scalia.

June 10, 2013 | Permalink | Comments (0)

Sunday, June 9, 2013

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 408 Knives and the Second Amendment 
David B. KopelJoseph OlsonClayton E. Cramer
Independence Institute, College of Western Idaho, Hamline University - School of Law, 
Date posted to database: March 24, 2013 [2nd last week]
2 375 Background Checks and Murder Rates 
Clayton E. Cramer
College of Western Idaho, 
Date posted to database: April 12, 2013 [3rd last week]
3 216 Antitrust Corporate Governance and Compliance 
Rosa M. Abrantes-MetzD. Daniel Sokol
Global Economics Group, LLC, University of Florida - Levin College of Law, 
Date posted to database: April 10, 2013 [5th last week]
4 212 Discovery and Darkness: The Information Deficit in Criminal Disputes 
Ion Meyn
University of Wisconsin Law School, 
Date posted to database: May 9, 2013 [6th last week]
5 176 Federal Public Defense in an Age of Inquisition 
David Patton
Federal Defenders of New York, 
Date posted to database: May 2, 2013 [7th last week]
6 152 Effective Plea Bargaining Counsel 
Jenny Roberts
American University, Washington College of Law, 
Date posted to database: April 20, 2013 [8th last week]
7 112 Crime in Cyberspace: Offenders and the Role of Organized Crime Groups 
Peter GraboskyRoderic Broadhurst,Brigitte BouhoursMamoun Alazab,Steve ChonChen Da
Australian National University (ANU), Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University, Australian National University (ANU), Australian National University Cybercrime Observatory (ANU) - Regulatory Institutions Network (RegNet) , Australian National University (ANU) - School of Regulation, Justice and Diplomacy, 
Date posted to database: February 4, 2013 [new to top ten]
8 105 Rape Law in India: Problems in Prosecution Due to Loopholes in the Law 
Siddharth Mehta
Amity Law School,Delhi(IP University), 
Date posted to database: April 15, 2013 [new to top ten]
9 105 Transplant Tourism: The Ethics and Regulation of International Markets for Organs 
I. Glenn Cohen
Harvard Law School, 
Date posted to database: April 22, 2013 [new to top ten]
10 103 Implicit Racial Bias in Public Defender Triage 
L. Song RichardsonPhillip Atiba Goff
University of Iowa - College of Law, UCLA Department of Psychology, 
Date posted to database: May 3, 2013 [new to top ten]


June 9, 2013 | Permalink | Comments (0)