CrimProf Blog

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

Wednesday, November 16, 2016

Garrett & Mitchell on Forensics and Fallibility

Brandon L. Garrett and Gregory Mitchell (University of Virginia School of Law and University of Virginia School of Law) have posted Forensics and Fallibility: Comparing the Views of Lawyers and Judges (West Virginia Law Review, Vol. 119, 2016, Forthcoming) on SSRN. Here is the abstract:

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas or decide what evidence to present at trial. In this Essay, we begin to examine how criminal defense lawyers and prosecutors assess forensics, and we compare their views to those expressed by lay jurors. Part I of this Essay surveys the literature on the role that evidence plays in the plea bargaining process. In Part II, we present the results of two surveys that examine views on fingerprint and DNA evidence. Our focus was on two types of forensics: DNA evidence and fingerprint evidence. The evidence we gathered suggests misperceptions of both the evidence and how jurors will view the evidence. We found defense lawyers, in particular, may be far more skeptical of forensic evidence than jurors; indeed, defense lawyers may be overly skeptical of even DNA evidence. Most remarkable, however, was the great weight that jury-eligible adults placed on fingerprint evidence, just as many of the lawyers surveyed would have predicted, and even when compared to the weight they placed on DNA evidence. These results suggest far more must be done to study what information and influences shape the weight both lawyers and jurors place on forensics. We conclude in Part III by outlining how these surveys can provide a useful starting place for further research and policy.

November 16, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

Tanenhaus & Nystrom on Pursuing Gault

David S. Tanenhaus and Eric C. Nystrom (University of Nevada, Las Vegas, William S. Boyd School of Law and Arizona State University) have posted Pursuing Gault on SSRN. Here is the abstract:

In the landmark 1967 case In re Gault, the U.S. Supreme Court incorporated procedural due process protections into the administration of American juvenile courts and paved the way for lawyers to represent and prosecute children in juvenile court. The Court's sweeping opinion drew on empirical research to address broad principles of due process as well as the specifics of the case. In the decades since, American juvenile justice has been transformed. In this essay, we neither lament Gault's "lost promise" nor treat it as a "period piece." Instead, we use digital tools to investigate the use of this frequently cited case over time. We begin by reviewing the role of Abe Fortas, who wrote the majority opinion in this landmark decision. Next, we use digital tools and citation records to trace what happened to the most memorable parts of his decision (i.e., Fortas's Gault) in the subsequent case law, and how those parts compare to other citations of the case. We also use digital tools to search for potentially interesting patterns meriting further investigation. The conclusion notes that what remains of Gault is significant but largely confined to juvenile court. Yet scholars may be able to use citations to the case to discover valuable sites for exploring the legal history of American juvenile justice from 1967 to the present.

November 15, 2016 | Permalink | Comments (0)

Cook on Utah v. Strieff

Cook JulianJulian A. Cook (University of Georgia Law School) has posted The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors.

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November 15, 2016 | Permalink | Comments (0)

Hong on Rape by Malice

Hong kariKari E. Hong (Boston College - Law School) has posted Rape by Malice (Montana Law Review (2017 Forthcoming)) on SSRN. Here is the abstract:

When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.


November 15, 2016 | Permalink | Comments (0)

Rosenthal on Police Violence

Rosenthal_LawrenceLawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted Good and Bad Ways to Address Police Violence (The Urban Lawyer, Forthcoming) on SSRN. Here is the abstract:

Concerns about the use of excessive force by police, especially when directed at persons of color, have long been prevalent. A wide variety of proposals have been advanced to address the problem, including more robust regimes of criminal or civil liability, and reforms that facilitate the supervision and discipline of officers.

The striking thing about the reform menu is that it is virtually all stick and no carrot. This approach is less likely to produce optimal performance than over-deterrence – sometimes called depolicing. It is also likely to reinforce the code of silence – frequently documented in the literature on policing – in which police do not acknowledge wrongdoing in order to insulate themselves and their peers from discipline. Equally important, there has been no effort to assess proposed reforms in light of what we know about the sociology of policing and the ecology of highcrime communities. This literature suggests that high-crime communities are unlikely to achieve anything like stability without a robust police presence. Reforms that fail to grasp the need for aggressive policing at criminogenic hot spots are doomed to failure.

Utilizing the scholarly literature on policing, urban sociology, criminology, and, occasionally, the author’s experiences as a senior municipal official, this article identifies the weaknesses of leading proposals for addressing police violence, and considers as well some novel proposals that have not yet received attention in the scholarly literature, but that show greater promise for dismantling the code of silence and rendering policing more transparent and accountable.

November 15, 2016 | Permalink | Comments (0)

Monday, November 14, 2016

Thaxton on Capital Charging

Thaxton sherodSherod Thaxton (University of California, Los Angeles (UCLA) - School of Law) has posted Race, Place, and Capital Charging in Georgia (Mercer Law Review, Vol. 67, No. 3 (2016)) on SSRN. Here is the abstract:

The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality. In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts. I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period. The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.

November 14, 2016 | Permalink | Comments (0)

Gongola et al. on Public Sentiments on Juvenile LWOP

Jennifer Gongola, Daniel A. Krauss and Nicholas Scurich (University of California, Irvine, Claremont Colleges - Department of Psychology and University of California, Irvine) have posted Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments on SSRN. Here is the abstract:

The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards. This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP. Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.

November 14, 2016 | Permalink | Comments (0)

Thompson on One-Sided Bail Hearings

Thompson sandraSandra Guerra Thompson (University of Houston Law Center) has posted Do Prosecutors Really Matter?: A Proposal to Ban One-Sided Bail Hearings (44 Hofstra Law Review 1161 (2016)) on SSRN. Here is the abstract:

In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state. This article questions whether prosecutors can function as “ministers of justice” within the context of a one-sided proceeding where defendants appear without counsel. The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney. The article demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings. In fact, the article argues that defendants would likely be better off if prosecutors were ethically barred from participating in bail hearings unless defense counsel is also provided.

November 14, 2016 | Permalink | Comments (0)

Barrett on Predictive Policing at the Border

Lindsey Anne Morgan Barrett (Georgetown University, Law Center, Students) has posted Reasonably Suspicious Algorithms: Predictive Policing at the United States Border (New York University Review of Law & Social Change, Forthcoming) on SSRN. Here is the abstract:

As big data’s promises of increased efficiency and serendipitous insights spread across a broad range of sectors, they are accompanied by new risks, some intuitive, some unpredictable. That dichotomy is heavily accentuated in the law enforcement context, where blithe application of new technologies to analog doctrines poses a greater threat to individual rights, and the potential of data analytics to add efficiency, accuracy, and accountability to existing procedures could be all the more beneficial. Predictive policing algorithms, which approximate the probability of crimes occurring in certain areas, or being committed by certain people, epitomize this dual dynamic, as they have the potential to increase accuracy and efficiency, but also threaten to dilute the reasonable suspicion standard and increase unintentional discrimination, in a manner that existing law is ill-equipped to prevent. This is of particular concern at the United States border, where Fourth Amendment protections are weaker due to the long-recognized governmental prerogative to investigate external threats poised to infiltrate the country. This Note will argue that while the use of predictive policing algorithms at the border should not be barred outright, so as to permit potentially beneficial uses of the technology to develop, it should be carefully limited by statute to prevent the wholesale trammeling of privacy and civil liberties.

November 14, 2016 | Permalink | Comments (0)

Sunday, November 13, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 270 What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016 [2nd last week]
2 264 Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper
Craig Forcese and Kent Roach
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law
Date posted to database: 8 Oct 2016 [3rd last week]
3 143 Clarity in Criminal Law
Shon Hopwood
Georgetown University Law Center
Date posted to database: 16 Sep 2016 [4th last week]
4 115 'Revenge Porn' Reform: A View from the Front Lines
Mary Anne Franks
University of Miami School of Law
Date posted to database: 19 Oct 2016 [9th last week]
5 113 Dose of Reality: The Effect of State Marijuana Legalizations
Angela Dills, Sietse Goffardand Jeffrey Miron
Cato Institute, Cato Institute and Cato Institute
Date posted to database: 23 Sep 2016 [7th last week]
6 112 Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?
Lawrence M. Solan andTammy A Gales
Brooklyn Law School and Hofstra University
Date posted to database: 13 Oct 2016 
7 91 Punishing Sexual Fantasy
Andrew Gilden
Willamette University - College of Law
Date posted to database: 9 Sep 2016 [10th last week]
8 80 Criminal Law, Neuroscience and Voluntary Acts
Dennis Patterson
European University Institute
Date posted to database: 25 Oct 2016 [new to top ten]
9 79 A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers
Reid K. Weisbord
Rutgers Law School
Date posted to database: 20 Oct 2016 [new to top ten]
10 73 Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 18 Oct 2016 [new to top ten]

November 13, 2016 | Permalink | Comments (0)

Saturday, November 12, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.


Rank Downloads Paper Title
1 230 The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez andStephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016 
2 186 The Judicial Presumption of Police Expertise
Anna Lvovsky
Columbia University - Law School
Date posted to database: 30 Sep 2016 [3rd last week]
3 185 Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders
Shawn Fields
University of San Diego School of Law
Date posted to database: 11 Oct 2016 [2nd last week]
4 166 Terry's Original Sin
Jeffrey Fagan
Columbia Law School
Date posted to database: 18 Sep 2016 
5 164 Comment on R v K(A): Carding, Racial Profiling and Police Perjury
David M. Tanovich and Donald R. Stuart
University of Windsor - Faculty of Law and Queen's University
Date posted to database: 4 Mar 2016 [6th last week]
6 136 If George Washington Did It, Does that Make It Constitutional?: History's Lessons for Wartime Military Tribunals
Martin Lederman
Georgetown University Law Center
Date posted to database: 21 Sep 2016 [7th last week]
7 135 Rethinking Prosecutors’ Conflicts of Interest
Bruce A. Green and Rebecca Roiphe
Fordham University School of Law and New York Law School
Date posted to database: 9 Oct 2016 [9th last week]
8 125 What Executioners Can -- And Cannot -- Teach Us About the Death Penalty
Susan A. Bandes
DePaul University - College of Law
Date posted to database: 9 Sep 2016 
9 117 Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System
Laura I. Appleman
Willamette University College of Law
Date posted to database: 11 Sep 2016 [10th last week]
10 113 Victim Impact Statements and Expressive Punishment in the Age of Social Media
Erin L. Sheley
University of Calgary Faculty of Law
Date posted to database: 22 Sep 2016 [new to top ten]


November 12, 2016 | Permalink | Comments (0)

Friday, November 11, 2016

Gershowitz on Post-Trial Plea Bargaining in Capital Cases

Gershowitz adamAdam M. Gershowitz (William & Mary Law School) has posted Post-Trial Plea Bargaining in Capital Cases: Using Conditional Clemency to Remove Weak Cases from Death Row (Washington and Lee Law Review, Vol. 73, 2016) on SSRN. Here is the abstract:

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal cases approach ninety-five percent in many jurisdictions. Because the government has little incentive to bargain, defendants slowly churn their way through the formal appellate and habeas process.

The lack of post-trial bargaining makes perfect sense in ordinary criminal cases. It does not make as much sense in death-penalty cases, however. Death sentences are followed by decades of litigation. And, more importantly, challenges to death sentences are often successful. Capital cases are reversed at alarming rates, and re-trials typically follow the reversals. Faced with years of appellate litigation that it might not win, and the prospect of a re-trial and another slew of appeals, the State should have an incentive to bargain in its weakest cases. And the convicted individual — faced with a death sentence — likely has an even stronger incentive to bargain.

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November 11, 2016 | Permalink | Comments (0)

Mungan on Disenfranchisement and Over-Incarceration

Mungan muratMurat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Disenfranchisement and Over-Incarceration on SSRN. Here is the abstract:

Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards. In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences. Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e. when criminals vote less frequently than non-criminals.

November 11, 2016 | Permalink | Comments (0)

Larkin on Capital Clemency

Paul J. Larkin Jr. (The Heritage Foundation) has posted The Demise of Capital Clemency (73 Wash. & Lee L. Rev. 1295 (2016)) on SSRN. Here is the abstract:

Over the last four decades numerous opponents of capital punishment have criticized the institution of executive clemency. Their principal complaint has been that, with a few isolated exceptions, far too many chief executives have granted condemned prisoners clemency far too infrequently. This is an unfortunate development, critics argue, one due entirely to the politicization of criminal justice, particularly capital punishment.

This Article maintains that these criticisms are unfounded or overstated. It concludes that a governor should not merely grant clemency, but also issue a pardon to any offender who proves to be innocent of his crime, but notes that the instances in which that scenario might occur are few and far between. The Article also maintains that, given the numerous opportunities for the jury and state courts to spare those offenders, there is far less need today for a governor to second-guess the unanimous view of the local community and state judiciary that a death sentence is the appropriate punishment. Finally, the Article notes that critics do not address the horrific facts of some capital cases — facts that can signify that death is the appropriate penalty.

November 11, 2016 | Permalink | Comments (0)

Meintijes-van der Walt on Eyewitness Evidence

Lirieka Meintjes-van der Walt (University of Fort Hare) has posted Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases (Potchefstroom Electronic Law Journal, Vol. 19, 2016) on SSRN. Here is the abstract:

One of the most significant consequences of the use of post-conviction DNA testing in the criminal justice system has been the growing recognition that eyewitness identification testimony is simply not as reliable as it was previously considered to be. In approximately 75% of DNA exonerations in the United States, mistaken eyewitness identifications were the principal cause of wrongful convictions. Notwithstanding scientific advances regarding human memory and other factors that could influence identifications by eyewitnesses, courts have not shown eagerness in utilising such scientific knowledge in reaching legal decisions. Two cases have been chosen for discussion in this article. In S v Henderson 27 A 3d 872 (NJ 2011) the New Jersey Supreme Court was the first in State and Federal jurisdictions in the US that adopted a science-based approach to the evaluation of eyewitness evidence. The other case under discussion is S v Mdlongwa 2010 2 SACR 419 (SCA), a South African Supreme Court of Appeal judgment, where the identification of the perpetrator was based on an eyewitness account and the evidence of an expert on CCTV images. In part one of this article the research findings with regard to estimator variables that were acknowledged in S v Henderson are discussed. Part two specifically scrutinizes S v Mdlongwa to determine the extent to which psychological eyewitness research findings are recognised in South Africa as having an influence on the reliability of eyewitness evidence. In Henderson the court recognised that the legal standards governing the admissibility and use of identification evidence lagged far behind the findings of numerous studies in the social sciences. The new wave introduced by S v Henderson has not gone unnoticed in other State courts in the USA. In Massachusetts, for example, the Justices of the Supreme Judicial Court convened a study group on Eyewitness Evidence and the resulting report inter alia recommended judicial notice of modern psychological principles, revised jury eyewitness identification instructions and continuous education of both judges and lawyers. Recognition and education pertaining to these factors can and should be incorporated in South Africa.

November 11, 2016 | Permalink | Comments (0)

Tonry on Reconfiguring American Criminal Justice

Tonry michaelMichael Tonry (University of Minnesota - Twin Cities - School of Law) has posted From Policing to Parole: Reconfiguring American Criminal Justice (Crime and Justice: A Review of Research, Volume 46 (2017 Forthcoming)) on SSRN. Here is the abstract:

American criminal justice has deteriorated in almost every respect in the past 40 years. Overcriminalization is more common and mens rea requirements are lower. Procedural protections against wrongful conviction are weaker. Many police are demoralized and alienated from the communities they serve and lack legitimacy in the eyes of many citizens. Prosecutors have displaced judges in sentencing and routinely abuse their powers to coerce guilty pleas. Mandatory minimum and similar sentencing laws force judges to choose between imposing unjustly severe punishments and circumventing applicable laws. Prisons are overcrowded, often brutalizing and inhumane, and lack resources needed to provide essential services. Community corrections agencies are overwhelmed by caseloads and inadequately funded to help offenders live law-abiding lives. Parole agencies are loath to release eligible inmates and quick to revoke parole. Evidence-based means exist to make major improvements in every facet of American criminal justice. What has been lacking is the political will to use them.

November 11, 2016 | Permalink | Comments (0)

Thursday, November 10, 2016

Ayres on Neonaticide and Feminism

Ayers_susan1Susan Ayres (Texas A&M University School of Law) has posted When Women Kill Newborns: The Rhetoric of Vulnerability (Feminist Challenges or Feminist Rhetorics? Locations, Scholarship, Discourse, 83 (Kristi Cole, ed., 2014)) on SSRN. Here is the abstract:

Neonaticide, the act of killing a newborn, is a global problem. This chapter presents two pairs of vignettes as a way to explore jurisprudence regarding women who commit acts of violence and to argue for the application of a rhetoric of vulnerability as informed by the pre-Socratic concept of kairos, or right-timing and due measure.

The case study approach illustrates the debate about whether women and men should be viewed with equality (sameness) or difference (specificity). In the context of neonaticide, some theorists urge that women who kill must be viewed the same as men (as having agency and responsibility) in order for women to claim their humanity and citizenship. Other theorists urge that women who kill newborns should be viewed different from men (as victims lacking agency) in order to qualify for a lesser offense such as manslaughter, which is the approach taken by England and over twenty other countries that have enacted Infanticide Acts (providing for the lesser offense of manslaughter when a woman is charged with killing her child)? This theoretical debate about sameness versus difference spans various disciplines from law to psychology to sociology, but has practical legal implications not only in criminal law, but in family law and the workplace.

November 10, 2016 | Permalink | Comments (0)

Gaudet et al. on Neuroscience and Predicting Behavior

Lyn M. Gaudet, Jason Kerkmans, Nathaniel E. Anderson and Kent Kiehl (MINDSET, MINDSET, The Mind Research Network and University of New Mexico) have posted Can Neuroscience Help Predict Future Antisocial Behavior? (Fordham Law Review, Vol. 85, No. 2, 2016) on SSRN. Here is the abstract:

Our society is founded on a collection of rules regarding acceptable and unacceptable behavior. These rules are shaped by beliefs and values and are subject to revision through the democratic legislative process. For the most part, the rules are well known and widely followed. Society functions on the premise that its members are aware of and will follow the rules. Our criminal justice system, in turn, is designed to determine if a violation of society’s rules occurred and whether that violation warrants a sanction. If so, the justice system assesses the level of responsibility, culpability, and punishment appropriate for individual offenders. Given these responsibilities, the criminal justice system has to make decisions regarding individuals. These decisions often involve prediction. Indeed, most decisions in the criminal justice system involve some form of prediction. Consider, for example, the following decisions: choosing whether or not to grant bail, probation, or parole to an individual; establishing whether an individual is eligible for treatment; and determining his or her appropriate sentence. Each of these processes involves some type of evaluation of an individual in order to make a decision — ideally an informed, objective, and reliable decision — about what he or she is likely to do or to not do in the future.

Continue reading

November 10, 2016 | Permalink | Comments (0)

Weisbord & Thomas on Sentencing Error

Reid K. Weisbord and George C. Thomas III (Rutgers Law School and Rutgers Law School) have posted Judicial Sentencing Error and the Constitution (Boston University Law Review, Vol. 96, No. 5, 2016) on SSRN. Here is the abstract:

Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization. Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence. Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.

November 10, 2016 | Permalink | Comments (0)

Wednesday, November 9, 2016

Cheng on Publication Bias and False Confessions

Cheng edwardEdward K. Cheng (Vanderbilt Law School) has posted Detection and Correction of Legal Publication Bias on SSRN. Here is the abstract:

Judges, attorneys, and academics commonly use case law surveys to ascertain the law and to predict or make decisions. In some contexts, however, certain legal outcomes may be more likely to be published (and thus observed) than others, potentially distorting impressions from case surveys. In this paper, I propose a method for detecting and correcting legal publication bias based on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations. I apply the method to a simulated dataset of admissibility decisions to confirm its efficacy, then to a newly collected dataset on false confession experts, where the model estimates that the observed 16% admissibility rate may be in reality closer to 28%. The article thus identifies and draws attention to the potential for legal publication bias, and offers a practical statistical tool for detecting and correcting it.

November 9, 2016 | Permalink | Comments (0)