CrimProf Blog

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

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Friday, February 13, 2015

Alper on The Execution Drug Shortage

Alper tyTy Alper (University of California, Berkeley) has posted The United States Execution Drug Shortage: A Consequence of Our Values (Brown Journal of World Affairs, 2014) on SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions. This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 13, 2015 | Permalink | Comments (0)

Thursday, February 12, 2015

Baer on Timing Brady

Baer_miriamMiriam H. Baer (Brooklyn Law School) has posted Timing Brady (Columbia Law Review, Vol. 115, No. 1, 2015) on SSRN. Here is the abstract:

Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery’s scope, increasing the degree and likelihood of prosecutorial sanctions, and altering the organizational dynamics that encourage prosecutors to withhold exculpatory evidence.

None of these approaches, however, addresses the issue of timing and its effect on prosecutors.

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February 12, 2015 | Permalink | Comments (0)

Jordan on Campaign Contributions as Implicit Bribery

Brian Francesco Jordan has posted Disclosing Bribes in Disguise: Campaign Contributions as Implicit Bribery and Enforcing Violations Impartially (University of Pennsylvania Journal of Constitutional Law, May 2015, Forthcoming) on SSRN. Here is the abstract:

Few Americans would question the appropriateness of assessing criminal sanctions on public officials who accept bribes in exchange for returning influence or power by wrongly capitalizing on their access to government resources. Less clear, is how government officials, federal courts, and election law scholars should solve problems relating to implicit forms of bribery that involve campaign contributions. Complicating this issue is the central role of privately funded campaigns in American elections and the idea that government officials should be able to actively solicit campaign contributions in order to run successful campaigns. Thus, any reforms in this area must strike a careful balance to avoid violating the First Amendment protections afforded to those participating in political campaigns.

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February 12, 2015 | Permalink | Comments (0)

Greenwood & Wattal on Ride Sharing and Alcohol Related Motor Vehicle Homicides

Brad N Greenwood and Sunil Wattal (Temple University - Department of Management Information Systems and Temple University - Department of Management Information Systems) have posted Show Me the Way to Go Home: An Empirical Investigation of Ride Sharing and Alcohol Related Motor Vehicle Homicide on SSRN. Here is the abstract:

In this work, we investigate how the entry of the driving service Uber influences the rate of alcohol related motor vehicle homicides. While significant debate has surrounded the entry of driving services like Uber and Lyft, limited rigorous empirical work has been devoted to uncovering the social benefits of such services (or the mechanism which drives these benefits). Using a difference in difference approach to exploit a natural experiment, the entry of Uber into markets in California between 2009 and 2013, findings suggest a significant drop in the rate of homicides during that time. Furthermore, results suggest that not all services offered by Uber have the same effect, insofar as the effect for the Uber Black car service is intermittent and manifests only in selective locations. These results underscore the coupling of increased availability with cost savings which are necessary to exploit the public welfare gains offered by the sharing economy. Practical and theoretical implications are discussed within.

February 12, 2015 | Permalink | Comments (0)

Wednesday, February 11, 2015

Caldwell & Hewitt on Jury Selection and Racial Stereotyping

Harry M. Caldwell and Adrienne M Hewitt (Pepperdine University - School of Law and Pepperdine University - School of Law) have posted Shades of Guilt: Combating the Continuing Influence Upon Jury Selection of Racial Stereotyping in Post-Batson Trials (American Journal of Trial Advocacy, Vol. 38, No. 67, 2014) on SSRN. Here is the abstract:

This Article addresses the role stereotypes, particularly racial stereotypes, play in the process of jury selection in criminal cases. This Article discusses the law that has evolved since Batson and uses empirical data to provide added insight into the exercise of peremptory challenges. Further, the authors consider how current scholarship in cognitive psychology reveals the influence of stereotypes on decision-making. In the final section, the authors offer practical approaches that both prosecutors and defense lawyers can use while making jury decisions.

February 11, 2015 | Permalink | Comments (1)

Kochan on Bubbles

Kochan_DonaldDonald J. Kochan (Chapman University, The Dale E. Fowler School of Law) has posted Bubbles (Or, Some Reflections on the Basic Laws of Human Relations) (26 Fordham Environmental Law Review 133 (2015)) on SSRN. Here is the abstract:

Very few of us want to live in the absolute isolation of a “bubble.” Most humans cherish the capacity to interact with their external environment even when we know that, at times, such exposure makes us susceptible to all sorts of negative effects ranging from mere annoyance to the contraction of deadly illnesses. Yet, because there are so many positive elements and benefits from that interaction and exposure, we often are willing to take the bitter with the sweet. We tolerate much external exposure to bad things in order to take advantage of the collisions with the good things that our outer environment offers. Yet, at the same time, to one extent or another, we all live with, and choose to cherish at times, some metaphorical, protective bubble around us, and it is the law that helps to define that bubble’s contours and provide its relative strength against those forces that might intrude upon it. 

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February 11, 2015 | Permalink | Comments (0)

Tuesday, February 10, 2015

Easteal et al. on Media Portrayals of Violence Against Women

Patricia L. Easteal Keziah Judd and Kate Holland (University of Canberra - Faculty of law , University of Canberra and University of Canberra - Faculty of Arts and Design) have posted Enduring Themes and Silences in Media Portrayals of Violence Against Women (48 Women Studies International Forum: 103-113, 2015) on SSRN. Here is the abstract:

This paper looks at different ways of conceptualising the influence of media with respect to its potential to reinforce or transform public opinion about violence against women. We engage the question of whether media portrayals of the issue are essentially conservative and how this conservatism may be communicated behind a mask of factual objectivity and through brief and simplistic narratives. Our sample of the relevant research literature shows that by using several framing techniques, the ‘reality’ of family violence, sexual assault and sexual harassment is constructed via a recurrent theme of mutuality of responsibility for the violence. Such reportage may obstruct the feminist understanding of these harms as gendered and reflective of male dominance, sexism and misogyny. It also may impede and delay feminist aims of better ensuring women’s safety from violence and of improving victims’ access to justice.

February 10, 2015 | Permalink | Comments (0)

Low & Johnson on The Vocabulary of Vagueness

Peter W. Low and Joel S. Johnson (University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author) have posted Changing the Vocabulary of the Vagueness Doctrine on SSRN. Here is the abstract:

The void-for-vagueness concept is itself indefinite, and the language of the doctrine exacerbates the problem. This article addresses situations where the doctrine has been used to invalidate criminal statutes that do not implicate specially protected constitutional rights. Its thesis is that application of the vagueness doctrine in this context can be understood as based on one or both of two constitutional requirements, and that they provide a better explanation for the results than traditional rhetoric. The two principles are: all crime must be based on conduct; and there must be a defensible and predictable correlation between the established meaning of a criminal prohibition and the conduct to which it is applied. The article begins by tracing the origins of these two principles and then illustrates their explanatory power in two state cases - Lanzetta and Papachristou - and two federal cases - Skilling and Screws. Additional factors extraneous to the vagueness doctrine itself, however, often control the outcome in vagueness cases. This proposition is illustrated by two state cases - Morales and Kolender - and one federal case - Johnson v. United States, which is now pending before the Supreme Court.

February 10, 2015 | Permalink | Comments (0)

Garrett on The Corporate Criminal as Scapegoat

Garrett brandonBrandon L. Garrett (University of Virginia School of Law) has posted The Corporate Criminal as Scapegoat on SSRN. Here is the abstract:

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop original empirical data detailing the path of individual prosecutions accompanying federal corporate prosecution agreements. Only 34 percent of federal corporate deferred and non-prosecution agreements from 2001-2014 were accompanied by charges against individuals. Those prosecutions produced uneven results. Only 42 percent of those charged received any jail time. There were large numbers of outright losses: 15 percent terminated in acquittals or dismissals. Only a handful of the cases involved high-level executives. These findings illustrate the challenges posed by organizational complexity and the manner in which it can obscure fault. Contrary to the calls of prominent critics, I argue that bringing more individual criminal cases cannot adequately substitute for prosecuting companies. Instead, corporate prosecutions should be leveraged to enhance individual accountability. In conclusion, I propose statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes.

February 10, 2015 | Permalink | Comments (0)

Monday, February 9, 2015

Buckley et al. on Cooperating with the State

Noah Buckley Timothy Frye Scott Gehlbach and Lauren McCarthy (Columbia University - Department of Political Science , Columbia University - Department of Political Science , University of Wisconsin-Madison and University of Massachusetts Amherst) have posted Cooperating with the State: Evidence from Survey Experiments on Policing on SSRN. Here is the abstract:

We examine cooperation with the state using a series of survey experiments on policing conducted in late 2011 in Moscow, Russia. Building on a ``calculus of cooperation'' that identifies various benefits and costs of reporting crimes to the police, we experimentally manipulate crime severity, identity of the perpetrator, monetary rewards, appeals to civic duty, and the opportunity cost of time spent reporting. Of these factors, only crime severity and identity of the perpetrator are robustly associated with a propensity to report. Our research design and results build on a large observational literature on cooperation with the state by examining variables that can easily or ethically be manipulated only through survey experiments.

February 9, 2015 | Permalink | Comments (0)

Logan on Disagreement Among State and Federal Courts on the Constitution

Logan wayneWayne A. Logan (Florida State University - College of Law) has posted A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights (Notre Dame Law Review, Vol. 90, No. 235, 2014) on SSRN. Here is the abstract:

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty and privacy, the article highlights multiple instances in which state and lower federal courts disagree. As the article makes clear, creation of a “crazy quilt” of conflicting federal rights, which Justice Scalia has inveighed against more generally, generates an array of distinct and quite significant difficulties when localized. 

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February 9, 2015 | Permalink | Comments (0)

Doleac on The Effects of DNA Databases on Crime

Jennifer L. Doleac (University of Virginia (UVA) - Frank Batten School of Leadership and Public Policy) has posted The Effects of DNA Databases on Crime on SSRN. Here is the abstract:

Since 1988, every US state has established a database of criminal offenders' DNA profiles. These databases have received widespread attention in the media and popular culture, but this paper provides the first rigorous analysis of their impact on crime. DNA databases are distinctive for two reasons: (1) they work mainly by increasing the probability that a criminal is punished rather than the severity of the punishment, and (2) they exhibit enormous returns to scale. I exploit the details and timing of state DNA database expansions in two ways, first to address the effects of DNA profiling on individuals' subsequent criminal behavior and then to address the impacts on crime rates. Using a regression discontinuity analysis, I show that DNA profiling deters criminal activity for both violent and property offenders. Then, using an instrumental variable approach, I show that larger DNA databases reduce crime rates, especially in categories where forensic evidence is likely to be collected at the scene -- e.g., murder, rape, assault, robbery, and vehicle theft. Back-of-the-envelope estimates of the marginal cost of preventing each crime suggest that DNA databases are much more cost-effective than traditional law enforcement tools.

February 9, 2015 | Permalink | Comments (0)

Sunday, February 8, 2015

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 262 Debating Rape Myths 
Helen Reece 
London School of Economics - Law Department 
Date posted to database: 9 Dec 2014 
2 262 Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence 
Craig Forcese and Kent Roach 
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law 
Date posted to database: 9 Jan 2015 
3 197 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 [6th last week]
4 194 Can the Child Welfare System Protect Children Without Believing What They Say? 
Tara Urs 
Seattle University School of Law 
Date posted to database: 6 Dec 2014 [3rd last week]
5 169 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
Date posted to database: 24 Dec 2014 [4th last week]
6 166 The Evolution of Cybercrime, 2004-2014 
Peter Grabosky 
Australian National University (ANU) - Research School of Social Sciences (RSSS) 
Date posted to database: 9 Dec 2014 [8th last week]
7 146 Introducing the United States Police-Shooting Database: A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011-2014 
Cody Ross 
University of California, Davis 
Date posted to database: 8 Dec 2014
8 124 Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 18 Dec 2014 [9th last week]
9 122 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Date posted to database: 25 Jan 2015 [new to top ten]
10 121 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn Johnson,Paul Marcus and Emily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 [new to top ten]

February 8, 2015 | Permalink | Comments (0)

Call for papers: The Rule of Law and Violence Against Children

A38 and A CONTRARIO will be hosting a joint online legal symposium on, "The Rule of Law in addressing Violence against Children: Success or Failure?" This symposium seeks to publish papers which answers this questions and related questions related to violence against children. A38 and A CONTRARIO will publish select articles in April 2015. See for more information.

February 8, 2015 | Permalink | Comments (0)

Blume & Wendel on Ethical Challenges for Capital Representation after Martinez v. Ryan

John H. Blume III and W. Bradley Wendel (Cornell University - Law School and Cornell University - School of Law) have posted Coming to Grips with the Ethical Challenges for Capital Post-Conviction Representation Posed by Martinez v. Ryan on SSRN. Here is the abstract:

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” (and likely also prejudice), and thus a gateway to merits’ review of the claim in federal habeas corpus proceedings. This is potentially a good thing for many habeas petitioners, but creates a serious and as-yet unappreciated ethical problem for federal habeas counsel who also served as state post-conviction counsel. In capital post-conviction cases, the pre-Martinez preference and practice was for continuity of counsel from state to federal court. Now that ineffective representation in state post-conviction proceedings can serve as a basis for review of otherwise defaulted claims, however, a lawyer may be materially limited in her ability to provide ongoing representation by the client’s interest in asserting an ineffectiveness claim.

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February 8, 2015 | Permalink | Comments (0)

Friday, February 6, 2015

Baker on Baldus

James E. Baker has posted The Master Mason: How Professor Baldus Built a Bridge from Learning to Law and the Legacy of Equal Justice He Leaves Behind (Iowa Law Review, Vol. 97, pp. 1871-1877, 2012) on SSRN. Here is the abstract:

These are Chief Judge Baker’s remarks eulogizing the late Professor David Baldus. Chief Judge Baker observes that Professor Baldus was an extraordinary educator-lawyer who mastered the fields of social science and statistics. He adds that Professor Baldus was diligent in his research and strived to make the law accessible. Chief Judge Baker discusses how Professor Baldus’s research on the death penalty and proportionality review successfully bridged the law and learning, without ever losing sight of compassion.

February 6, 2015 | Permalink | Comments (0)

Strange et al. on Errors in Alibis

Deryn Strange Jennifer Dysart and Elizabeth F. Loftus (CUNY, John Jay College of Criminal Justice , CUNY, John Jay College of Criminal Justice and University of California, Irvine - Department of Psychology and Social Behavior) have posted Why Errors in Alibis are Not Necessarily Evidence of Guilt (Zeitschrift fur Psychologie, Vol. 222. No. 2, 2014, pp. 82-89) on SSRN. Here is the abstract:

Laypeople, police, and prosecutors tend to believe that a suspect’s alibi, if truthful, should remain consistent over time (see Burke, Turtle, & Olson, 2007; Culhane & Hosch 2012; Dysart & Strange, 2012). However, there is no empirical evidence to support this assumption. We investigated (a) whether some features of an alibi – such as what was happening, who with, where, and for how long – are more likely to produce errors than others; and (b) whether consistency in alibi stories is correlated with particular phenomenological characteristics of the alibi such as a person’s confidence and sense of reliving the event. We asked participants to imagine they were suspected of a crime and to provide their truthful alibi for an afternoon 3 weeks prior and to complete questions regarding the phenomenological characteristics of their memory. We also asked participants to locate evidence of their actual whereabouts for the critical period. Participants returned a week later, presented their evidence, re-told their alibi, and re-rated the phenomenological characteristics of the alibi. Our results revealed that participants were largely inconsistent across all aspects of their alibi, but there was variability across the different features. In addition, those who were inconsistent were less confident, recollected the time period in less detail and less vividly, and were less likely to claim to remember the time period. We conclude that inconsistencies are a normal byproduct of an imperfect memory system and thus should not necessarily arouse suspicion that a suspect is lying.

February 6, 2015 | Permalink | Comments (0)

Thursday, February 5, 2015

Larkin on Marijuana and Drugged Driving

Paul J. Larkin Jr. (The Heritage Foundation) has posted Medical or Recreational Marijuana and Drugged Driving (American Criminal Law Review, Vol. 52, No. 3, 2015) on SSRN. Here is the abstract:

Beginning in the 1920s and lasting for seventy years, state and federal law treated marijuana as a dangerous drug and as contraband, forbidding its cultivation, distribution, possession, and use. Over the last two decades, however, numerous states have enacted laws permitting marijuana to be used for medical treatment. Some also permit its recreational use. Those laws have raised a host of novel legal and public policy issues. Most of the discussion, and almost all of the litigation, has involved the respective roles of the states and federal government and how each one may and should deal with this very controversial subject. One issue that has received little attention in the legal community is the risk that medical and recreational marijuana laws will pose to highway safety. Will those laws increase, decrease, or leave untouched the rate of accidents and fatalities on our nation’s roadways? How should the criminal justice system — in particular, its law enforcement officers — address the problem of “drugged driving” in general and in states with medical marijuana laws? This Article addresses those issues.

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February 5, 2015 | Permalink | Comments (0)

Alschuler on Bribery

AlschulerAlbert W. Alschuler (University of Chicago Law School) has posted Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse on SSRN. Here is the abstract:

Although the law of bribery may look profoundly under-inclusive, the push to expand it usually should be resisted. This article traces the history of two competing concepts of bribery — the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, if taken literally and applied to officials other than judges, “intent to influence” is now an unthinkable standard. The article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. The article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. The article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past 60 years have given us better government.

February 5, 2015 | Permalink | Comments (0)

Low & Wood on Lambert Revisited

Peter W. Low and Benjamin Charles Wood (University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author) has posted Lambert Revisited (Virginia Law Review, Vol. 100 (2014)) on SSRN. Here is the abstract:

Lambert v. California is a fifty-seven-year old canard involving a Douglas-Frankfurter debate in terms that can charitably be called obscure in its reasoning. Many have taken it to involve at bottom a notice principle requiring what this article calls socialization — the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The article explores the consequences of elevating this idea to a freestanding constitutional principle, and rejects that conception of the case because it will insert the Constitution too far into ordinary criminal law doctrine. Instead, the article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial if not complete elucidation of the “fair notice” branch of that doctrine. A forthcoming article will integrate this insight into a more complete view of the vagueness doctrine itself.

February 5, 2015 | Permalink | Comments (0)