Wednesday, June 22, 2016
Jeffrey Fagan , Tom Tyler and Tracey Meares (Columbia Law School, Yale University - Law School and Yale University - Law School) have posted Street Stops and Police Legitimacy in New York (in Jacqueline E. Ross and Thierry Delpeuch (eds.), Comparing the Democratic Governance of Police Intelligence: New Models of Participation and Expertise in the United States and Europe 203 (2016)) on SSRN. Here is the abstract:
Police-initiated citizen encounters in American cities often are non-neutral events. Encounters range from routine traffic stops to police interdiction of pedestrians during their everyday movements through both residential and commercial areas to aggressive enforcement of social disorder offenses. As a crime detection and control strategy central to the “new policing,” these encounters often are unproductive and inefficient. They rarely result in arrest or seizure of contraband, and often provoke ill will between citizens and legal authorities that discourages citizen cooperation with police and compliance with law. In this chapter, we describe the range of potentially adverse reactions or harms that SQF or ‘street’ policing may produce. We next link those harms to a broader set of normative concerns that connect dignity, harm and police legitimacy. In the third section we review the evidence that connects citizen views of police – as well as their experience with police – to their perceptions of the legitimacy of the police and criminal legal institutions generally. We also review the evidence that links those perceptions to how citizens behave with respect to law, and identify the consequences of adverse reactions of citizens to harsh forms of street policing. We discuss alternative frameworks for regulation and democratic control of the new policing to link police legitimacy with guardianship of communities.
Tuesday, June 21, 2016
Mark Walters and Jessica Tumath (University of Sussex Law School and University of Sussex) have posted Gender ‘Hostility’, Rape, and the Hate Crime Paradigm (Modern Law Review, Vol. 77(4), pp. 563-596, 2014) on SSRN. Here is the abstract:
This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels which exist (both conceptually and evidentially) between gender-motivated violence and other types of hate crime. It is argued that where clear evidence of gender hostility exists, defendants should be pursued in law additionally as hate crime offenders. While various practical, and to a lesser extent conceptual, problems persist – including difficulties in proving gender-based hostility, the issue of multiple and intersecting prejudices, and the potential for overwhelming the hate crime policy domain – the article asserts that the inclusion of gender within hate crime law will serve as a valuable tool in combating gendered violence. In particular, it is argued that by focusing on the hate-motivation of many offenders of sexual violence, the criminal justice system can move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes. These are prejudices which have also given rise to invidious stereotypes about women and myths about rape victims that have historically inhibited the successful prosecution of offenders.
Helena Morão (University of Lisbon - School of Law) has posted Neuroethics and Criminal Responsibility – A Criminal Law Comment on Neil Levy's Consciousness and Moral Responsibility (Anatomy of Crime - Journal of Law and Crime Sciences, 3, 2016, Forthcoming) on SSRN. Here is the abstract:
This comment focuses on the implications of mind sciences research and of neuroethical thought for a desert-based theory of penal liability, particularly in the criminal law’s voluntary act requirement. Based on an analysis of Neil Levy’s Consciousness and Moral Responsibility, and taking into account the example of sleepwalking, we argue a criminal (ir)responsibility solution for the problem case of somnambulist behaviour in line with the normative constitutional principles of equality, proportionality, guilt and harm.
Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations. Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case. This article has two purposes. One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence. And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.
Mark Walters (University of Sussex Law School) has posted Readdressing Hate Crime: Synthesizing Law, Punishment and Restorative Justice (Hate, politics, law, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This chapter offers an alternative vision of the utility of hate crime legislation by arguing for the maintenance of laws that proscribe hate-motivated offences but which do not impose enhanced penalties. It is argued that the punitive approach to hate crime is counter-intuitive to the task of preventing hate from proliferating in society. The chapter contends that while the criminal law provides an important declaratory function in condemning these public wrongs, it need not be backed by punitive sanctions, which act mostly to alienate and exacerbate the problem of hate crime. The chapter expounds (tentatively) upon an alternative approach to criminal intervention that is based on a symbiosis of law, the threat of punishment and restorative justice (RJ). Note that it is not the aim of this chapter to examine the benefits and limitations of RJ for hate crime3, but rather the key purpose is to develop a theoretical framework that supports the enactment of hate crime laws which are primarily supported by reparative interventions.
Orin Kerr has this post at ScotusBlog on Monday's Supreme Court decision. In part:
I suspect that this case will become most known for Part IV of Justice Sonia Sotomayor’s dissent. Citing sources ranging from Ta-Nehisi Coates to Michelle Alexander, Sotomayor gives voice to the anger and frustration of social movements such as Black Lives Matter. According to Sotomayor, the majority opinion “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” The voices of those “who are routinely targeted by police . . . are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.” “Until their voices matter too,” she concludes, “our justice system will continue to be anything but.” That section will make her a hero in some circles and a subject of intense criticism in others. Notably, however, no other Justice joined this section of her opinion.
This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account largely takes for granted the unmitigated benefit of more data and more information. I argue that Crespo’s account understates the indeterminacy of systemic facts and the ways in which data rely on interpreters and interpretations. To the extent our criminal justice system already suffers from the assumptions and biases of judges and other official actors, granting those same actors the ability to interpret a wealth of data or “facts” need not dictate a move toward greater justice or greater accuracy. Rather, it might allow the same actors to reach the same decisions, supported by the same underlying assumptions, but bolstered by a powerful new dataset. Ultimately, systemic factfinding might highlight the problems with criminal courts, but it would not necessarily provide a vehicle for reform or redress.
andré douglas pond cummings and Adam Lamparello (Indiana Tech - Law School and Indiana Tech - Law School) have posted Private Prisons and the Marketplace for Crime (Wake Forest Journal of Law & Policy, Forthcoming) on SSRN. Here is the abstract:
A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.
At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice.
“Big data” — the collection and statistical analysis of numerous digital data points — has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely-dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, no lucrative market for the data (apart from that for background checks) exists to induce the private sector to step in to fill the gap. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box” by uniformly collecting and reporting basic, anonymized data from criminal cases — including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition — would have significant benefits. It would allow researchers, reformers, and government actors to both more effectively study the system as a whole and to more easily identify jurisdictions violating the Constitution by, for example, routinely denying counsel or pretrial release and imprisoning defendants for inability (rather than unwillingness) to pay a fine or fee. This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. While participation in this uniform system is likely to be incremental, even partial data would improve our understanding of the system as a whole and aid efforts to enforce well established, but frequently violated, constitutional rights.
Monday, June 20, 2016
Ben Bradford , Jenna Milani and Jonathan Jackson (University of Oxford - Centre for Criminology , University of Oxford - Centre for Criminology and London School of Economics & Political Science - Department of Methodology) have posted Identity, Legitimacy and ‘Making Sense’ of Police Violence on SSRN. Here is the abstract:
This paper examines the extent to which police legitimacy and social identity predict public acceptance of police use of force. The study draws upon cross-sectional data from a 2015 survey of a representative sample of adults in England & Wales. Structural equation modeling is used to model conditional correlations between latent constructs. There are two main results. First, identifying more strongly with a social group that the police plausibly represent to people was consistently associated with greater acceptance of police use of force, whether or not that force seemed to be legally justified. Second, beliefs about the legitimacy of the police were associated with acceptance, but primarily in relation only to the use of force in situations where it appeared prima facie justifiable. Results suggest one possible set of reasons explaining why police retain public support in the face of scandals concerning excessive use of force. In terms of originality, this is one of only a very few investigations into (a) the association between legitimacy and public acceptance of apparently illegal or unethical police action and (b) the extent to which identification with a particular social group predicts judgments of police behavior. It is also one of the few papers that has explored the possibility of perverse outcomes arising from procedurally just policing.
This article introduces some documents relating to Ex parte Quirin and then explains where they have been for the last 70-plus years. Quirin is the case in which the U.S. Supreme Court – in a hurried summer session in July 1942 – upheld President Franklin D. Roosevelt’s creation of an unusual military commission to try eight Nazi saboteurs under a special set of rules. The documents are memos written to Chief Justice Harlan Fiske Stone by his senior law clerk, Bennett Boskey, while the Court was hearing and deciding and opining on Quirin.
From The New York Times:
Questioned by the police four days later, Mr. Vandenburg acknowledged that he had watched the attack. “She got sexually assaulted right in front of me. And I didn’t do anything,” he said during the interrogation, according to The Tennessean. “I should’ve called someone.”
Mr. Vandenburg’s defense argued that he was intoxicated and could not be held responsible for his teammates’ actions.
While the state did not accuse Mr. Vandenburg of touching the woman, it argued that he coaxed others to do so. In that regard, said Tom Thurman, the deputy district attorney general, the videos taken by Mr. Vandenburg, some of which were recovered by investigators and shown during the trial, established his culpability beyond any doubt.
The New York Senate[official website] on Saturday passed a bill [S6305] to legalize fantasy sports amid national concerns that the activity qualifies as illegal gambling. The bill would require [NYT report] frequent and highly-skilled players to sufficiently identify themselves online to prevent them from taking advantage of casual players. Fantasy sports sites would also be required to give 15.5 percent of their profits to an education fund managed by the state lottery. While Attorney General Eric Schneiderman [official profile] has been an avid opponent of the fantasy sport industry, he allowed legislators to handle the matter and has remained neutral to the bill so far. Schneiderman, however, has expressed his intention to continue legal action against industry leaders DraftKings and FanDuel [official websites]. The bill now awaits approval from Governor Andrew Cuomo [official profile] who has suggested support through modification propositions.
From The New York Times:
FRANKFURT — The investigation into Volkswagen’s vast emissions scandalreached the top echelon of management for the first time after German prosecutors said on Monday that they were looking into the carmaker’s former chief executive and a member of the management board for possible violations of securities laws.
. . .
The investigation threatens to undermine the main defense of the company, which admitted last year to installing illegal software in 11 million cars to cheat emissions tests.
Since then, the carmaker has insisted that top management was not aware of the cheating software, known as a defeat device, until shortly before the disclosure of the deception in September. Instead, the company has cast the blame on a small group of middle managers suspected of installing the software, starting with the 2009 models.
Andrew Manuel Crespo (Harvard Law School) has posted Systemic Facts: Toward Institutional Awareness in Criminal Courts (129 Harv. L. Rev. 2049) on SSRN. Here is the abstract:
Criminal courts are often required, in the course of implementing existing doctrines of constitutional criminal law, to regulate other institutional actors within the criminal justice system — most notably, prosecutors and police officers. The one-off nature of constitutional criminal adjudication, however, often impedes such regulation, in part by denying courts an opportunity to “see” the systemic features of law enforcement behavior. This mismatch between criminal courts’ institutional task and their institutional capacity has inspired efforts to identify other means of addressing systemic failings of American criminal justice — including calls for a pivot to law enforcement self-regulation as a primary means of constraining state power in the criminal justice arena. The true capacity of criminal courts, however, has thus far been significantly underappreciated. For at an institutional level, criminal courts are not only deeply and serially engaged with the very governmental entities that constitutional criminal law seeks to regulate, but are also constantly collecting — often in a digital format readily amenable to organization, search, and analysis — valuable and detailed systemic facts about how other criminal justice actors operate. This information extends far beyond the truncated transactional horizon of a given case, and thus could allow courts to access a deep internal well of institutional knowledge about their local criminal justice systems. Uncovering the hidden potential of this latent institutional knowledge raises important questions about the opportunities for — and the responsibilities of — criminal courts to collect systemic facts, to analyze them, to make them transparent to litigants and to the public, and to integrate them into the process of constitutional criminal adjudication.
Corinna Lain (University of Richmond - School of Law) has posted Following Finality: Why Capital Punishment is Collapsing Under Its Own Weight (Forthcoming in Final Judgments: The American Death Penalty and the Law (Sarat, ed.)) on SSRN. Here is the abstract:
This essay, a chapter in the forthcoming book Final Judgements: The American Death Penalty and the Law (Austin Sarat, ed.), discusses the role of finality in the death penalty’s decline over the past two decades. Well before that decline, in the early years of the modern death penalty era, the Supreme Court’s recognition that death is different in its finality led to developments to ensure that we get the death penalty right — constitutional regulation, habeas litigation, and the rise of a specialized capital defense bar to navigate those complicated structures. Over time, these developments led to a massive time lag between death sentence and execution, and with it, the discovery of innocents among the condemned, skyrocketing costs, and concerns about the conditions of long-term solitary confinement on death row. These developments, in turn, have led to a number of cascading effects — falling death sentences and executions, penological justifications that no longer make sense, and a growing number of states concluding that capital punishment is more trouble than it is worth. In the end, the finality of capital punishment is what makes it so rarely final, and so costly, cumbersome, and slow that it is collapsing under its own weight.
Sunday, June 19, 2016
|1||231||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 [4th last week]
University of Arizona Rogers College of Law
Date posted to database: 25 Apr 2016 [5th last week]
|3||178||It's Too Complicated: The Technological Implications of IP-Based Communications on Content/Non-Content Distinctions and the Third Party Doctrine
Steven M. Bellovin, Matt Blaze, Susan Landauand Stephanie K. Pell
Columbia University - Department of Computer Science, University of Pennsylvania - School of Engineering & Applied Science, Worcester Polytechnic Institute and West Point--Army Cyber Institute
Date posted to database: 8 Jun 2016 [new to top ten]
|4||176||Why Vague Sentencing Guidelines Violate the Due Process Clause
Government of the United States of America - U.S. District Court for the District of Oregon
Date posted to database: 1 May 2016 [6th last week]
|5||170||The Heavy Costs of High Bail: Evidence from Judge Randomization
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
Date posted to database: 6 May 2016 [7th last week]
|6||168||The Nature and Function of Prosecutorial Power
David Alan Sklansky
Date posted to database: 27 Apr 2016 [9th last week]
|7||138||The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe
University of Toronto, Faculty of Law, Students
Date posted to database: 24 May 2016 [new to top ten]
|8||136||Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops
University of Pennsylvania Law School
Date posted to database: 7 May 2016
|9||116||Penal Welfare and the New 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
Date posted to database: 8 May 2016 [new to top ten]
|10||119||False Confessions in the Twenty-First Century
Richard A. Leo and Brian L. Cutler
University of San Francisco - School of Law and University of Ontario Institute of Technology (UOIT)
Date posted to database: 5 May 2016
More than 40 prosecutors in Virginia filed an amicus brief [text, PDF] Friday in support of a challenge to the governor's executive action[JURIST report] to restore voting rights to more than 200,000 felons individuals in the state. The prosecutors argue that the governor's actions are not only in violation of the Virginia constitution but also an issue of public safety. They are concerned that the restoration of felon voting rights will create an undue burden for them to discharge their duties. For instance, they argue that the current process of review burdens their resources by trying to identify felons in the jury selection process[.]