CrimProf Blog

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

Wednesday, February 14, 2018

Pardo on Standards of Proof

Pardo michaelMichael S. Pardo (University of Alabama School of Law) has posted Epistemology, Psychology, and Standards of Proof: An Essay on Risinger’s ‘Surprise’ Theory (Seton Hall Law Review, Vol. 48, 2018) on SSRN. Here is the abstract:
 
This paper, prepared for a symposium honoring the work of Michael Risinger, examines Risinger’s theory of “estimative surprise” for explaining legal standards of proof. The paper first situates the theory in the set of psychological and epistemological considerations that underlie proof standards, and it argues that the theory is aimed at explaining the psychological rather than the epistemological component of such standards. Focusing on the criminal standard of proof “beyond a reasonable doubt,” the paper then discusses two epistemic considerations that may fit with and supplement Risinger’s theory: epistemic safety and explanatory inferences. Finally, the paper illustrates the connections between surprise, safety, and explanations with detailed discussions of two cases in which defendants challenged the constitutional sufficiency of the evidence supporting their convictions.

February 14, 2018 | Permalink | Comments (0)

Wheeler et al. on Similarity of Area-Based Spatial Patterns

Andrew WheelerWouter Steenbeek and Martin A Andresen (University of Texas at Dallas - School of Economic, Political and Policy Sciences, Nederlands Studiecentrum Criminaliteit en Rechtshandhaving NCSR and Simon Fraser University) have posted Testing for Similarity in Area-Based Spatial Patterns: Alternative Methods to Andresen's Spatial Point Pattern Test on SSRN. Here is the abstract:
 
Andresen’s spatial point pattern test (SPPT) compares two spatial point patterns on defined areal units: it identifies areas where the spatial point patterns diverge and aggregates these local (dis)similarities to one global measure. We discuss the limitations of the SPPT and provide two alternative methods to calculate differences in the point patterns. In the first approach we use differences in proportions tests corrected for multiple comparisons. We show how the size of differences matter, as with large point patterns many areas will be identified by SPPT as statistically different, even if those differences are substantively trivial. The second approach uses multinomial logistic regression, which can be extended to identify differences in proportions over continuous time. We demonstrate these methods on identifying areas where pedestrian stops by the New York City Police Department are different from violent crimes from 2006 through 2016.

February 14, 2018 | Permalink | Comments (0)

Lidsky & Norbut on The Context of Online Threats

Lyrissa Barnett Lidsky and Linda Riedemann Norbut (University of Missouri School of Law and Brechner Center for Freedom of Information, University of Florida) have posted #I🔫U: Considering the Context of Online Threats (California Law Review, Forthcoming) on SSRN. Here is the abstract:
 
The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common, but they also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emoji. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment.
 
 

 

February 14, 2018 | Permalink | Comments (0)

Tuesday, February 13, 2018

"When Border Searches Become Unreasonable"

From The National Review, via the NACDL news scan. In part:

Under a law passed in 1946 (now codified as 8 U.S.C. §1357), the CBP claims the right to search people and places without a warrant if the purpose of the search is to find illegal aliens and the search occurs within a “reasonable distance” of an international border. In regulations passed in 1953, that “reasonable distance” was defined as 100 miles from any land border or sea coast. Almost without comment, Congress made large swathes of the United States into a region where the Fourth Amendment is seriously weakened.

As the ACLU has noted, roughly two-thirds of Americans live within 100 miles of the oceans or the borders. And while the law in question specifically exempts dwellings from warrantless searches, that is the only exception. If you find yourself anywhere else in the warrantless zone, including cars, boats, trains, backyards, and (as we have seen) buses, and you are liable to be stopped and searched if CBP suspects you may be an illegal immigrant. It could be even worse than that; the law also allows the CBP to extend its Fourth Amendment–violating search power to areas greater than 100 miles with the permission of its commissioner.

February 13, 2018 | Permalink | Comments (0)

"Close the Police Rape Loophole"

From The New York Times. In part:

In October, two New York City police officers were charged with kidnapping and raping an 18-year-old Brooklyn woman they had taken into custody. The facts of the case are bad enough, but they also underscore another outrage: Vaguely written statutes in many states, including New York, permit police officers to escape sexual assault charges by claiming that the victims consented to the act.

. . .

Elected officials were rightly outraged to find that the state statute prohibiting sexual contact between corrections officers and parole officers and those in their custody does not expressly rule out sexual contact between police officers and people they detain or arrest. After learning that, New York City Council member Mark Treyger introduced a resolution calling on the State Legislature to remedy this problem.

February 13, 2018 | Permalink | Comments (0)

"UK judge upholds arrest warrant for Julian Assange"

From Jurist:

The WikiLeaks co-founder breached bail conditions and sought refuge at the embassy in 2012 to avoid an arrest warrant [BBC timeline] from the Swedish Prosecutor's Office regarding two separate sexual assault claims.

Though prosecutors dropped the rape investigation into Assange last year, Judge Emma Arbuthnot stated that she is not persuaded that his current warrant for arrest should be withdrawn. Assange is still wanted [Telegraph report] for failing to appear at his bail address back in 2012.

February 13, 2018 | Permalink | Comments (0)

Gonzalez on Youth Incarceration

Thalia González (Occidental College) has posted Youth Incarceration, Health, and Length of Stay (Fordham Urban Law Journal, Vol. XLV, 2017) on SSRN. Here is the abstract:
 
For youth from marginalized communities, the pathway into the juvenile justice system occurs against a backdrop of disproportionately high levels of stress, complex trauma, and adverse childhood experiences. Despite overall reductions in the percentage of youth in confinement from recent state-level reforms, the lengths of stay for many youth often exceed evidence-based timelines, as well as a state's own guidelines and criteria. This occurs despite a large and growing body of empirical research that documents the health status of system-involved youth and the association between incarceration during adolescence and the range of subsequent health and mental health outcomes in adulthood. Presently, advocates for length of stay reform rely on two primary arguments: recidivism and costs of confinement. This Article argues that this framing misses a critical component, as a better understanding of the linkages between length of stay, health, and mental health are essential for achieving the foundational goals of the juvenile justice system--i.e., rehabilitation, decreased recidivism, and improved community reintegration. Through an examination of juvenile sentencing typologies, release decision-making, and empirical research on the health and mental health needs of at-risk and system-involved youth, this Article aims to fill this gap and expand current lines of debate, discourse, and advocacy.

February 13, 2018 | Permalink | Comments (0)

Robertson & Winkelman on Incentives, Lies, and Disclosure

Christopher T. Robertson and D. Winkelman (University of Arizona - James E. Rogers College of Law and University of Arizona - James E. Rogers College of Law) have posted Incentives, Lies, and Disclosure (20 University of Pennsylvania Journal of Constitutional Law 33 (2018)) on SSRN. Here is the abstract:
 
Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony.

Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors. 

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February 13, 2018 | Permalink | Comments (0)

Scott et al. on Brain Development and Social Context

Elizabeth S. ScottNatasha Duell and Laurence Steinberg (Columbia University - Law School, Temple University and Temple University - Department of Psychology) have posted Brain Development, Social Context and Justice Policy (Washington University Journal of Law and Policy, Forthcoming) on SSRN. Here is the abstract:
 
Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime. But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend. This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct. Instead the decision to offend, like much behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context. The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior. 

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February 13, 2018 | Permalink | Comments (0)

Juneia on Accountability in Policing

Aditi Juneja (Independent) has posted Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa (California Western International Law Journal, Vol. 48, 2018) on SSRN. Here is the abstract:
 
A comparison of the United States and South Africa is instructive in understanding how complicit behavior perpetuates institutional racism. In both the United States and South Africa, police and prosecutors have often faced accusations of racially biased decisionmaking. Racial bias is not a new concept; it is derived from political systems that separated people based on race. In the United States, the system is commonly known as segregation; in South Africa, the system is known as apartheid. Significantly, in both countries, the racial separation was institutionalized and enforced by governmental agents, particularly police and prosecutors.

However, there are notable differences between the two countries’ accountability systems for policing that reveal a deeper understanding of the causes of institutional racism than would be possible when examining each country separately.

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February 13, 2018 | Permalink | Comments (0)

Monday, February 12, 2018

Perlin et al. on Civil and Criminal Mental Disability Law

Michael L. PerlinDeborah Dorfman and Naomi Weinstein (New York Law School, Center for Public Representation and New York State Unified Court System - Mental Hygiene Legal Service) have posted 'On Desolation Row': The Blurring of the Borders Between Civil and Criminal Mental Disability Law, and What It Means For All of Us on SSRN. Here is the abstract:
 
One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making.

As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. 

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February 12, 2018 | Permalink | Comments (0)

Claus on An Independent Attorney General

Claus laurenceLaurence Claus (University of San Diego School of Law) has posted The Divided Executive on SSRN. Here is the abstract:
 
Article II’s apparent provision for a unitary executive is at odds with a mature understanding of what makes the separation of powers constitutionally valuable. From Montesquieu to Brandeis, jurists theorizing separation of powers have characterized its purpose as primarily to promote liberty and the rule of law. Two centuries of constitutional experience lets us now see more clearly that liberty and the rule of law are promoted by checks and balances that prevent individual actors, including the President, from conclusively determining the reach of their own powers. Dividing the executive may further promote the liberty and rule-of-law goals of the Constitution’s existing checks and balances. This article, written for a symposium at Duke University School of Law entitled An Even More Perfect Union: Proposed Amendments to the Constitution, further develops and deepens the case made in existing scholarship for dividing the American national executive, and in particular for constitutionally securing the independence of the Attorney General.

February 12, 2018 | Permalink | Comments (0)

Musto on Maritime Piracy

Callum Musto (London School of Economics & Political Science (LSE) - Department of Law) has posted The Elements of Maritime Piracy on SSRN. Here is the abstract:
 
The dissertation identifies uncertainty in the Article 101 UNCLOS definition of maritime piracy as an obstacle to the effective prosecution of piracy offences at the domestic level.
 
After surveying relevant domestic decisions and legislation purporting to give effect to the customary and/or conventional definition of piracy (as evidence of State practice and opinio juris or subsequent practice relevant under Article 31(3)(b) VCLT) the dissertation adapts the approach of the International Criminal Court of establishing 'elements of crime' for Rome Statute offences, and attempts to articulate such elements of crime for maritime piracy.

February 12, 2018 | Permalink | Comments (0)

Dennis on Decriminalizing Childhood

Dennis andreaAndrea Dennis (University of Georgia School of Law) has posted Decriminalizing Childhood (Fordham Urban Law Journal, Vol. 45, 2018) on SSRN. Here is the abstract:
 
Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The original concept of the juvenile justice system consisted of a singular, informal juvenile court focused on rehabilitating youthful offenders engaged in criminal and noncriminal conduct to help them become productive citizens.

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February 12, 2018 | Permalink | Comments (0)

Sunday, February 11, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The 'New' District Court Activism in Criminal Justice Reform

Yeshiva University - Benjamin N. Cardozo School of Law
96
2.

Backdoor Man: A Radiograph of Computer Source Code Theft Cases

Babes-Bolyai University - Faculty of Law and Independent
76
3.

Privacy, Voyeurism, and Statutory Interpretation

College of Law, University of Saskatchewan
71
4.

Mental Health Courts and Sentencing Disparities

University of Florida - Levin College of Law and University of Florida - Levin College of Law
68
5.

Moral and Criminal Responsibility: Answering and Refusing to Answer

University of Stirling - Department of Philosophy
63
6.

Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures

Mitchell Hamline School of Law
63
7.

Why Rape Should Be a Federal Crime

University of San Diego School of Law
63
8.

Women, Crime and Character in Twentieth Century Law and Literature: In Search of the Modern Moll Flanders

London School of Economics - Law Department
60
9.

The Elusive Object of Punishment

University of Michigan Law School
56
10.

The DTSA and the New Secrecy Ecology

University of San Diego School of Law
52

February 11, 2018 | Permalink | Comments (0)

Saturday, February 10, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
503
2.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
217
3.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
180
4.

Who Killed Habeas Corpus?

U.S. District Court - Eastern District of WI
140
5.

Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis?

Stanford University - Stanford Law School Center for Internet and Society
119
6.

Cops, Docs, and Code: A Dialogue between Big Data in Health Care and Predictive Policing

Harvard Law School and Harvard University, Law School, Students
100
7.

The 'New' District Court Activism in Criminal Justice Reform

Yeshiva University - Benjamin N. Cardozo School of Law
96
8.

How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It

Pennsylvania State University, Penn State Law
83
9.

Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa

Independent
81
10.

Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians

University of Arizona - Indigenous Peoples Law And Policy Program
70

February 10, 2018 | Permalink | Comments (0)

Friday, February 9, 2018

Asongu & Acha-Anvi on Murder

Simplice Asongu and Paul Acha-Anyi (African Governance and Development Institute and Tshwane University of Technology) have posted The Murder Epidemic: A Global Comparative Study (Forthcoming: International Criminal Justice Review) on SSRN. Here is the abstract:
 
We build on literature from policy and academic circles to assess if Latin America is leading when it comes to persistence in homicides. The focus is on a global sample of 163 countries for the period 2010 to 2015. The empirical evidence is based on Generalised Method of Moments. The following main finding is established. The region with the highest evidence of persistence in homicides is sub-Saharan Africa (SSA), followed by Latin America, the Middle East and North Africa (MENA) and then by Europe & Central Asia (ECA). In order to increase room for policy implications, the dataset is decomposed into income levels, religious domination, landlockedness and legal origins. From the conditioning information set, the following factors account for persistence in global homicides: crime, political instability and weapons import positively affect homicides whereas the number of “security and police officers” has the opposite effect.

February 9, 2018 | Permalink | Comments (0)

Wheeler on Creating Optimal Patrol Areas

Andrew Wheeler (University of Texas at Dallas - School of Economic, Political and Policy Sciences) has posted A Gentle Introduction to Creating Optimal Patrol Areas on SSRN. Here is the abstract:
 
Models to create optimal patrol areas have been in existence for over 45 years, but police departments still regularly construct patrol areas in an ad-hoc fashion. This essay walks the reader through formulating an integer linear program to create a set number of patrol areas that have near equal call load and that are contiguous using simple examples. Then the technique is illustrated using a case study in Carrollton, TX. Creating optimal patrol areas not only have the potential to improve efficiency in response times, but can also encourage hot spots policing. Applications of linear programming can additionally be applied to a wide variety of problems within criminal justice agencies, and this essay provides a gentle introduction to understanding the mathematical notation of linear programming.

February 9, 2018 | Permalink | Comments (0)

Blandon-Gitlin & Mindthoff on Videotaped Interrogations

Iris Blandon-Gitlin and Amelia Mindthoff (California State University, Fullerton and Florida International University (FIU) - College of Arts & Sciences) have posted an abstract of Do Video Recordings Help Jurors Recognize Coercive Influences in Interrogations? (Criminal Juries in the 21st Century. Edited by Cynthia Janis Najdowski & Margaret C. Stevenson, Forthcoming) on SSRN. Here is the abstract:
 
In recognition of the role that false confessions play in wrongful convictions, it has been recommended that criminal interrogations be video recorded from beginning to end to document the process by which suspects decide to confess. With a full video recording, it is assumed that jurors can see for themselves whether the defendant was coerced to confess to a crime he or she did not commit. Yet, research suggests that video recording may in fact induce bias in interpretations of coercion and confession reliability, as factors like camera angles and close-ups can make confession evidence too vivid and persuasive. Without proper interpretation, even seemingly neutral recordings may unduly influence jurors’ decisions about confessions. We review the literature on the usefulness of video recorded interrogations in assisting jury decision making, as well as the potential for procedural safeguards (e.g., expert testimony) to improve jurors’ understanding of the issues at hand.

February 9, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Chan on Silence and Immigration Enforcement

Chan linusLinus Chan (University of Minnesota School of Law - Center for New Americans) has posted The Promise and Failure of Silence As a Shield Against Immigration Enforcement (Valparaiso University Law Review, Forthcoming) on SSRN. Here is the abstract:
 
When confronted by law enforcement, criminal suspects' most powerful, and constitutionally protected tool has been silence. The right to remain silent has become ingrained into our shared understanding of criminal law, but its potential use in immigration enforcement remained largely untested, even as legal advocates regularly tell the public to remain silent when encountering immigration enforcement officials. This paper examines the potential force of silence in protecting people from immigration enforcement and concludes that it is unlikely to have a significant impact on immigration detention without a corresponding change in how people view their immigration status. As long as immigration status continues to be viewed by citizens and non-citizens alike as potentially relevant identifiers, the power of silence to protect against deportation will remain weak.

February 8, 2018 | Permalink | Comments (0)