CrimProf Blog

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

Wednesday, May 18, 2016

Corrado on The Case Against Retributivism

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Chapter Three. The Case Against Retribution on SSRN. Here is the abstract:

There are strong intuitions on both sides of the responsibility/determinism debate, and each side would like to claim that the other side has the burden of proof. To some extent the debate is an academic exercise: no one really plans to change they way they live their lives depending on the outcome, and everyone is free to place the burden of proof where they will. When it comes to retribution and punishment, however, the stakes are considerably higher. Those who would argue that the community is entitled to externalize the cost of crime control onto those who are said to deserve it must bear the burden of proof, and must meet a rather high standard of proof to boot.

May 18, 2016 | Permalink | Comments (0)

SMU seeks director for criminal justice reform center

The SMU Dedman School of Law is seeking a full-time Director to establish and operate its new Deason Family Criminal Justice Reform Center. This is a full-time position. The initial contract term is one year, renewable for additional one to three year terms. Further details follow the jump.

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May 18, 2016 | Permalink | Comments (0)

Tuesday, May 17, 2016

"American Law Institute rejects affirmative consent standard in defining sexual assault"

This story appears in The Washington Times. The ALI website says:

After an extensive discussion, membership approved an amended version of Subsection 213.0(3) (definition of consent), presented by motion. There was insufficient time to discuss Section 213.2.

May 17, 2016 | Permalink | Comments (0)

New video teaching materials on false confessions

Those of you who watched  "Making a Murderer" will recall the sorry interrogation practices on display there. Steven Drizen reports on the following materials now available for classroom use growing out of the case:

As you plan your next semester teaching, please consider whether you want to build this program into your curriculum.  "Making a Murderer":  Brendan Dassey: A True Story of a False Confession is a two-hour Program that uses video clips from the Brendan Dassey interrogations to explain how standard police interrogation tactics can and do produce false and coerced confessions.  The Program features Brendan Dassey's lawyers, Northwestern Pritzker School of Law's Clinical Law Professors Steven Drizin and Laura Nirider, and also features a Panel Discussion moderated by a sitting criminal court judge (Judge Michael Browne, Hennepin County Circuit Court) that touches upon many of the issues raised by the film.  Panelists include a former Cook County prosecutor (Robert Milan), an adolescent forensic psychologist (Dr. Antoinette Kavanaugh) and Professors Drizin and Nirider.  

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May 17, 2016 | Permalink | Comments (0)

Gruber, Cohen & Mogulescu on Human Trafficking Intervention Courts

Aya Gruber , Amy J. Cohen and Kate Mogulescu (University of Colorado Law School , Ohio State University (OSU) - Michael E. Moritz College of Law and The Legal Aid Society) have posted Penal Welfare and the New Human Trafficking Intervention Courts (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

In the fall of 2013, New York State’s chief judge, Jonathan Lippman, announced a “revolutionary” statewide initiative to create and implement Human Trafficking Intervention Courts (HTICs). The initiative occurred amidst a burgeoning consensus that prostitution is human trafficking and women who engage in prostitution are largely victims of exploitation and violence. Given the HTICs’ ambition to, in Lippman’s words, “eradicate the epidemic of human trafficking” and the convergent view of prostitution as trafficking, one might think that the HTICs are courts that prosecute traffickers, where victim-witnesses enjoy special protections. In fact, the HTICs are criminal diversion courts where mostly female defendants are prosecuted for prostitution offenses, but offered mandated services in lieu of criminal conviction and jail. The HTICs are thus a puzzle. Why have so many commentators heralded them as the model approach to prostitution/trafficking when they involve the arrest, prosecution, and even incarceration of prostitution defendants, who are presumed to be victims? A key piece of this puzzle is a phenomenon we call “penal welfare,” that is, a growing practice of using criminal courts to provision social services and benefits.

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May 17, 2016 | Permalink | Comments (0)

Cramer on Gun Prevalence and Crime Rates

Clayton E. Cramer (College of Western Idaho) has posted Gun Prevalence and Crime Rates: Is There a Relationship? on SSRN. Here is the abstract:

Does gun ownership increase crime rates? Analyzing national gun firearm purchase data and crime rates provides strong evidence that the number of guns in America does not increase crime rates; indeed, the evidence suggests the opposite.

May 17, 2016 | Permalink | Comments (0)

Monday, May 16, 2016

A promising motion to fix the central problems with the ALI's sexual assault draft

With the ALI scheduled to begin discussion tomorrow on its sexual assault draft, seven ALI members--two advisors to the drafting process and five members of the Members Consultative Group--have prepared a motion that would remedy the draft's central problem. A copy can be downloaded here:  Download MPC213Alternate. In essence, the central element is replacing the draft's definition of "consent" as "behavior . . . that communicates . . . willingness." Instead, the motion would define "consent" as the partner's "willingness" to engage in the act in question. 

A list of some recent criticisms of the draft appears at the end of this post. The small change accomplished by the motion would address the draft's most significant problems.

The motion would result in a draft consistent with the Model Penal Code's general approach to criminal liability. An actor would be guilty only if consciously aware of a substantial risk that the partner was not willing to engage in the act in question. In other words, the motion would ask directly whether the actor behaved culpably with respect to a serious social harm of which even moderately socialized persons would be aware. It is fair to expect everyone to know that people should not engage in sex acts with those who are not willing.

Throughout the drafting process, a different approach has been taken. Originally, the drafts defined consent to require "positive agreement." Later drafts dropped the "positive," and the current draft recasts the standard as behavior communicating willingness. In all these cases, the drafts interposed an objective inquiry between the defendant's mental state and the partner's. Someone--a jury in applying the objective standard or a judge instructing on what counted as "positive agreement" or "behavior communicating willingness"--would decide which historical facts would satisfy the objective standard. As set forth more fully in an earlier post, the defendant's mental state would be relevant only in regard to the underlying historical facts, not on the "legal" consequence of those historical facts. 

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May 16, 2016 | Permalink | Comments (0)

Bibas on Plea Bargaining

Bibas stephanosStephanos Bibas (University of Pennsylvania Law School) has posted Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops (William & Mary Law Review, Vol. 57, P. 1055, 2016) on SSRN. Here is the abstract:

American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.

May 16, 2016 | Permalink | Comments (0)

Luca et al. on Mass Shootings and Gun Policy

Michael Luca , Deepak K. Malhotra and Christopher Poliquin (Harvard Business School - Negotiations, Organizations & Markets Unit , Harvard Business School - Negotiation, Organizations & Markets Unit and Harvard Business School) have posted The Impact of Mass Shootings on Gun Policy on SSRN. Here is the abstract:

There have been dozens of high-profile mass shootings in recent decades. This paper presents three main findings about the impact of mass shootings on gun policy. First, mass shootings evoke large policy responses. A single mass shooting leads to a 15% increase in the number of firearm bills introduced within a state in the year after a mass shooting. This effect increases with the number of fatalities. Second, mass shootings account for only 0.3% of all gun deaths, but have an outsized influence relative to other homicides. Our estimates suggest that the per-death impact of mass shootings on bills introduced is about 66 times as large as the impact of individual gun homicides in non-mass shooting incidents. Third, when looking at enacted laws, the impact of mass shootings depends on the party in power. A mass shooting increases the number of enacted laws that loosen gun restrictions by 75% in states with Republican-controlled legislatures. We find no significant effect of mass shootings on laws enacted when there is a Democrat-controlled legislature.

May 16, 2016 | Permalink | Comments (0)

Opinion on AEDPA standard of review

The per curiam opinion in Kernan v. Hinojas is here. Justice Sotomayor, joined by Justice Ginsburg, dissented.

May 16, 2016 | Permalink | Comments (0)

Sunday, May 15, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here. The usual disclaimers apply.

Rank Downloads Paper Title
1 325 De-Policing
Stephen Rushin and Griffin Sims Edwards
University of Alabama - School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics
Date posted to database: 3 Apr 2016 [4th last week]
2 287 Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court
Mark Denbeaux, Kelley Kearns andMichael J. Ricciardelli
Seton Hall University, School of Law, Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08
Date posted to database: 9 Apr 2016 [6th last week]
3 286 'They Have All the Power': Youth/Police Encounters on Chicago's South Side
Craig B. Futterman, Chaclyn Hunt andJamie Kalven
University of Chicago Law School, Invisible Institute and Invisible Institute
Date posted to database: 27 Mar 2016 [5th last week]
4 207 Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution
Harry M. Caldwell
Pepperdine University - School of Law
Date posted to database: 10 Apr 2016 [8th last week]
5 155 Prosecutorial Analytics
Jason Kreag
University of Arizona Rogers College of Law
Date posted to database: 25 Apr 2016 [new to top ten]
6 140 Policing Predictive Policing
Andrew Guthrie Ferguson
University of the District of Columbia - David A. Clarke School of Law
Date posted to database: 18 Apr 2016 [new to top ten]
7 131 Why Vague Sentencing Guidelines Violate the Due Process Clause
Kelsey Heilman
Government of the United States of America - U.S. District Court for the District of Oregon
Date posted to database: 1 May 2016 [new to top ten]
8 130 A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016 [new to top ten]
9 108 Voices on Innocence
Lucian E. Dervan, Richard A. Leo,Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist andWilliam W. Berry
Southern Illinois University School of Law, University of San Francisco - School of Law, Southern Methodist University - Dedman School of Law, West Virginia University - College of Law, University of Toledo College of Law and University of Mississippi School of Law
Date posted to database: 15 Mar 2016 [new to top ten]
10 91 Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment
Alex Reinert
Yeshiva University - Benjamin N. Cardozo School of Law
Date posted to database: 6 Apr 2016 [new to top ten]

May 15, 2016 | Permalink | Comments (0)

New statement by over 150 ALI members expressing concerns with sexual assault draft

You can find the text, sent to me by several ALI members, following the jump.

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May 15, 2016 | Permalink | Comments (0)

Saturday, May 14, 2016

DiBattista on Excessive Force

Michael S. DiBattista has posted A Force to Be Reckoned With: Confronting the (Still) Unresolved Questions of Excessive Force Jurisprudence After Kingsley (Columbia Human Rights Law Review, Vol. 48, Forthcoming) on SSRN. Here is the abstract:

In Kingsley v. Hendrickson, the Supreme Court finally resolved the outstanding question of what standard is used to determine whether a pretrial detainee’s right to be free from excessive force under the Fourteenth Amendment’s Due Process Clause has been violated. The Court held that the appropriate standard is an objective reasonableness test similar to the Fourth Amendment’s test for excessive force, rather than a subjective test similar to the malicious and sadistic purpose test under the Eighth Amendment. While resolving this longstanding question, the Court expressly reserved two related questions — the answers to which will either broaden or restrict the boundaries and definitions of what constitutes excessive force, and the rights of pretrial detainees and convicted prisoners. These questions are: (1) whether reckless acts (as opposed to purposeful acts) that cause objectively unreasonable force are sufficient to state a claim under the Fourteenth Amendment, and (2) whether the Court’s holding that an objective standard is sufficient to assess excessive force claims brought by pretrial detainees under the Fourteenth Amendment is in conflict with the Court’s prior holdings that a subjective standard is required to assess excessive force claims brought by convicted inmates under the Eighth Amendment. The note discusses these unresolved questions and predicts how the Court will eventually resolve them in the future.

May 14, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 439 The Federal Circuits’ Second Amendment Doctrines
David B. Kopel and Joseph G.S. Greenlee
Independence Institute and Independent
Date posted to database: 21 Apr 2016
2 306 Like Snow to the Eskimos and Trump to the Republican Party: The Ali's Many Words for, and Shifting Pronouncements About, 'Affirmative Consent'
Kevin Cole
University of San Diego School of Law
Date posted to database: 24 Mar 2016
3 141 Causation in the Law: Philosophy, Doctrine and Practice
Ingeborg Puppe and Richard W. Wright
University of Bonn - Department of Law and Illinois Institute of Technology - Chicago-Kent College of Law
Date posted to database: 15 Mar 2016
4 129 Campus Sexual Assault Adjudication and Resistance to Reform
Michelle J. Anderson
CUNY School of Law
Date posted to database: 21 Apr 2016 [5th last week]
5 128 A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016[4th last week]
6 114 Causation: Linguistic, Philosophical, Legal and Economic
Richard W. Wright and Ingeborg Puppe
Illinois Institute of Technology - Chicago-Kent College of Law and University of Bonn - Department of Law
Date posted to database: 22 Apr 2016 
7 105 Policing Rape
Corey Rayburn Yung
University of Kansas School of Law
Date posted to database: 8 Mar 2016 
8 86 Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016
9 68 The Common Law of War
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 18 Apr 2016
10 68 Chapter One. Two Models of Criminal Justice
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 6 Apr 2016 

May 14, 2016 | Permalink | Comments (0)

Friday, May 13, 2016

Gupta et al. on High Bail

Arpit Gupta , Christopher Hansman and Ethan Frenchman (Columbia University - Columbia Business School , Columbia University, Barnard College - Department of Economics and Maryland Office of The Public Defender) have posted The Heavy Costs of High Bail: Evidence from Judge Randomization on SSRN. Here is the abstract:

Roughly 450,000 people are detained awaiting trial on any given day, typically because bail has not been posted. Using a large sample of criminal cases in Philadelphia and Pittsburgh, we analyze the consequences of bail assessment and pretrial detentions by exploiting the variation in bail setting tendencies among randomly assigned bail judges. Our estimates suggest that the assignment of money bail leads to a 6 percentage point rise in the likelihood of pleading guilty, and a 4 percentage point rise in recidivism. We also find evidence for racial bias in bail setting. Our results highlight the importance of credit constraints in shaping defendant judicial outcomes and point to important fairness considerations in the institutional design of pretrial detention programs.

May 13, 2016 | Permalink | Comments (0)

Green on Prosecutors and Access to Justice

Green bruceBruce A. Green (Fordham University School of Law) has posted Access to Criminal Justice: Where are the Prosecutors? (3 Texas A&M L. Rev. 515 (2016)) on SSRN. Here is the abstract:

When the organized bar talks about “access to justice,” it tends to look exclusively at civil justice and to emphasize the need for lawyers in civil cases. This overlooks criminal justice and the essential role of lawyers in working to secure it. When the organized bar promotes criminal justice, it is typically circumspect about prosecutors’ responsibility. This essay argues that the bar should take a stronger role in elaborating prosecutorial norms, particularly in the context of miscarriages of justice both on the individual and systemic levels. When people are denied access to criminal justice, the bar should ask, “Where were the prosecutors?”

May 13, 2016 | Permalink | Comments (0)

Strutin on Post-Conviction Counsel

Ken Strutin has posted Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel (Cardozo Public Law, Policy & Ethics Journal, Vol. 14, No. 2, p. 343, 2016) on SSRN. Here is the abstract:

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life. Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood. Part II addresses the reality of petition or perish created by Bounds and Casey. Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated. Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

May 13, 2016 | Permalink | Comments (0)

Bagaric & Gopalan on Substance Abuse and Crime

Mirko Bagaric and Sandeep Gopalan (Deakin University, Geelong, Australia - Deakin Law School and Deakin University, Geelong, Australia - Deakin Law School) have posted A Sober Assessment of the Link between Substance Abuse and Crime – Eliminating Drug and Alcohol Use from the Sentencing Calculus (Santa Clara Law Review, Vol. 56, No. 2, 2016) on SSRN. Here is the abstract:

Most crimes are committed by individuals who are intoxicated or addicted to drugs or alcohol. Despite this, the relevance of drug and alcohol intoxication addiction to sentencing is one of the most perplexing and under-researched areas of sentencing law and practice. It is also one of the most important and complex issues in the criminal justice system.

Addiction and intoxication impair sound judgment and hence intuitively it appears that intoxicated offenders are less culpable for their crimes. Moreover, there is often a sense that addiction and intoxication cause aberrant behaviour and that curing the substance involvement will lead to more prudent (law-abiding) conduct.

Yet the damage caused by crimes committed by intoxicated and addicted offenders is not diminished by the fact that their conduct was influenced by drugs or alcohol. An individual is no less dead if he or she is killed by a drug addicted offender as opposed to another offender. The competing issues relating to the sentencing of addicted and intoxicated offenders are considered and analysed in this Article.

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May 13, 2016 | Permalink | Comments (0)

Aberdeen on Coronial Inquests Following Acquittals

John M. Aberdeen has posted 'Blowed Off by a Side Wind?': Coronial Inquests Following Criminal Acquittals ((2016) 23 (3) Journal of Law and Medicine 595-608) on SSRN. Here is the abstract:

For three decades, Australian coroners have been moving steadily away from an historical partnership with the criminal law, and have emerged as independent judicial investigators with a dedicated court, and forensic and administrative support structures. Occasionally, however, a situation may arise where the ghosts of coronial law’s quasi-criminal past threaten to reappear, to the detriment of the coronial function. One of these situations might develop following an acquittal upon a criminal charge which involved the causing of a death. Issues pertaining to a coroner’s duty may remain unresolved following criminal proceedings; and the question has to be posed as to whether the result of the previous criminal prosecution restricts or confines, in any way, the scope of permissible findings by a coroner in a later inquest. This essay attempts to address this question in the particular context of Queensland law and its historical antecedents - many of which are common to other jurisdictions - in the hope that it might provoke consideration of the underlying practical and theoretical issues to the future benefit of coronial legal theory.

May 13, 2016 | Permalink | Comments (0)

Kang & Shepherd on Judicial Elections and Criminal Defendants

Michael S. Kang and Joanna Shepherd (Emory University School of Law and Emory University School of Law) have posted Judging Judicial Elections (Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections, 2015, Michigan Law Review, Vol. 114, No. 929, 2016) on SSRN. Here is the abstract:

Attacking Judges is the most comprehensive empirical assessment of judicial elections to date, right as judicial elections are under fevered criticism, and judicial campaign spending and attack advertising reach historical highs. Attacking Judges purports to debunk criticism of judicial elections with a thorough empirical analysis of judicial campaign spending, attack advertising, and election results for state supreme courts from 2002 to 2008. The book successfully undercuts overclaiming by critics of judicial elections that attack advertising demobilizes the electorate; that voters possess no substantive basis for voting on judicial candidates; and that attack advertising perniciously compromises partisan incumbents’ re-election prospects. However, the overarching portrayal of judicial elections that emerges from the book is closer to critical depictions than one would guess: the book dismisses worries about campaign spending and attack advertising in judicial elections because it demonstrates the “remarkable similarities between state supreme court elections and elections to other important offices in the United States.” Unfortunately, these remarkable similarities are, in a nutshell, the problem with judicial elections according to their critics.

We argue, once the book’s findings are coupled with our own new empirical work here on judicial elections, the resulting empirical picture cuts against the case for judicial elections rather than helping it. Our findings are based on a new dataset combining state supreme court decisions from 2008 to 2013, with data on attack advertising and information about every state supreme court justice. We find that as attack advertising in supreme court races increases in a state, the less likely justices in that state are to vote in favor of criminal defendants.

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May 13, 2016 | Permalink | Comments (0)