Friday, September 30, 2016
Catherine Fisk and L. Song Richardson (University of California, Irvine School of Law and University of California, Irvine School of Law) have posted Police Unions (George Washington Law Review, Vol. 85, Forthcoming) on SSRN. Here is the abstract:
Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years’ worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices.
Erin L. Sheley (University of Calgary Faculty of Law) has posted Victim Impact Statements and Expressive Punishment in the Age of Social Media (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.
Thursday, September 29, 2016
Jane Bailey (University of Ottawa - Common Law Section) has posted Canadian Legal Approaches to 'Cyberbullying' and Cyberviolence: An Overview on SSRN. Here is the abstract:
As early as the mid 1990s Canadian economic and social policy prioritized getting young people connected to what was then referred to as the "information super highway". By the late 1990s policy discourse had expanded to include the negative consequences of connectivity, including technologically facilitated harassment and violence, frequently referred to as "cyberbullying". This overview canvasses the legal responses that have followed at the national, provincial and territorial level, including human rights, education, civil, administrative/regulatory and criminal law responses. It concludes that the complexity of the issues, as well as the underlying equality issues that are often at stake, necessitate a multi-pronged approach more heavily weighted in favour of human rights and educational responses.
Stacia N. Stolzenberg, Kelly McWilliams and Thomas D. Lyon (Arizona State University (ASU) - School of Criminology & Criminal Justice, USC Gould School of Law and University of Southern California - Gould School of Law) have posted The Effects of the Hypothetical Putative Confession and Negatively-Valenced Yes/No Questions on Maltreated and Non-Maltreated Children's Disclosure of a Minor Transgression (Child Maltreatment (Forthcoming)) on SSRN. Here is the abstract:
This study examined the effects of the hypothetical putative confession (telling children “What if I said that [the suspect] told me everything that happened and he wants you to tell the truth?”) and negatively-valenced yes/no questions varying in their explicitness (“Did [toy] break?” vs. “Did something bad happen to the [toy]?”) on 206 4- to 9-year-old maltreated and non-maltreated children’s reports, half of whom had experienced toy breakage and had been admonished to keep the breakage a secret. The hypothetical putative confession increased the likelihood that children disclosed breakage without increasing false reports. The yes/no questions elicited additional disclosures of breakage but also some false reports. The less explicit questions (referencing “something bad”) were as effective in eliciting true reports as the questions explicitly referencing breakage. Pairing affirmative answers to the yes/no questions with recall questions asking for elaboration allowed for better discrimination between true and false reports. The results suggest promising avenues for interviewers seeking to increase true disclosures without increasing false reports.
Wednesday, September 28, 2016
This essay introduces the Ohio State Journal of Criminal Law Symposium, “Rape Law Revisited” (Vol. 13(2)). The Symposium features articles by Deborah Tuerkheimer, Kimberly Ferzan, David Bryden and Erica Madore, Bennett Capers, and Erin Collins. The symposium provides fresh perspectives on the issues surrounding sexual assault law and policy in today’s environment. The introduction notes that the current rape reform redux is not just a rehashing of old arguments, but boasts many new features. Today’s rape activism occurs in a moment when feminist ideas about coerced sex no longer exist at the margins—they govern and enjoy cultural acceptance, if not hegemony. Today’s reformist dialogue presumes that to condemn rape is to fight patriarchy itself, even as it elides other questions of sex, sexism, and the relationship between the two. Today’s rape activists seek to unsettle gender categories and be inclusive, even as they emphasize violence against women, in particular. Today’s rape reforms purport to intervene in hypermasculine sexual “culture,” but such intervention often consists of neoliberal, individualistic programs to prevent and punish sexual transgression. The introduction maps the contours of the rape issue’s new legal and political terrain and welcomes novel, or at least reformulated, perspectives and responses.
Keith A. Findley (University of Wisconsin Law School) has posted The Federal Role in the Innocence Movement in America (Journal of Contemporary Criminal Justice, Forthcoming) on SSRN. Here is the abstract:
Despite its small contribution to the ranks of the exonerated, and more broadly its relatively small share of all criminal cases, the federal government has played a distinct and important role in fostering and shaping the innocence movement. This article recounts the various ways in which the federal government has done so: through high-profile measures to recognize the reality of wrongful convictions, direct funding of innocence work, use of federal purse strings to shape criminal justice policy, setting an example through legislation on matters as diverse as access to post-conviction DNA testing and compensating the wrongly convicted, and leadership on issues such as the problems with the forensic sciences. The article concludes that, moving forward, the committed involvement of the federal government will remain important, especially in tackling such challenging problems as flawed forensic sciences and ensuring financial resources for innocence advocates.
Tuesday, September 27, 2016
Harry Oosterhuis and Arlie Loughnan (Maastricht University - Faculty of Arts and Social Sciences and University of Sydney - Faculty of Law) have posted Madness and Crime: Historical Perspectives on Forensic Psychiatry (International Journal of Law and Psychiatry, Vol. 37, No. 1, pp. 1-16, 2014) on SSRN. Here is the abstract:
The human sciences have been profoundly significant in the development of modern society and our current understanding of individuals and groups within them. The human sciences have a fascinating history – emerging first as products of the bourgeois society that arose in the era of the Enlightenment and the French Revolution, the human sciences developed in a dialectical relationship between humanization and disciplining, emancipation and coercion, assimilation and marginalization, and democratic rights and political control. In this article, we sketch the general historical background of forensic psychiatry and we discuss the main themes, points of interest and questions that emerge in the jurisdiction-specific contributions to the special edition of International Journal of Law and Psychiatry for which this article serves as Introduction. Recurring themes include: forensic psychiatry’s relation to legal traditions and schools; the relation between legal and medical ideals, theories, discourses and practices, including in particular differing and changing meanings of criminal insanity and non-responsibility.
Eliav Lieblich and Adam Shinar (Tel Aviv University - Buchmann Faculty of Law and Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) have posted The Case Against Police Militarization on SSRN. Here is the abstract:
The police and the military are different. That much is common ground. Yet, in recent times the police have become increasingly militarized. Unsurprisingly, many find this process alarming and disconcerting, and call for its reversal. However, while most of the objections to police militarization are framed in instrumental arguments, these are unable to capture the fundamental problem with militarization.
This Article remedies this shortcoming, by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, we argue that militarization undermines our basic understanding of the nature of the liberal state. Consequently, the real problem with police militarization is not that it brings about more violence or abuse of authority – though that may very well happen – but that it is based on a presumption of the citizen as a threat, while the liberal order is based on precisely the opposite presumption. A presumption of threat, we argue, assumes that citizens, usually from marginalized communities, pose a threat of such caliber that might require the use of extreme violence.
Rachel Harmon (University of Virginia School of Law) has posted Legal Control of the Police (in 6 Encyclopedia of Criminology and Criminal Justice 2898 (Gerben Bruinsma & David Weisburd eds., 2014)) on SSRN. Here is the abstract:
This encyclopedia entry provides an overview of law governing the police. As it notes, police ofﬁcers are granted immense authority by the state to impose harm. The problem of policing the police is how to regulate police ofﬁcers and departments to protect individual liberty and minimize the social costs the police impose while allowing them to do what is necessary to achieve the ends of policing: reducing fear, promoting civil order, and pursuing criminal justice. Constitutional law provides the most well-known check on police conduct. In addition, many other federal, state, and local statutes, constitutional provisions, court decisions, and administrative regulations also govern the police. Since federal constitutional law cannot alone ensure that the beneﬁts of policing are worth the harms it imposes, this participation by other government actors is essential to ensure adequate regulation of the police. However, the laws that presently govern the police are not tailored to balance the individual and societal interests at stake when police ofﬁcers act, they lack coordination, and responsibility for regulating the police is haphazardly allocated. As a result, the present array of laws that polices American policing does not promote law enforcement that is maximally effective and protective of civil rights.
Monday, September 26, 2016
This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct. While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.
The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime.
Samuel W. Buell (Duke University School of Law) has posted Capital Offenses: Business Crime and Punishment in America's Corporate Age (W.W. Norton & Co. (2016)) on SSRN. Here is the abstract:
Capital Offenses is a book-length treatment of the phenomenon of corporate crime in twenty-first century America. This book covers corporate criminal liability; substantive white collar crimes including fraud, obstruction of justice, and bribery; and the institutions of prosecution, defense, and adjudication that manage a legal field that has grown over the last several decades to become an industry — in addition to discussing the political economy of corporate crime. It is the first to provide a comprehensive treatment of this subject accessible to scholars, practitioners, students, and the public alike. The book’s argument is that every facet of the law and practice of corporate crime supplies evidence of Americans’ dependence on, inability to control, and deep ambivalence about our largest corporations and capital markets. These conditions ensure that criminal law will fail to deliver what is asked of it in this sphere. The parade of corporate “scandals” of the last 30 years, and the growing obsession with prosecution as an antidote, point to the need for a deep and sustained conversation about the corporate form, the scale of corporate enterprise, and the basic rules of the regulatory road — a transitional conversation that must be more ambitious and constructive than the continuing push for more white collar imprisonment. A small excerpt of the book’s introductory material is reprinted here, with permission of the publisher W.W. Norton & Co.
In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all “constitutionally unreasonable searches” that were done without a basis of probable cause. After several years of rising crime, the Court in Terry v. Ohio in effect “uncoupled…the two clauses of the Fourth Amendment” that regulated temporary detentions and searches by police. Under Terry, police are required to articulate specific and individualized indicia of suspicion, and those indicia must be salient enough to justify police action. The standards then and now do not tell a police officer doing modern police work either what indicia of, or how much, suspicion is enough to satisfy constitutional standards. This paper asks whether Terry’s move away from probable cause was original sin – whether the dilution and expansion of standards for an investigative stop – and the reduced costs for violating those standards – compromised or advanced the very law enforcement interests that animated the Terry opinion. Data on crimes, stops and arrests from 2004-14 from the Floyd litigation in New York are analyzed to address these questions. The rationale for suspicion in each police-citizen encounter is parsed into probable cause versus other, more subjective, bases of suspicion. The results show significant reductions in crime in neighborhoods as the number of probable cause stops increase, and the opposite holds true. Perhaps law enforcement interests are better served by a recalibration of Terry standards to move them closer to Mapp’s more exacting probable cause standard, a standard that better lends itself to institutional, judicial and political regulation. Secondary benefits for legitimacy and procedural justice may well follow. Penance for Terry’s original sin is within reach.
Nancy S. Marder (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge on SSRN. Here is the abstract:
In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.
Carlos Manuel Vazquez and Stephen I. Vladeck (Georgetown University Law Center and University of Texas School of Law) have posted The Constitutional Right to Collateral Post-Conviction Review (103 Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.
On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.
Lyn M. Gaudet and Gary E. Marchant (Arizona State University (ASU) - Center for Law, Science, and Innovation and Arizona State University - College of Law) have posted Under the Radar: Neuroimaging Evidence in the Criminal Courtroom (Drake Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases. In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual. As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code. Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe. Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted. This Article suggests what that reaction should be. It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine. Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.
Sunday, September 25, 2016
|1||495||Student Surveillance, Racial Inequalities, and Implicit Racial Bias
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 29 Aug 2016
|2||312||The Downstream Consequences of Misdemeanor Pretrial Detention
Paul S. Heaton, Sandra G. Maysonand Megan Stevenson
University of Pennsylvania Law School, University of Pennsylvania Law School and University of Pennsylvania Law School
Date posted to database: 17 Jul 2016
|3||213||What Lurks Below Beckles
Leah M Litman and Shakeer Rahman
University of California, Irvine School of Law and Independent
Date posted to database: 28 Aug 2016
|4||207||The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016
|5||204||A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian M. Murray
Temple University, Beasley School of Law
Date posted to database: 27 Jul 2016
|6||178||The Drug Court Paradigm
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016
|7||177||Profit-Driven Prosecution and the Competitive Bidding Process
Brigham Young University - J. Reuben Clark Law School
Date posted to database: 12 Aug 2016
Last Revised: 24 Sep 2016 [8th last week]
|8||176||Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016 [7th last week]
|9||160||The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez and Stephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016 [new to top ten]
|10||154||Moonlighting: The Private Employment of Off-Duty Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [9th last week]
Saturday, September 24, 2016
|1||279||Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016
|2||217||What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016
|3||194||When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016
|4||122||A Theory of Bribery
University of Virginia - School of Law
Date posted to database: 25 Aug 2016
|5||101||How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan and Peter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [7th last week]
|6||100||The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham University School of Law
Date posted to database: 18 Jul 2016 [8th last week]
|7||85||Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016 [9th last week]
|8||80||Why Lenity Has No Place in the Income Tax Laws
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [10th last week]
|9||76||Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules
University of Pennsylvania Law School
Date posted to database: 2 Sep 2016 [new to top ten]
|10||66||What Is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016 [new to top ten]
Friday, September 23, 2016
Clifford Shearing and Philip Stenning (Griffith Institute of Criminology and Griffith University) have posted Modern Private Security: Its Growth and Implications (In: Tonry, M. & Morris, N. Eds. Crime and Justice: An Annual Review of Research, Vol. 3. Chicago: University of Chicago Press, 193-245) on SSRN. Here is the abstract:
On the North American continent, in Europe and elsewhere, the dramatic growth in private security in the past several decades has reshaped the structure and function of modern policing. The development of private security has been facilitated by fundamental shifts in the nature of property relations. These changes have encouraged the development of a preventative mode of policing consistent with the principles and hopes of nineteenth-century police reformers, but they also suggest that we are moving in the direction of a new disciplinary society and raise fundamental questions with respect to sovereignty, justice, and individual liberty now almost entirely unrecognised. In particular, the legal institutions regarding private property operate to enhance the potential threat to individual liberty posed by the development of modern private security.
Arlie Loughnan and Tony Ward (University of Sydney - Faculty of Law and University of Hull - School of Law) have posted Emergent Authority and Expert Knowledge: Psychiatry and Criminal Responsibility in the UK (International Journal of Law and Psychiatry, Vol. 37, No. 1, pp. 25-36, 2014) on SSRN. Here is the abstract:
In the UK context, the rise of the discipline and practice of forensic psychiatry is intimately connected with the concurrent development of principles and practices relating to criminal responsibility. In this article, we seek to chart the relationship between psychiatry and the principles and practices of criminal responsibility in the UK over the early modern, modern and late modern periods. With a focus on claims about authority and expert knowledge around criminal responsibility, we suggest that these claims have been in a state of perpetual negotiation and that, as a result, claims to authority over and knowledge about criminal non-responsibility on the part of psychiatrists and psychiatry are most accurately understood as emergent and contingent. The apparent formalism of legal discourse has tended to conceal the extent to which legal policy has been preoccupied with maintaining the primacy of lay judgments in criminal processes of evaluation and adjudication. While this policy has been somewhat successful in the context of the trial – particularly the murder trial – it has been undermined by administrative procedures surrounding the trial, including those that substitute treatment for punishment without, or in spite of, a formal determination of criminal responsibility.