Friday, September 16, 2016
Evan D. Anderson and Scott Burris (Center for Public Health Initiatives, University of Pennsylvania and Temple University - James E. Beasley School of Law) have posted Policing and Public Health: Not Quite the Right Analogy (Journal of Policing & Society, (fall 2016), Forthcoming) on SSRN. Here is the abstract:
Policing matters to public health, and it makes sense to consider how greater cooperation and even integration between health and law enforcement systems might lead to new and better approaches to chronic problems at the intersection of health and security. The fact that policing is important to public health does not mean, however, that police work is 'like' public health work, let alone that police agencies and public health agencies share important features in culture and methods that might support better alignment. It may be more useful to focus on the similarities between policing and medicine. Medicine and policing devote most of their energies to addressing the acute needs of individuals, and have relatively little capacity to change upstream structural factors. Each is source of considerable incidental harm. Past and current efforts to align public health and medicine provide useful insights into work at the intersection of policing and public health. In this paper, we pursue analogies between policing and patient-centered care, preventing medical error, reducing over-utilization, and focusing care on high-risk patients. We conclude with an exploration of what a 'culture of health' would add to current police culture.
Thursday, September 15, 2016
W. Robert Thomas (Cleary Gottlieb Steen & Hamilton LLP) has posted When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now on SSRN. Here is the abstract:
The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.
Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution.
Jennifer L. Skeem, Patrick Kennealy, Joseph Tatar, Isaias Hernandez and Felicia Keith (University of California, Berkeley, Government of the State of Texas - Travis County Community Justice Services (TCCJS), Wisconsin Department of Corrections, Parajo Valley Unified School District and Uniformed Services University of the Health Sciences) have posted How Well Do Juvenile Risk Assessments Measure Factors to Target in Treatment? Examining Construct Validity (Forthcoming in Skeem, J., Kennealy, P., Tatar, J., Hernandez, I., & Keith, F., Construct Validity) on SSRN. Here is the abstract:
There has been a surge of interest in using one type of risk assessment instrument to tailor treatment to juveniles to reduce recidivism. Unlike prediction-oriented instruments, these reduction-oriented instruments explicitly measure variable risk factors as “needs” to be addressed in treatment. There is little evidence, however, that the instruments accurately measure specific risk factors. Based on a sample of 237 serious juvenile offenders (M age=18, SD=1.5), we tested whether California Youth Assessment Inventory (CA-YASI) scores validly assess the risk factors they purport to assess. Youth were assessed by practitioners with good interrater reliability on the CA-YASI, and by research staff on a battery of validated, multi-method criterion measures of target constructs. We meta-analytically tested whether each CA-YASI risk domain score (e.g., Attitudes) related more strongly to scores on convergent measures of theoretically similar constructs (e.g., criminal thinking styles) than to scores on discriminant measures of theoretically distinct constructs (e.g., intelligence, somatization, pubertal status). CA-YASI risk domain scores with the strongest validity support were those that assess criminal history. The only variable CA-YASI risk domain score that correlated more strongly with convergent (Zr=.35) than discriminant (Zr=.07) measures was Substance Use. There was little support for the construct validity of the remaining six variable CA-YASI risk domains — including those that ostensibly assess strong risk factors (e.g., “Attitudes,” “Social Influence”). Our findings emphasize the need to test the construct validity of reduction-oriented instruments — and refine instruments to precisely measure their targets so they can truly inform risk reduction.
Eyal Zamir, Elisha Harlev and Ilana Ritov (Hebrew University of Jerusalem - Faculty of Law, Hebrew University of Jerusalem, School of Law, Students and Hebrew University of Jerusalem - School of Education) have posted New Evidence About Circumstantial Evidence (Law & Psychology Review, Forthcoming) on SSRN. Here is the abstract:
Judicial fact-finders are commonly instructed to determine the reliability and weight of any evidence, be it direct or circumstantial, without prejudice to the latter. Nonetheless, studies have shown that people are reluctant to impose liability based on circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Proposed explanations for this reluctance have focused on factors such as the statistical nature of some circumstantial evidence and the tendency of fact-finders to assign low subjective probabilities to circumstantial evidence. However, a recent experimental study has demonstrated that even when such factors are controlled for, the disinclination to impose liability based on non-direct evidence — dubbed the anti-inference bias — remains.
The present Article describes seven new experiments that explore the scope and resilience of the anti-inference bias.
Wednesday, September 14, 2016
The Post Conviction Relief Act ("PCRA" or "the Act") provides a procedure for defendants to collaterally challenge their conviction or sentence. It is the sole means of obtaining state collateral relief. The PCRA has been broadly interpreted as creating a unified statutory framework for reviewing claims that were traditionally cognizable in state habeas corpus. The Act permits defendants in custody to seek relief when the conviction or sentence results in one or more of the Act's enumerated errors or defects and when the claimed error has not been waived or previously litigated on direct appeal or in a previous PCRA petition. Subject to several narrow exceptions, a petition under the Act must be filed within one year of the date the defendant's judgment of sentence becomes final. This article reports on a number of recent decisions of the Pennsylvania Supreme and Superior Court construing provisions of the Act.
Shachar Eldar and Elkana Laist (Ono Academic College Faculty of Law and Government of the State of Israel) have posted The Irrelevance of Motive and the Rule of Law (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
One of the maxims of criminal law orthodoxy states that a defendant’s motive for offending, be it good or bad, should have no weight in assessing his or her criminal liability – although it may rightfully bear on the punishment imposed. Known as the “irrelevance of motive principle”, this idea owes much of its popular stature in legal thinking to arguments that draw on the notion of the rule of law. It is said that allowing defendants’ motives to generate or negate their criminal liability would undermine the state’s authority in defining the contours of crime.
The article identifies and critically examines three streams of such arguments, and these in turn lead to three findings.
Gavin R. Tisdale (University of Connecticut, School of Law, Students) has posted A New Look at Constitutional Errors in a Criminal Trial (Connecticut Law Review, Vol. 48, No. 5, July 2016) on SSRN. Here is the abstract:
On appeal, an essential question in reviewing a constitutional error in a criminal trial is whether the error was a trial error or a structural error. The Supreme Court’s current framework for answering this question has led to widespread confusion and misapplication in both the courts and scholarship. In practice, that question — whether an error was trial error or structural error — can lead to antithetical results: structural error generally results in a new trial for the defendant without any showing of prejudice while trial error only requires the prosecution to prove that the error was harmless beyond a reasonable doubt. Given the contrast between these two results, it is necessary that the framework under which courts evaluate constitutional errors in a criminal trial uphold the purposes of appellate review.
Humans and the effects of their activities now substantially influence the entire planet, including its oceans, its climate, its atmosphere, and its lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period, the Anthropocene. The Anthropocene will surely have substantial effects on human societies and economies, and law will be no exception. The Anthropocene is the product of the aggregation of millions and billions of individual human actions, and human effects on global systems are exponentially increasing because of growing technology and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the major changes in oceans, climate, biodiversity, and other critical functions that human society depends upon. Human responses to the Anthropocene will ineluctably lead to greater government involvement in a wide range of human activities, and constant updating of government laws and regulations to respond to new challenges. The result will be pressures on a wide range of legal doctrines in public and private law, including torts, property, constitutional law, administrative law, and criminal law.
Alison J. Lynch and Michael L. Perlin (Disability Rights New York and New York Law School) have posted 'Life's Hurried Tangled Road': A Therapeutic Jurisprudence Analysis of Why Dedicated Counsel Must Be Assigned to Represent Persons with Mental Disabilities in Community Settings on SSRN. Here is the abstract:
Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. Wainwright and Argersinger v. Hamlin, and in state statutes and court cases implementing these US Supreme Court decisions. Such representation would best fulfill the Supreme Court’s goal of “restor[ing] constitutional principles established to achieve a fair system of justice” and ensuring that “every defendant stands equal before the law,” (Gideon, 372 U.S. 335, 344 (1963)) and would make it far less likely that this population would end up in jail or prison on minor, nuisance charges, as is so frequently the case today.
Myles Frederick McLellan (Algoma University) has posted Habeas Corpus and Innocence: A Remedy for the Wrongly Convicted on SSRN. Here is the abstract:
Once a conviction takes place, in the event that proof of innocence comes to light after all appeal routes have been exhausted, the wrongly convicted will have little opportunity to get that evidence before a court and will remain imprisoned. The elusive silver bullet of exculpatory DNA evidence may well give support to the post-appellate extraordinary remedy of ministerial review pursuant to.696.1 of the Criminal Code but evidence relative to the far more frequent incidents of mistaken eyewitness identification, false confessions, perjured jailhouse informant testimony or otherwise faulty forensic science will very likely never see the light of day in the criminal justice process. Therefore, when all else has failed, this paper proposes that “The Great Writ of Liberty” of habeas corpus as a fundamental error conviction device may well be the last best hope to get evidence of innocence before a court for the purposes of exoneration.
Tuesday, September 13, 2016
Mark A. Cohen (Vanderbilt University - Owen Graduate School of Management) has posted The 'Cost of Crime' and Benefit-Cost Analysis of Criminal Justice Policy: Understanding and Improving Upon the State-of-the-Art on SSRN. Here is the abstract:
The use of benefit-cost analyses by criminal justice researchers has slowly been increasing over the past 30 years. While still in its infancy, benefit-cost analyses of criminal justice policies have recently moved from the academic arena to actual use by policy makers. The growing use of benefit-cost analysis in crime policy tends to be lauded by economists; however, criminologists and legal scholars are less than unanimous in their views. A recent issue of Criminology and Public Policy on the “Role of the Cost-of-Crime Literature,” highlights this controversy. Two main themes can be distilled from critiques of the literature: first, the considerable uncertainty that exists in cost and benefit estimates; and second, the fact that important social costs are not being taken into account in current models. A related critique is that current methodologies to estimate the cost of crime are affected by income; bringing with it a concern that criminal justice policies based on a benefit-cost analysis will favor the rich.
Ann M. Eisenberg (University of South Carolina - School of Law) has posted Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2012 (Northeastern University Law Journal, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.
Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012.
Stephanos Bibas (University of Pennsylvania Law School) has posted Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules (Special report No. 186, Aug 2016) on SSRN. Here is the abstract:
Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history or policy.
Justice Scalia’s approach was perhaps most striking and counterintuitive in criminal law and procedure.
Jennifer Arlen and Marcel Kahan (New York University School of Law and New York University School of Law) have posted Corporate Governance Regulation Through Non-Prosecution (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
Over the last decade, federal corporate criminal enforcement policy has undergone a significant transformation. Firms that commit crimes are no longer simply required to pay fines. Instead, prosecutors and firms enter into pretrial diversion agreements (PDAs). Prosecutors regularly use PDAs to impose mandates on firms creating new duties that alter firms’ internal operations or governance structures. DOJ policy favors the use of such mandates for any firm with a deficient compliance program at the time of the crime. This Article evaluates PDA mandates to determine when and how prosecutors should use them to deter corporate crime. We find that the current DOJ policy on mandates is misguided and that mandates should be imposed more selectively. Specifically, mandates are only appropriate if a firm is plagued by “policing agency costs” — in that the firm’s managers did not act to deter or report wrongdoing because they benefitted personally from tolerating wrongdoing or from deficient corporate policing. Moreover, only mandates that are properly designed to reduce policing agency costs are appropriate. The policing agency cost justification for mandates that we develop thus calls into question both the extent to which mandates are used and the type of mandates that are imposed by prosecutors.
Jackson Polansky and Henry F. Fradella (Arizona State University (ASU) and Arizona State University - School of Criminology and Criminal Justice) have posted Does 'Precrime' Mesh with the Ideals of U.S. Justice? Implications for the Future of Predictive Policing (Cardozo Public Law, Policy and Ethics Journal, Forthcoming) on SSRN. Here is the abstract:
Both the short story and film Minority Report are premised on a Precrime unit that relies on the psychic abilities of human mutants who can predict the commission of crimes before they occur. Advances in technology suggest that the science fiction depicted in Minority Report may one day become a reality. This paper summarizes the ways in which the criminal justice system currently derives crime predictions and extrapolates from these methods how technology might one day allow police to intervene before crimes are committed with great regularity and accuracy. The paper contemplates how an actual precrime system would struggle to fit into the framework of inchoate crimes as they are currently defined, but might fit into a system of preventative detention that is not dramatically inconsistent with the approaches currently used in the United States. The implications for current conceptualizations of constitutional rights, including contemporary notions of privacy, are discussed.
Supporters of Stand Your Ground laws claim that these laws are necessary to protect public safety, but all available credible evidence indicates that these laws seriously undermine public safety. As the brainchild of the National Rifle Association (NRA), Stand Your Ground laws serve to merge self-defense and gun use in the American public imagination. The lethality and volatility of firearms make them poor instruments of self-defense, particularly in the hands of untrained individuals. The effects of Stand Your Ground laws on public safety are grim: more gun use, more aggression, and more deaths, none of which has had the slightest deterrent effect on crime rates. The laws have moreover widened the gap between the powerful and the marginalized, endangering vulnerable communities while reinforcing the privileges of those least at risk. Stand Your Ground proponents have cynically exploited Americans’ irrational fear of crime, carefully avoiding any acknowledgment of the racism, sexism, and classism that structures criminal victimization and violence. Encouraging people to resolve conflicts with firearms has unequal effects on the populations most vulnerable to violence, in particular women and minorities.
Monday, September 12, 2016
The 2016 election promises to be a turning point in the history of marijuana regulation in this country. Although the federal prohibition on all marijuana conduct remains in place, twenty-five states plus the District of Columbia currently authorize the medical use of marijuana and four states plus D.C. have legalized marijuana use by all adults. Many more states are expected to vote on marijuana law reform this fall and these numbers are almost certain to grow; the end of federal marijuana prohibition may soon be close at hand. But it is important to remember that federal drug policy – like the state-level drug reform that has preceded it – is not an all-or-nothing choice. Federal lawmakers will not choose between the current system under which marijuana is prohibited in all circumstances and for all purposes and a world in which there are no limits placed on how marijuana is produced, distributed, and consumed. My goal in this essay is to describe the current, tenuous status of marijuana under state and federal law and then to investigate the various alternatives to prohibition available to federal lawmakers seeking to reform the nation’s marijuana laws. I situate these alternatives on a continuum between the current federal prohibition and a relatively free market model similar to that in place in a state like Colorado. Each of these models will have pluses and minuses and it is important that lawmakers firmly establish their goals in moving away from the prohibition of marijuana; winners and losers will be chosen in this area far sooner than many realize.
Thanithia Billings has posted Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System (Boston College Law Review, Vol. 57, No. 4, 2016) on SSRN. Here is the abstract:
The decision to grant bail is the first contact that a judge has with a defendant. If a defendant is unable to pay the set bail amount, this inability affects nearly every aspect of the defendant’s case from beginning to end. Despite attempts to ensure insolvency does not solely determine pretrial detention, the current bail system, in many cases, ensures just that. Special interest groups, specifically the bail bond industry, oppose any reform efforts that aim to decrease the use of money in the administration of bail. Defendants unable to afford a bail bondsman can spend weeks, months, and sometimes years detained while awaiting their day in court. Law and public policy compels courts to secure bail only to the extent that it will guarantee a defendant’s appearance in court. This Note argues that in order to accomplish this, two important changes must occur. First, commercial bail bonds should be eliminated in favor of a system in which cash bail is not the default method of securing pretrial release. Second, all states should establish pretrial services agencies that aid courts in making bail determinations.
Edward J. Imwinkelried (University of California, Davis - School of Law) has posted Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent on SSRN. Here is the abstract:
This article relates to one of the most important issues in modern criminal evidence. The Supreme Court has held that the Eighth Amendment Cruel and Unusual Punishment clause prohibits criminally punishing persons for their status. The character evidence prohibition codified in Federal Rule of Evidence 404(b)(1) reinforces the Eighth Amendment clause. However, since evidence of an accused’s other misconduct can be devastating to the defense, prosecutors frequently attempt to introduce testimony about an accused’s other misconduct on an alternative, non-character theory of logical relevance under 404(b)(2). Rule 404(b) generates more published opinions than any other provision of the Federal Rules, and the most common use of uncharged misconduct evidence is to show the accused’s mens rea or intent.
In many cases in which the prosecution offers the evidence to show intent, the only arguable non-character is Dean Wigmore’s doctrine of objective chances.
Dan Priel (York University - Osgoode Hall Law School) has posted Criminalization and Welfare (Criminalization: Domestic and International Perspectives (Neha Jain & François Tanguay Renaud eds., Oxford University Press, 2017 Forthcoming)) on SSRN. Here is the abstract:
A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: Certain acts should be criminalized because they are moral wrongs; other acts may be criminalized (even though not morally wrong) for the sake of promoting overall welfare. This paper aims to show two things: First, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. More importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.