CrimProf Blog

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

Wednesday, March 15, 2017

Ryo on Legal Attitudes of Immigrant Detainees

Ryo emilyEmily Ryo (University of Southern California Gould School of Law) has posted Legal Attitudes of Immigrant Detainees (51 Law & Society Review 99 (Forthcoming)) on SSRN. Here is the abstract:

A substantial body of research shows that people’s legal attitudes can have wide-ranging behavioral consequences. In this paper, I use original survey data to examine long-term immigrant detainees’ legal attitudes. I find that the majority of detainees express a felt obligation to obey the law, and do so at a significantly higher rate than other U.S. sample populations. I also find that the detainees’ perceived obligation to obey U.S. immigration authorities is significantly related to their evaluations of procedural justice, as measured by their assessments of fair treatment while in detention. This finding remains robust controlling for a variety of instrumental and detainee background factors, including the detainees’ experiences with the legal system and legal authorities in their countries of origin. Finally, I find that vicarious procedural justice evaluations based on detainees’ assessments of how others are treated are as important to detainees’ perceived obligation to obey U.S. immigration authorities as their personal experiences of fair or unfair treatment. I discuss the broader implications of these findings and their contributions to research on procedural justice and legal compliance, and research on legal attitudes of noncitizens.

March 15, 2017 | Permalink | Comments (0)

Tuesday, March 14, 2017

Gold on "Clientless" Lawyers

Gold russellRussell M. Gold (Wake Forest University - School of Law) has posted 'Clientless' Lawyers (Washington Law Review, Vol. 92, 2017, Forthcoming) on SSRN. Here is the abstract:

Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make—and indeed that legal ethics rules would expressly require clients to make in other contexts—such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.

More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.

March 14, 2017 | Permalink | Comments (0)

Knight et al. on Louisiana's Reentry Court

William Knight, Caroline Cooper and David B. Wexler (St. Tammany Parish Government, Justice Consultant, Researcher and University of Puerto Rico - School of Law) have posted Louisiana Reentry Court Promotes Seamless Transition between Sentencing, Incarceration and Post Release Services – Some Potential Exportable Elements on SSRN. Here is the abstract:

This article describes a reentry court program with a number of unusual and “exportable” features that was first established in Louisiana’s 22nd Judicial District (St. Tammany and Washington Parishes) and now being implemented statewide. Under the leadership of Judge William Knight, the program targets “high risk/high needs” offenders with multiple prior felony convictions for nonviolent property and substance abuse offenses who often face prison sentences of 10-25 years but, pursuant to specially enacted legislation, are released after serving two years in prison to then participate in the community-based reentry court program. Among the program’s noteworthy features include: (1) the use of “split sentencing” permitting the sentencing judge to retain jurisdiction following prison release, with the sentencing judge also serving as the reentry court judge retaining supervision authority and ability to support the defendant’s efforts to achieve post-release program goals; (2) seamless transition from institutional confinement to community based services, with the defendant being brought to the court and the sentencing/reentry judge upon release; (3) continuity of the participant/case management relationship from sentencing through incarceration with regular visits of the case manager while he/she is incarcerated; (4) on-going multi-agency collaboration to provide the sentencing, service delivery and supervisory framework for the program; (5) public/private partnerships to promote a continuum of care starting at sentencing through program completion and aftercare, including housing, education, job training, job placement, and family/community support; and (6) regular status hearings conducted by the sentencing/reentry court judge at the prison during the period of incarceration to establish clear expectations for the participant while he or she is incarcerated and to solidify the connection and relationships between the court and the participant prior to release.

March 14, 2017 | Permalink | Comments (0)

Kaplan et al. on The Cost of Oregon's Death Penalty

Aliza B. Kaplan, Peter A. Collins and Venetia L. Mayhew (Lewis & Clark Law School, Seattle University and Lewis & Clark College, Law School, Students) have posted Oregon's Death Penalty: A Cost Analysis on SSRN. Here is the abstract:

The primary goal of this study was to estimate the economic costs associated with aggravated murder cases that result in death sentences and compare those costs to other aggravated murder cases, the majority of which resulted in some form of a life sentence, in the state of Oregon. Importantly, Oregon law does not require the prosecution to file a formal notice indicating whether or not the state will seek the death penalty in aggravated murder cases. Therefore, all aggravated murder cases are treated as death penalty cases, likely inflating the average cost of aggravated murder cases that do not result in a death sentence. In order to provide a bit more context, we include costs for non-aggravated cases where defendants were charged with a lesser charge of murder, in categories where data were both available and reliable. The following are the main findings from the study, presented by total (includes all cost categories), then by individual cost category.

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March 14, 2017 | Permalink | Comments (0)

Cummings on Solutions to Racial Challenges

Cummings andreandré douglas pond cummings (Indiana Tech - Law School) has posted ‘Lord Forgive Me, but He Tried to Kill Me’: Proposing Solutions to the United States’ Most Vexing Racial Challenges (13 Wash. & Lee J. Civ. Rts. & Soc. Just. 3 (2016)) on SSRN. Here is the abstract:

While great progress has been made in the United States in the past fifty years in connection with race relations, three critical issues continue to vex our nation. The United States, despite its progress, continues to struggle mightily with (a) the police killing of unarmed black men; (b) racially disproportionate mass incarceration; and (c) violent homicides of black men and boys. Nightly newscasts detail seemingly weekly killings of unarmed African American men by law enforcement officers. Mass incarceration, while plateauing in the last several years, continues to see millions of United States citizens incarcerated at rates unmatched by any other country in the world. Those incarcerated are disproportionately African American and Latino males jailed for non-violent drug and property crimes. Statistics show that African American citizens suffer 55 percent of all homicide deaths in the United States while making up just 13 percent of the population. In nearly every major city in the United States, African American males constitute 65 to 75 percent of those homicide deaths while often making up a small percentage of those cities’ populations. These homicide statistics are so dramatic, it appears that an epidemic is occurring in the U.S.

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March 14, 2017 | Permalink | Comments (0)

Monday, March 13, 2017

McGlynn et al. on Out-of-Court Resolutions of Domestic Violence Cases

Clare McGlynn, Kelly Johnson and Nicole Westmarland (Durham Law School, Durham University, Durham University - School of Applied Social Sciences (SASS) and Durham University) have posted Under the Radar: The Widespread Use of ‘Out of Court Resolutions’ in Policing Domestic Violence and Abuse in the United Kingdom (2017) British Journal of Criminology ((2017) British Journal of Criminology) on SSRN. Here is the abstract:

The suitability of ‘out of court resolutions’ (restorative justice and community resolutions) in cases of domestic abuse is theoretically contentious and empirically under-researched. This study investigated the nature and extent of out of court resolutions for domestic abuse using the Freedom of Information Act. Out of court resolutions were used by every UK police force except Scotland to respond to over 5,000 domestic abuse incidents (including intimate partner abuse) in 2014. Some of these incidents related to offences with sentencing tariffs up to life imprisonment. Such widespread use has been taking place ‘under the radar’ in stark contrast to police guidance, has immediate implications for policy and practice, and fundamentally shifts the research terrain in this field.

March 13, 2017 | Permalink | Comments (0)

Kaplan & Saack on Nonunanimous Jury Verdicts

Aliza B. Kaplan and Amy Saack (Lewis & Clark Law School and Lewis & Clark College, Law School, Students) have posted Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System (Oregon Law Review, Vol. 95, No. 1, 2017) on SSRN. Here is the abstract:

This Article argues that criminal convictions in state courts should be subject to the same unanimity requirements that the Sixth Amendment imposes on federal criminal convictions. Part I of this Article provides an overview of the U.S. Supreme Court’s jurisprudence on jury size and nonunanimity. Part I includes a discussion of Apodaca v. Oregon and Johnson v. Louisiana, the Court’s 1972 decisions holding that the Sixth and Fourteenth Amendments did not require jury unanimity in state court criminal jury trials even though federal law requires that federal juries must reach criminal verdicts unanimously. This is followed by a summary of many of the recently denied certiorari petitions that have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and social science evidence. Part II explains how the Court’s recent jurisprudence contradicts its 1972 Apodaca and Johnson rulings under the doctrine of incorporation.

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March 13, 2017 | Permalink | Comments (0)

Hamilton on Sex Offenders and Ex Post Facto Laws

Hamilton melissaMelissa Hamilton (University of Houston Law Center) has posted Constitutional Law and the Role of Scientific Evidence (Boston College Law Review, Vol. 58, No. E. Supp., 2017) on SSRN. Here is the abstract:

In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.

March 13, 2017 | Permalink | Comments (0)

Sunday, March 12, 2017

Deitch on Retributivism

Brittany L. Deitch has posted Retributivism's Conjoined Twins Problem (53 Crim. L. Bull. ____ (2017) (Forthcoming) on SSRN. Here is the abstract:

Retributivism holds twin duties to punish all who are guilty and none who are innocent. This Article introduces a novel problem to the centuries-old debate on the retributivist justification of punishment. Using the problem of conjoined twins, where only one has committed a crime, this Article demonstrates retributivism’s inadequacy to serve as a comprehensive theory of punishment. Because the twins are conjoined, any punishment inflicted upon the guilty twin will necessarily be imposed upon the innocent. Applying retributivism’s core tenets to resolve the problem proves impossible. After considering all possible solutions to the problem, retributivists are left with no choice but to violate one of retributivism’s core duties. The retributivist must either punish the guilty and violate his negative duty not to punish the innocent, or forgo punishing the innocent and violate his positive duty to punish the guilty.

March 12, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 375 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie, Andre Davis,David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Anthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 [new to top ten]
2 353 Law and Moral Dilemmas
Bert I. Huang
Columbia Law School
Date posted to database: 9 Jan 2017 [1st last week]
3 127 From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
Anna Tzanaki
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017 [2nd last week]
4 95 Neuroethics: Neurolaw
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [3rd last week]
5 88 Punishment and Moral Risk
Adam J. Kolber
Brooklyn Law School
Date posted to database: 10 Jan 2017 [4th last week]
6 83 McDonnell and the Criminalization of Politics
George D. Brown
Boston College Law School
Date posted to database: 2 Feb 2017 [5th last week]
7 81 Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs
Sahar F. Aziz
Texas A&M University School of Law
Date posted to database: 9 Feb 2017 
8 65 Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 7 Feb 2017 [10th last week]
9 63 Penal Populism: The End of Reason
John Pratt and Michelle Miao
Victoria University of Wellington - Institute of Criminology and The Chinese University of Hong Kong, Faculty of Law
Date posted to database: 24 Jan 2017 [new to top ten]
10 61 The Legal Consequences of Noncompliance with Federal Tax Laws
Allen D. Madison
University of South Dakota Law School
Date posted to database: 10 Feb 2017 [new to top ten]

March 12, 2017 | Permalink | Comments (0)

Saturday, March 11, 2017

Schehr et al. on Wrongful Conviction

Robert Schehr, Aliza B. Kaplan and Valena Elizabeth Beety (Northern Arizona University, Lewis & Clark Law School and West Virginia University - College of Law) have posted Contemporary Perspectives on Wrongful Conviction: An Introduction to the 2015 Innocence Network Conference, Orlando, Florida (3 Tex. A&M L. Rev. 179 (2015)) on SSRN. Here is the abstract:

The Innocence Network is “an affiliation of organizations from all over the world dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, and working to redress the causes of wrongful convictions.” Beginning in 1999 and 2000 in Chicago, Illinois, a small group of interested legal and social science scholars and clinic directors met at the Northwestern University School of Law to discuss ways to investigate and litigate claims of actual innocence. The first recognized National Innocence Conference took place at the California Western School of Law in 2002, and included 130 registered attendees. The Innocence Network, building upon the successful 2002 conference, formally established an advisory Board of Directors in 2005. An annual Innocence Network conference has been held each year since 2002, with the May 2015 conference in Orlando, Florida, generating more than 500 attendees, including 150 exonerees.

March 11, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 484 Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017 
2 374 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie,Andre Davis, David L. Faigman, Morris B. Hoffman,Owen D. Jones, Read Montague, Stephen Morse,Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson andAnthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 [new to top ten]
3 208 The Progressive Prosecutor's Handbook
David Alan Sklansky
Stanford University
Date posted to database: 15 Feb 2017 [2nd last week]
4 174 In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Scott Meisler
Date posted to database: 10 Jan 2017 [3rd last week]
5 157 The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Date posted to database: 14 Feb 2017 [4th last week]
6 140 When Interviewing Children: A Review and Update
Karen J. Saywitz, Thomas D. Lyon and Gail S. Goodman
University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis
Date posted to database: 5 Jan 2017 [5th last week]
7 140 Machine Testimony
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 7 Jan 2017 
8 114 Constitutional Reasonableness
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 23 Jan 2017 
9 107 Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 [new to top ten]
10 101 The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow and Ankur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 [9th last week]

March 11, 2017 | Permalink | Comments (0)

Friday, March 10, 2017

Pamela R. Metzger to lead SMU's Deason Family Criminal Justice Reform Center

The press release follows the jump.

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March 10, 2017 | Permalink | Comments (0)

Chao et al. on Why Courts Fail to Protect Privacy

Bernard Chao, Catherine S. Durso, Ian P. Farrell and Christopher T. Robertson (University of Denver Sturm College of Law, University of Denver, University of Denver Sturm College of Law and University of Arizona - James E. Rogers College of Law) have posted Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology (California Law Review (Forthcoming)) on SSRN. Here is the abstract:

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

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March 10, 2017 | Permalink | Comments (0)

Diamantis on Punishing the Right Corporation

Mihailis Evangelos Diamantis (University of Iowa, College of Law) has posted Sticky Liabilities: Corporate Essence and Identity in Criminal Law on SSRN. Here is the abstract:

How can you tell whether you are punishing the right corporation? Though central to corporate criminal justice, theorists have yet to address this basic question. Without a theory of how corporate identity persists through time, we cannot be sure that the corporation we punish today is the same as the corporation that committed the past crime. Nor can we even know how to go about finding the answer. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us to think an answer is always easy to come by. The issue becomes much more complicated when corporate criminals undergo any number of very common transformations—rebranding, spinning-off, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among corporations trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity that achieves the deterrent, rehabilitative, and retributive purposes of criminal law. Along the way, it draws together threads from law, philosophy, and cognitive science bearing on identity through time.

March 10, 2017 | Permalink | Comments (0)

van Oorschot et al. on Remorse in Context(s)

Irene van Oorschot, Peter Mascini and Don Weenink (Erasmus University Rotterdam, Faculty of Social Sciences, Erasmus University Rotterdam (EUR) - Erasmus School of Law and University of Amsterdam) has posted Remorse in Context(S): A Qualitative Exploration of the Negotiation of Remorse and its Consequences (Social & Legal Studies, 2017 (This is a pre peer reviewed version of the published article)) on SSRN. Here is the abstract:

The presence or absence of ‘signs of remorse’ is often understood to have consequences for judges’ sentencing decisions. However, these findings raise the questions, firstly, how ‘remorse’ is communicated and demonstrated by defendants within court settings, and secondly, whether remorse plays a uniform role across and between various offense and offender types. Drawing on ethnographic data gathered in a Dutch criminal court, we contextualize remorse to answer these questions. First, we embed the performance of remorse in the court context, where defendants have to negotiate potentially competing legal and moral narrative demands. Second, we draw attention to the context of three different typified whole-case narratives, within which defendants' performances of remorse assume differential levels of importance. In doing so we seek to complicate binary portrayals of the role and consequences of remorse, arguing for a more holistic and narrative understanding of sentencing practices.

March 10, 2017 | Permalink | Comments (0)

Thursday, March 9, 2017

Aydin-Aitchison on Police and Persecution

Andy Aydın-Aitchison (University of Edinburgh - School of Law) has posted Police and Persecution in the Bosnian Krajina: Democratisation, Deprofessionalisation and Militarisation (Criminal Justice Issues, vol 14, no. 5-6, pp. 1-19) on SSRN. Here is the abstract:

The paper examines processes leading to police participation in ethnic violence. This is often taken for granted and under-explored in criminological literature which assumes that police, as part of the state monopoly of violence, are inevitable partners in ethnic violence. The paper also contributes to a growing body of work using the rich resources provided by the ICTY and other courts dealing with atrocity crime (Buss 2014; Bećirević 2014; Komar 2008; Mullins 2009). The methodological implications of using these sources are rarely discussed. This paper addresses that gap.

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March 9, 2017 | Permalink | Comments (0)

Sprick on Chinese Suppression of Transnational Crime

Daniel Sprick has posted One Belt, One Road: Many Routes for Transnational Crime and Its Suppression in China (Lutz-Christian Wolff and Xi Chao (Eds.), Legal Dimensions of China’s Belt and Road Initiative. Hong Kong: Wolters Kluwer, 2016) on SSRN. Here is the abstract:

Among the many objectives of China’s “One Belt, One Road” (OBOR) initiative, the creation of new opportunities for trade and investment and thereby boosting economic development in the region must be considered the central pillar. Although OBOR will probably be a stimulus to the economy in the region, there may be some unintended consequences. In a recent study the United Nations Office on Drugs and Crime (UNODC) pointed towards OBOR, among other inter-regional projects of economic integration, as a typical facilitator of severe transnational crimes such as drug smuggling and human trafficking. The UNODC study clearly shows the necessity and explicitly recommends the incorporation of risk assessment, developing safeguard policies and strengthening cross-border cooperation of law enforcement. Hence, the OBOR initiative should address the issue of cross-border crime along with its prevention and suppression. This paper considers how China is meeting these recommendations. For this purpose, it briefly introduces the concept of transnational crime in contrast to international crime in its strictest sense and then explores the relationship between cross-border crime and economic integration. Furthermore, it elaborates on China’s approach to and involvement in substantial and procedural issues of transnational criminal law in the geographical context of OBOR. Finally, it offers a tentative evaluation of China’s efforts to suppress cross-border crime.

March 9, 2017 | Permalink | Comments (0)

Pernell on Racial Justice and Federal Habeas

Pernell leroyLeRoy Pernell (Florida A&M University - College of Law) has posted Racial Justice and Federal Habeas Corpus as Post-Conviction Relief from State Convictions on SSRN. Here is the abstract:

It is the purpose of this article to not simply document the influence of race on our criminal system and its role in the current racial crisis of over-representation in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity – Federal Habeas Corpus as a post-conviction remedy.

By looking first at how race served at the root of a procedural due process reform, begun in earnest during the Warren Court, this article will then note the importance played by federal habeas corpus as a post-conviction remedy as well as the unique nature and suitability of this “extraordinary writ” to bring about transformative change

March 9, 2017 | Permalink | Comments (0)

Bierschbach & Bibas on Rationing Criminal Justice

Richard A. Bierschbach and Stephanos Bibas (Yeshiva University - Benjamin N. Cardozo School of Law and University of Pennsylvania Law School) have posted Rationing Criminal Justice (Michigan Law Review, Vol. 116, No. 2 (2017, Forthcoming)) on SSRN. Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 9, 2017 | Permalink | Comments (0)