Friday, June 30, 2017
Arie Freiberg, Jason L Payne, Karen R. Gelb, Anthony Morgan and Toni Makkai (Monash University - Faculty of Law, Australian National University (ANU), Independent, Australian Institute of Criminology and Australian National University (ANU) ) have posted Drug and Specialist Courts Review: Final Report on SSRN. Here is the abstract:
This report is the product of a review commissioned by the Queensland Government to develop options for the reinstatement of a drug court in Queensland and the development of an overarching framework for Queensland’s specialist courts and court programs.
The report aimed to develop a comprehensive criminal justice model that identifies a range of interventions from the time of first contact with police, to arrest, summons and bail, conviction and sentence through to release on parole. It recognised that while drug courts are an important part of the criminal justice continuum, they are only one of a number of responses to the extensive problem of substance abuse-related crime.
Aditi Juneja has posted A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors (11 N.Y.U. J.L. & Liberty __ (2017)) on SSRN. Here is the abstract:
In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts. As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.” This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process. Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.
Shawn Kantor, Carl Kitchens and Steven Pawlowski (Florida State University, Florida State University - Department of Economics and Florida State University - Department of Economics, Students) have posted Civil Asset Forfeiture, Crime, and Police Incentives: Evidence from the Comprehensive Crime Control Act of 1984 on SSRN. Here is the abstract:
In 1984 the federal government passed the Comprehensive Crime Control Act. The act included language that permitted local law enforcement agencies to share up to 80 percent of the proceeds derived from civil asset forfeitures obtained via joint operations with federal authorities. This procedure became known as Equitable Sharing. In this paper, we investigate how the Equitable Sharing rule influenced crime and police incentives by taking advantage of pre-existing differences in state level civil forfeiture law and the timing of the CCCA. We find that after the CCCA, crime fell upwards of 13.4 percent. The introduction of Equitable Sharing also led police agencies to reallocate their effort towards the policing of drug crimes. We estimate that drug arrests increased by about 30 percent in the years after the enactment of the CCCA, indicating that it was profitable for police to reallocate their efforts. We also perform a variety of robustness tests to address possible changes in reporting and to further explore the reallocation of police effort.
John T. Parry (Lewis & Clark Law School) has posted States of Torture: Debating the Future of Coercive Interrogation (Tennessee Law Review, Vol. 84, No. 3, 2017) on SSRN. Here is the abstract:
Soon after the 9/11 attacks, some policymakers, commentators, and academics began to debate the propriety of coercive interrogation. Those debates were soon overtaken by the Bush administration's coercive interrogation policy. As the details of that policy became known, many participants in the torture debate understandably believed that they could claim the high ground and ensure that, going forward, the United States would be irrevocably an anti-torture nation. The election of Barack Obama appeared to buttress those efforts. And yet, today, more than 15 years since the 9/11 attacks and the beginning of the torture debate, coercive interrogation has become an issue on which apparently mainstream political figures can have opposing views. Instead of bipartisan condemnation, coercion is now a partisan political issue with broad public support. President Trump openly endorsed coercion in his successful campaign.
Thursday, June 29, 2017
John J. Donohue III, Abhay Aneja and Kyle D. Weber (Stanford Law School, Stanford University and Columbia Business School - Economics Department) have posted Right-To-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Controls Analysis on SSRN. Here is the abstract:
The 2005 report of the National Research Council (NRC) on Firearms and Violence recognized that violent crime was higher in the post-passage period (relative to national crime patterns) for states adopting right-to-carry (RTC) concealed handgun laws, but because of model dependence the panel was unable to identify the true causal effect of these laws from the then-existing panel data evidence. This study uses 14 additional years of panel data (through 2014) capturing an additional 11 RTC adoptions and new statistical techniques to see if more convincing and robust conclusions can emerge.
Our preferred panel data regression specification (the “DAW model”) and the Brennan Center (BC) model, as well as other statistical models by Lott and Mustard (LM) and Moody and Marvell (MM) that had previously been offered as evidence of crime-reducing RTC laws, now consistently generate estimates showing RTC laws increase overall violent crime and/or murder when run on the most complete data.
Refat Aljumily has posted Quantitative Criminology: An Evaluation of Sources of Crime Data (Global Journal of Human Social Science, Volume 16, Issue 4, Version 1.0, 2016) on SSRN. Here is the abstract:
Crime data is at the heart of quantitative criminology research in particular and social science research in general. In the past years, many sources of crime data have been proposed to understand, describe and explain crime and criminality, but never before have the majority of these sources been tested using a huge number of crimes and applying different multivariate methods. A large-scale analysis and comparison of various sources of crime data is crucial if current analytical methods are to be used effectively and if new and more powerful methods are to be developed. This article presents the results of a comparison of the four main sources of crime data commonly used in quantitative criminology, in order to determine the best data source that can tell the whole truth about the extent or the true level of crime occurring in a society. Based on the results of these tests, a more comprehensive approach to measure crime is proposed, which represents all categories of crime and covers the offences committed. The result of the analysis is empirically-based, objective, and replicable evidence which can be used in conjunction with existing literature on the quantitative methods in criminology.
Benjamin Davis (University of Toledo College of Law) has posted United or Untied: On Confronting Presidential Criminality in the Savage Wars of Peace (84 Tenn. L. Rev. ____ (2017)) on SSRN. Here is the abstract:
Hypothetical One: On her first day in office, invoking national security or some presidential power, a sitting president orders illegal surveillance of an American citizen in the United States based on information that came from torture ordered by that president and that same president orders a drone strike that kills that American citizen and another 100 American citizens and residents because the president hated that American citizen and did not care about anyone else in the line of her fire. That sitting president that same week goes on to cover up her actions in a manner that might be viewed as obstruction of justice.
Chris Jenks (Southern Methodist University - Dedman School of Law) has posted A Rose by Any Other Name: How the United States Charges Its Service Members for Violating the Laws of War (in MILITARY JUSTICE IN THE MODERN AGE, Cambridge, Cambridge University Press, 2016) on SSRN. Here is the abstract:
This chapter examines the US practice of not charging its service members with war crimes. The chapter briefly explains how the United States asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the varied meanings of the term ‘war crimes’ and the way in which the 1949 Geneva Conventions can provide a benchmark against which the elements of offences, and their punishments, can be compared. While the US practice fares adequately in this comparison, the argument for a pragmatic approach to charging over the expressive value of a war crime charge is rendered untenable as a result of the disparate manner in which the United States charges detainees when compared to its own service members.
Paul Dargue and Andrew Robson (Northumbria University - School of Law and Northumbria University - Newcastle Business School) have posted An Exploration of the Variables Predicting the Outcome of Murder and Rape Appeals Against Conviction in the England and Wales Court of Appeal (Criminal Division). on SSRN. Here is the abstract:
The England and Wales Court of Appeal (Criminal Division) has an important role within the criminal justice system. It hears all appeals against conviction from Crown Courts in England and Wales. As such, it hears appeals relating to the most serious criminal offences. Since 1995, the Court has operated the ‘unsafety test’ when determining whether to allow or to dismiss appeals against conviction. This paper presents the results of an empirical study of the operation of the unsafety test during a short period of the Court’s history. A total of 472 appeals against conviction for the offences of murder and rape, decided between 2006 and 2010, are included in the sample. Empirical Legal Studies (ELS) remains in its relative infancy in Britain. As such, the study is explorative in nature, in which a range of potential predictor variables have been analysed. Variables have been drawn in particular from behavioural/attitudinal and institutional models of judicial behaviour. The results suggest that there is only a limited association between the behavioural variables analysed and the outcome of appeals against conviction in England and Wales. The law orbiting criminal appeals, which has developed in light of the institutional positioning of the Court, is the strongest predictor of the outcome of appeals.
Wednesday, June 28, 2017
Laura I Appleman (Willamette University College of Law) has posted Cashing in on Convicts: Privatization, Punishment, and the People (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability. This Article shows what we lose when we allow private, for-profit entities to take on the traditional community function of imposing and regulating punishment. By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system.
Kristýna Březinová (Charles University in Prague - Law Faculty) has posted Company Criminal Liability for Unlawful Attacks against Information Systems within the Scope of EU Law on SSRN. Here is the abstract:
Unlawful attacks against information systems are everyday reality for large international companies such as Apple or Facebook as well as for SMEs, national information systems and individuals who are more and more often objects of such attacks. This thesis carries out an analysis of the most important legal instruments primarily at the level of the European Union in the field of cybercrime committed by companies and other legal persons. It explores the history of regulation of cybercrime and it especially analysis crimes of illegal access to information systems and illegal system interference governed above all by the Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA. It also looks at corporate criminal liability in this field and at sanctions which can be applied on legal entities according to the EU and Czech regulation for committing unlawful attacks against information systems. At the same time this thesis concerns with the implementation of the Directive on attacks against information systems into the Czech legal framework, i.e. Act No. 40/2009 Coll., the Criminal Code, also it concerns with the regulation of criminal liability of legal persons by Czech Act No. 418/2011 Coll., on Criminal Liability of Legal Entities and their Prosecution, and it critically evaluates these legal instruments.
Emily West and Vanessa Meterko (CUNY Institute for State and Local Governance and Innocence Project) have posted DNA Exonerations 1989-2014: Review of Data and Findings from the First 25 Years (Albany Law Review, Vol. 79, No. 3, p. 717-795, 2015/2016) on SSRN. Here is the abstract:
During the last quarter century there have been 325 DNA exonerations in the United States (1989-2014). This 25-year mark provides a meaningful opportunity to reflect on what we have learned about wrongful convictions and how these cases can inform the conversation around criminal justice policies and practices. As such, this report offers a first-time comprehensive review of data collected by the Innocence Project on DNA exonerations. It is designed to be a tool to better understand what these wrongful convictions involved and to promote more discourse and action on the issues across multiple arenas (academia, policy, litigation, journalism and the public).
In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound.
Maria Antonella Mancino, Salvador Navarro and David A. Rivers (University of Western Ontario - Department of Economics, University of Western Ontario - Department of Economics and University of Western Ontario - Department of Economics) have posted Separating State Dependence, Experience, and Heterogeneity in a Model of Youth Crime and Education (Economics of Education Review, Vol. 54, 2016) on SSRN. Here is the abstract:
We study the determinants of youth crime using a dynamic discrete choice model of crime and education. We allow past education and criminal activities to affect current crime and educational decisions. We take advantage of a rich panel dataset on serious juvenile offenders, the Pathways to Desistance. Using a series of psychometric tests, we estimate a model of cognitive and social/emotional skills which feed into the crime and education model. This allows us to separately identify the roles of state dependence, returns to experience, and heterogeneity in driving crime and enrollment decisions among youth. We find small effects of experience and stronger evidence of state dependence and heterogeneity for crime and schooling. We provide evidence that, as a consequence, policies that affect individual heterogeneity (e.g., social/emotional skills), and those that temporarily keep youth away from crime, can have important and lasting effects even if criminal experience has already accumulated.
Tuesday, June 27, 2017
Ronald F. Wright (Wake Forest University - School of Law) has posted Prosecutors, Flying Blind and Flying Solo (Chapter in Academy for Justice: A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., Forthcoming)) on SSRN. Here is the abstract:
Criminal prosecutors must do a complex job, one that is crucial to public safety and the quality of justice. Unfortunately, they must do so under circumstances that are tilted toward failure. The typical local prosecutor, working within the current legal framework, must “fly blind” and “fly solo.” The prosecutor flies blind because so little information is available about overall trends in case processing, prevention programs, corrections costs, and voter concerns about public safety. Prosecutors can see some details about individual cases but not so much about systemic effects of their work. Supervisors within larger prosecutor offices also operate in the dark about many case-level choices of line prosecutors. It is equally troubling that prosecutors fly solo. Judges, police, defense attorneys, and community groups have relatively little influence over the diversion, charge selection, and case resolution choices of individual prosecutors or office policies on these topics. To address the problems of flying blind and flying solo, improvements in the information available to prosecutors and changes in the partners they consult hold the greatest promise for improving prosecutors’ work.
Dana Erin Phillips (York University, Osgoode Hall Law School, Students) has posted Let's Talk about Sexual Assault: Survivor Stories and the Law in the Jian Ghomeshi Media Discourse (Osgoode Hall Law Journal, Vol. 54(4), Forthcoming) on SSRN. Here is the abstract:
The recent allegations against former Canadian radio host Jian Ghomeshi catalyzed an exceptional moment of public discourse on sexual assault in Canada. Following public revelations from several women who described being attacked by Ghomeshi, many others came forward with accounts of sexual violence in their own lives. Affirming feminist critiques of sexual assault law reform, many survivors drew on their experiences to expose the criminal justice system’s ongoing flaws in processing sexual assault cases. While some held out hope for the criminal law’s role in addressing sexual violence, most rejected its individualizing and retributive aspects. Instead, survivors emphasized the need for their experiences to be meaningfully acknowledged, and the primary importance of speaking out publicly about sexual violence in order to debunk common stereotypes and effect cultural change. Following a grassroots feminist impetus, they framed their stories as resisting legal and social norms through a turn to direct personal experience.
The recent spate of media and political attention to sexual assault on college campuses serves as a reminder that, despite decades of feminist-inspired rape law reform, sexual assault remains an entrenched and troubling issue. While sexual assault on college campuses is emblematic of the continuing problem of sexual assault, however, how we respond to it may also provide insights to the solution. The rather recent clarification that Title IX’s prohibition against sex discrimination at federally-funded educational institutions extends to peer-to-peer sexual assault presents an opportunity to draw lessons from the limitations of rape law reform efforts and expand accountability and justice in the sexual assault context beyond the punitive criminal law framework.
Carolyn Strange (Australian National University (ANU)) has posted Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State (Osgoode Hall Law Journal, Vol. 54(3), Forthcoming) on SSRN. Here is the abstract:
Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the U.S. have overlooked the utility of the conceptual tools Hay provided to prise open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism, and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. To analyse this moment, this essay asks what drove opinion against discretionary justice in the form of the pardon and parole, and traces the conditions that give rise to judgments that discretionary justice was too frequent and injudicious. A new vision of order, fixated on penal certainty, came into sharp focus over the 1920s, when mandatory sentencing statutes were introduced. Yet gubernatorial clemency survived that crisis, and in 1930 parole was professionalized and placed under stricter management. This paper confirms that modernity proved no match for discretionary justice. In its personal and administrative forms, it penetrates penal justice, despite the earnest drive to certainty and the persistent demands to terrorize criminals.
In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935 Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of history of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that narrowed its scope and the one unsuccessful effort to prosecute an employer for intentionally paying less than the provincial minimum wage. It concludes that the law was a symbolic gesture and another example of the difficulty of using the criminal law to punish employers for their wrongdoing.
The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:
1. Police would give the same Miranda warnings that they have always provided.
2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words.