Sunday, May 15, 2016
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]
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
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
Yeshiva University - Benjamin N. Cardozo School of Law
Date posted to database: 6 Apr 2016 [new to top ten]
Saturday, May 14, 2016
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.
|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'
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
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
Friday, May 13, 2016
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.
Bruce 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?”
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.
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.
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.
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.
Thursday, May 12, 2016
Paul Marcus , Carol A Brook , Bruno Fiannaca , David John Harvey , Jenny McEwan and Renee Pomerance (William & Mary Law School , Government of the United States of America - U.S. District Court for the Northern District of Illinois , Supreme Court of Western Australia , University of Auckland , University of Exeter and Ontario Superior Court of Justice) have posted A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States (William & Mary Law Review, Vol. 57, 2016) on SSRN. Here is the abstract:
In a world where the vast majority of criminal cases are resolved through some means other than the popularly depicted criminal trial, it is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different mechanisms for criminal case resolution in different nations. This Article developed through a series of conversations (and ultimately a panel discussion) between six international criminal justice professionals — practicing attorneys, scholars, and judges — regarding the nature and effects of plea bargaining (and its comparative substitutes) in their respective countries. Providing a comparative look at different mechanisms for criminal case resolution, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England, New Zealand, and the United States.
Wednesday, May 11, 2016
In "The Consequences of Error in Criminal Justice," I analyzed and critiqued the "Blackstone principle" — shorthand for the common intuition that a criminal justice system should strive to minimize false convictions, even at the expense of creating more false acquittals and more total errors overall. Joel Johnson's "Benefits of Error in Criminal Justice" is a thoughtful and well-crafted response to my article. In this short reply, I offer some thoughts on Johnson’s arguments, while also addressing two other recent responses by Laura Appleman and by John Bronsteen and Jonathan Masur. While I use this opportunity to clarify and defend some of my earlier claims, my goal is to help frame further conversations about the Blackstone principle while also offering some larger thoughts on criminal justice scholarship. The reply focuses on three main points: first, I address criticism of my argument about the costs and benefits of the Blackstone principle for innocent defendants. Second, I explore the implications of my critique for criminal procedure rules. Third, I discuss the relationship between the Blackstone principle, equality, and political structure in our criminal justice system.
Mary D. Fan (University of Washington - School of Law) has posted two pieces on police body cameras. The first is Privacy, Public Disclosure, Police Body Cameras: Policy Splits (Alabama Law Review, Vol. 68, Forthcoming). Here is the abstract:
When you call the police for help — or someone calls the police on you — do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives — after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure. This article sheds light on the balances being struck in state laws and in the body camera policies of police departments serving the 100 largest cities in the nation. The evaluation illuminates two emerging areas of concern — the enactment of blanket or overbroad exemptions of body camera footage from public disclosure, and silence on victim and witness protection in many policies.
The article offers two proposals to address the challenges.
Noah Zatz , Tia Koonse , Theresa Zhen , Lucero Herrera , Han Lu , Steven Shafer and Blake Valenta (University of California, Los Angeles (UCLA) - School of Law , Independent , Independent , Independent , Independent , University of California, Los Angeles (UCLA) - School of Law and Independent) have posted Get to Work or Go to Jail: Workplace Rights Under Threat (Report published by UCLA Institute for Research on Labor and Employment, UCLA Labor Center, A New Way of Life Reentry Project (March 2016)) on SSRN. Here is the abstract:
This research report explores how workers are threatened with incarceration if they fail or refuse to work to the government’s satisfaction. We identify three areas where this occurs: probation and parole, child-support enforcement, and collection of criminal justice debt. In each case, we explain the legal basis for this threat and present original data documenting both how often this threat is carried out and how it disproportionately affects low-income people and people of color. We further identify four ways these threats may undermine workplace rights, drawing both on individual examples and on analogies to welfare work requirements, prison labor, and workplace immigration enforcement. These four mechanisms are depressing labor standards by forcing workers to take worse jobs, enabling employer retaliation by making job loss a potential trigger for incarceration, evading legal protections by forcing workers into work arrangements deemed not to involve employment relationships, and displacing or undermining other workers by giving employers access to a more vulnerable substitute workforce.
Jonathan J. Koehler (Northwestern University - School of Law) has posted Forensic Science Accuracy: Why We Know Little and How to Learn More on SSRN. Here is the abstract:
Forensic science — which includes such techniques as DNA analyses, fingerprint examination, and firearms comparisons — plays a crucial role in our criminal justice system by helping to convict the guilty and acquit the innocent. However, our confidence in forensic science conclusions must be tempered by the odds that those conclusions are wrong. What are those odds? Nobody knows the answer because no disinterested researchers have conducted the appropriate studies in any of the forensic science disciplines. This is a serious problem because, without this information, legal decision makers cannot properly assess the validity or probative value of forensic evidence. This paper examines the institutional forces and misunderstandings that are responsible for our ignorance about the accuracy of forensic science conclusions. To help solve the problem, this paper recommends a new type of proficiency testing regimen (Type II proficiency testing) that expressly measures error rates under appropriate test conditions in the various forensic subfields.
Jonathan M Manes (Yale Law School - Information Society Project) has posted Online Service Providers and Surveillance Law Transparency (125 Yale Law Journal Forum 343 (2016)) on SSRN. Here is the abstract:
The Snowden disclosures, and others that followed, illuminated a troubling feature of surveillance law: examining the statute books and other public sources of law can paint a radically incomplete or even misleading picture of how the government actually construes its legal authority to conduct surveillance. This observation raises profound anxieties about public democratic control of the surveillance state. These anxieties make a hard question very salient: how can we ensure a measure of transparency about how surveillance laws have been interpreted in practice?
This Essay argues that online service providers and other companies that mediate our digital communications are in a special position to enhance surveillance transparency. Because these private companies are subject to surveillance orders, they (or some of their employees) are privy to information that the rest of public is not: they know what kinds of information the government demands of them under a given surveillance law, and how those laws are being used.
Richard A. Leo and Brian L. Cutler (University of San Francisco - School of Law and University of Ontario Institute of Technology (UOIT)) have posted False Confessions in the Twenty-First Century (The Champion magazine, (2016) Forthcoming) on SSRN. Here is the abstract:
Although the Miranda decision changed police behavior insofar as they routinely provide at least a nominal Miranda warning to suspects, police have strategically adapted their warning practices so that they do not inhibit self-incrimination by suspects. Thus, Miranda has done little to reduce the risk of wrongful convictions resulting from false confessions. This article suggests ways that criminal defense attorneys can use existing studies about the causes of false confessions to mount false confession defenses. Studies have repeatedly shown that if a false confession is introduced into evidence at trial -- even if it is obtained under questionable conditions, supported by no independent evidence, contradicted by substantial evidence, and ultimately proven false -- it is highly likely to lead to a wrongful conviction. For this reason, it is incumbent upon criminal defense attorneys to be well-versed in the social science research on interrogation and confession in order to aggressively and effectively litigate false confession cases.
Artemio Rivera has posted Probable Cause and Due Process in International Extradition (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
At international extradition hearings the government must prove there is probable cause that the individual committed an offense at the requesting country. In deciding on the admissibility of the evidence, magistrates regularly apply the rule of “non-contradiction” which allows those wanted for extradition to introduce evidence that explains the government’s case, but denies them the opportunity to introduce evidence that simply contradicts it.
I argue that forbidding individuals from contradicting the government’s evidence violates due process. Applying the balancing test of Mathews v. Eldridge to non-contradiction suggests its unconstitutionality because of the heavy weight of the liberty and property interests of individuals in international extradition, and the insignificance of any additional burdens that eliminating non-contradiction may place on the government. Extradition treaties and the U.S. extradition statute afford requesting countries a plethora of other procedural advantages, and thus allowing individuals to contradict the government’s evidence adds no significant burden on the requesting country.
Lindsay C. Malloy , Allison P. Mugno , Jillian R. Rivard , Thomas D. Lyon and Jodi Quas (Florida International University (FIU) , Florida International University (FIU) , Barry University , University of Southern California - Gould School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted Familial Influences on Recantation in Substantiated Child Sexual Abuse Cases (Forthcoming in Child Maltreatment) on SSRN. Here is the abstract:
The underlying reasons for recantation in children’s disclosure of child sexual abuse (CSA) have been debated in recent years. In the present study, we examined the largest sample of substantiated CSA cases involving recantations to date (n = 58 cases). We specifically matched those cases to 58 non-recanters on key variables found to predict recantation in prior research (i.e., child age, alleged parent figure perpetrator, caregiver unsupportiveness). Bivariate analyses revealed that children were less likely to recant when they were (1) initially removed from home post-disclosure, and (2) initially separated from siblings post-disclosure. Multivariate analyses revealed that children were less likely to recant when family members (other than the non-offending caregiver) expressed belief in the children’s allegations, and more likely to recant when family members (other than the non-offending caregiver) expressed disbelief in the allegations and when visitations with the alleged perpetrator were recommended at their first hearing. Results have implications for understanding the complex ways in which social processes may motivate some children to retract previous reports of sexual abuse.
Tuesday, May 10, 2016
James Q. Whitman, in his deeply comparative new article, describes the American criminal justice system, in contrast with continental and inquisitorial systems, as more focused on the danger of innocent persons being arrested and convicted. In this Response, I respond by questioning the comparison on both sides of the equation, not to disagree with its utility or its contours, but because I admire the project and seek to elaborate here on Whitman’s deep concern with unpacking the status of the presumption of innocence and that of mercy. I describe how the American presumption of innocence is more of an ideal than real. Nor does the supposed and oft proclaimed focus in constitutional criminal procedure on the question of guilt or innocence translate into rights protective as against wrongful convictions. However, there is today the potential for a new kind of convergence, as systems on both sides of the Atlantic are responding to wrongful convictions with a rethinking of traditional procedural rules, including rules of finality that long resisted reopening convictions in a broad range of civil and common law systems. Continental systems are increasingly receptive to claims of new evidence of innocence, in part because of lessons drawn from research on wrongful convictions in the United States. And in a reverse irony, inquisitorial tools are influencing efforts to make criminal adjudication in the United States more reliable. As a result, in the years ahead, there is much that all systems can do to make the presumption of innocence far more than the vestigial “inaccurate, shorthand description” of a right that it has so often served as in the past, and instead a “corner stone” of criminal justice.