CrimProf Blog

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

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Sunday, April 6, 2014

Fox on Neuro-Voir Dire and the Architecture of Bias

Fox dovDov Fox (University of San Diego: School of Law) has posted Neuro-Voir Dire and the Architecture of Bias (Hastings Law Journal, Vol. 65, p. 101, May 2014, Forthcoming) on SSRN. Here is the abstract:

Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it. 

This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias.

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April 6, 2014 | Permalink | Comments (0)

"Do travelers have a right to leave airport security screening areas without the TSA’s permission?"

Orin Kerr at The Volokh Conspiracy links to and excerpts the argument that they do and then discusses the caselaw that suggests they don't.

April 6, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 648 Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing 
Mark W. Bennett and Ira P. Robbins 
U.S. District Court (Northern District of Iowa) and American University - Washington College of Law 
Date posted to database: 13 Mar 2014 
2 364 The Due Process Exclusionary Rule 
Richard M. Re 
Yale Law School 
Date posted to database: 28 Feb 2014 
3 252 Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction 
Deborah Tuerkheimer 
DePaul University - College of Law 
Date posted to database: 3 Mar 2014
4 248 Law and Neuroscience 
Owen D. JonesJeffrey D. Schall andFrancis X. Shen 
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School 
Date posted to database: 19 Mar 2014 [10th last week]
5 245 Will There Be a Neurolaw Revolution? 
Adam J. Kolber 
Brooklyn Law School 
Date posted to database: 19 Feb 2014 [4th last week]
6 209 Intellectual Property and the Presumption of Innocence 
Irina D. Manta 
Hofstra University - Maurice A. Deane School of Law 
Date posted to database: 5 Feb 2014 
7 205 The Illusory Eighth Amendment 
John F. Stinneford 
University of Florida Levin College of Law 
Date posted to database: 7 Feb 2014
8 173 Exporting FATCA 
Joshua D. Blank and Ruth Mason 
New York University School of Law and University of Virginia School of Law 
Date posted to database: 2 Feb 2014 [new to top ten]
9 173 Willful Blindness, Plausible Deniability and Tippee Liability: SAC, Steven Cohen, and the Court's Opinion in Dirks 
Joan MacLeod Heminway 
University of Tennessee College of Law 
Date posted to database: 9 Feb 2014 [8th last week]
10 222 Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism 
Robert J. SmithJustin D. Levinsonand Zoe Robinson 
University of North Carolina School of Law, University of Hawaii at Manoa - William S. Richardson School of Law and DePaul University College of Law 
Date posted to database: 27 Jan 2014 [5th last week]

April 6, 2014 | Permalink | Comments (0)

"DOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To Defendants"

FourthAmendment.com links to and excerpts this article from TechDirt:

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials.

April 6, 2014 | Permalink | Comments (0)

Friday, April 4, 2014

"DEA administrator claims that marijuana legalization imperils dogs"

Ilya Somin has this post at The Volokh Conspiracy, taking issue with the claim. In part:

Dog owners can reduce the already minor risk still further simply by storing marijuana, chocolate, and other such substances somewhere where the dog can’t reach them.

Meanwhile, every year hundreds or thousands of dogs are needlessly slaughtered in overaggressive police raids undertaken as part of the War on Drugs.Jacob Sullum’scritique of Leonhart’s argument includes links to descriptions of numerous reprehensible incidents of this type. Whether you focus on dogs or on humans, the War on Drugs destroys vastly more lives than it saves.

 

April 4, 2014 | Permalink | Comments (0)

Hamilton on Predicting Violent and Sexual Recidivism in Sentencing

Hamilton melissaMelissa Hamilton (University of Houston Law Center) has posted Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

Risk has become a focal point of criminal justice policy. Officials draw upon the sciences for the best evidence to differentiate between offenders at high risk of being a future threat to society, for whom preventive incapacitation may be justifiable, and those at low risk, for whom diversion might alleviate the overuse of imprisonment. A recent turn in evidence-based practices is to borrow the newest technologies developed in the forensic mental health field to better classify offenders accordingly to their predicted likelihood of recidivism. 

Actuarial risk assessment is considered the new frontier as a progressive sentencing reform, representing best practices in predicting recidivism risk. The actuarial turn is adjudged to offer probabilistic estimates of risk that are objective, reliable, transparent, and logical. Policy groups, state legislatures, judges, and probation offices actively promote the use of actuarial risk assessment, believing the empirically-derived tools effectively standardize sentencing practices, mitigate bias, and thereby increase the legal and moral standing of sentencing outcomes. 

Actuarial prediction is promoted as founded upon scientific and empirical principals. This Article critically analyzes the predictive abilities of actuarial risk prediction tools utilizing statistical, empirical, and legal methods.

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April 4, 2014 | Permalink | Comments (0)

Robinson & Robinson on Punishment and Utopian Communes

Paul H. Robinson and Sarah M. Robinson (University of Pennsylvania Law School and Independent) have posted Punishment: Drop City and the Utopian Communes (Chapter 3, in LIVING BEYOND THE LAW: LESSONS FROM PIRATES, PRISONERS, LEPERS, AND SURVIVORS (Rowman & Littlefield, August 2014, Forthcoming)) on SSRN. Here is the abstract:

Using stories from the utopian non-punishment hippie communes of the late 1960s, the essay challenges today’s anti-punishment movement by demonstrating that the benefits of cooperative action are available only with the adoption of a system for punishing violations of core rules. Rather than being an evil system anathema to right-thinking people, punishment is the lynchpin of the cooperative action that has created human success. 

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April 4, 2014 | Permalink | Comments (0)

Pfaff on Prison Growth

Pfaff johnJohn F. Pfaff (Fordham University School of Law) has posted Escaping from the Standard Story: Why the Conventional Wisdom on Prison Growth is Wrong, and Where We Can Go from Here (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:

Whether as a result of low crime rates, the financial pressures of the 2008 credit crunch, or other factors, policymakers on both sides of the aisle are trying to rein or even reduce the US incarceration rate after an unprecedented forty-year expansion. Unfortunately, reforms are hampered by the fact that we do not have a solid empirical understanding of what caused the explosion in the first place. In fact, the "Standard Story" of prison growth generally overemphasizes less important factors and overlooks more important ones. This essay thus does two things. First, it points out the flaws in five key aspects of the Standard Story: its argument that the War on Drugs is of central importance, that trends in violent and property crimes are relatively unimportant, that longer sentence lengths drive growth, that the "criminal justice system" is a fairly coherent entity advancing specific goals, and that the “politics of crime control” is uniquely dysfunctional. And second, it argues that an increased willingness of the part of prosecutors to file charges — a causal factor almost completely overlooked by the Standard Story — is likely the most important force behind prison growth, at least for the past two decades.

April 4, 2014 | Permalink | Comments (0)

Burris on Sexual Assault in the Military

Matthew David Burris has posted Thinking Slow About Sexual Assault in the Military (22 Buff. J. Gender, L., & Soc. Pol’y ___ (2014-2015), Forthcoming) on SSRN. Here is the abstract:

This article examines the current public discourse on sexual assault in the military through the complementary lenses of behavioral economics and the law. The article evaluates the "crisis" narrative central to this discourse and suggests it is not supportable by the best available data. Moreover, the article suggests that in driving potentially counterproductive public policy initiatives, this narrative is harmful to victims of sexual assault. The article recommends several practical steps the Department of Defense might take in the near-term to expose and rebut this harmful narrative and forestall these potentially counterproductive public policy initiatives. These steps include a reappraisal of the rhetoric senior DoD officials employ when speaking publically about the very real problem of sexual assault in the military, as well as advocating for a "whole of government" approach to gathering data on sexual assault and its victims. The article suggests the evidence-based prevention and response solutions impelled by these data hold out the best hope for reducing the incidence of sexual assault in the military.

April 4, 2014 | Permalink | Comments (0)

Thursday, April 3, 2014

"Months into state experiment, first death officially linked to marijuana legalization in Colorado"

Doug Berman at Sentencing Law & P0licy excerpts and discusses a news report. His concluding remarks:

This story is already getting coverage in national newspapers, and it will now be interesting to see whether and how opponents of marijuana reform might actively use this sad development in support of their arguments against reform efforts.  Notably, at age 19, Levy Thamba was technically underage and thus his recreation marijuana use was not legal.  But that fact itself reinforces the arguments of opponents of marijuana reform that legalization makes it easier and more likely that underage persons will have access and be eager to try marijuana products.

April 3, 2014 | Permalink | Comments (0)

Call for Papers for Conference Honoring Andrew Taslitz

Information is available following the jump.

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April 3, 2014 | Permalink | Comments (0)

Candeub on Akratic Corporations and Dysfunctional Markets

Candeub_adamAdam Candeub (Michigan State University College of Law) has posted Akratic Corporations and Dysfunctional Markets (Virginia Journal of Criminal Law, Vol. 1 (2013)) on SSRN. Here is the abstract:

Manuel Utset presents a new approach for thinking about corporate criminal sanction. He examines the effect of criminal sanction on corporate actors with time inconsistent ("TI") preferences and shows that traditional approaches to deterrence will under-deter these corporate actors. He concludes that "TI corporate actors-and thus corporations-will be systematically under-deterred by the sanctions that are optimal for TC actors [i.e., actors with time consistent preferences]." 

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April 3, 2014 | Permalink | Comments (0)

Royer et al. on Victim Gender and the Death Penalty

Caisa E. Royer Amelia Courtney Hritz Valerie P. Hans Theodore Eisenberg Martin T. Wells John H. Blume III and Sheri Lynn Johnson (Cornell University , Cornell University , Cornell University - School of Law , Cornell University - Law School , Cornell University - School of Law , Cornell University - Law School and Cornell Law School) have posted Victim Gender and the Death Penalty (University of Missouri-Kansas City Law Review, Vol. 82, No. 2, 2014) on SSRN. Here is the abstract:

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.

April 3, 2014 | Permalink | Comments (0)

Bellin on New York City "Stop and Frisk"

Bellin jeffreyJeffrey Bellin (William & Mary Law School) has posted The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk' (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.

April 3, 2014 | Permalink | Comments (0)

Wednesday, April 2, 2014

Jacobi & Kind on Warrants and the Rights-Police Efficiency Trade-Off

Tonja Jacobi and Jonah Kind (Northwestern University - School of Law and Northwestern University - School of Law) have posted Criminal Innovation and the Warrant Requirement: Reconsidering the Rights-Police Efficiency Trade-Off (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale for lowering Fourth Amendment rights is often inapt. We analyze how this impacts both criminal activity and innocent communications that individuals seek to keep private in the digital age. We show that both law enforcement and non-criminal privacy concerns may be better promoted by maintaining the warrant requirement.

April 2, 2014 | Permalink | Comments (0)

Lamparello on Burdens of Proof and Intellectual Disability

Lamparello adamAdam Lamparello (Indiana Tech Law School) has posted Unreasonable Doubt: Warren Hill, AEDPA, and Georgia's Unconstitutional Burden of Proof on SSRN. Here is the abstract:

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd — and arbitrary — result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts — and the court — deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban. It also highlights a deeper problem: the process for determining who faces execution resides in an abyss of arbitrariness where death is not “different,” and “individualized consideration” is illusory.

April 2, 2014 | Permalink | Comments (0)

"Forecasting the uncertain present and future of federal legislative sentencing reform"

Doug Berman at Sentencing Law & Policy links to and excerpts this article at CQ Weekly about the state of federal sentencing reform. Doug's take:

Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.

April 2, 2014 | Permalink | Comments (0)

Unsecured Wi-Fi and Criminals

FindLaw has an interesting post detailing the perils of unsecured networks, including inter alia the possibility of being investigated for possession of child porn that someone else downloaded.

April 2, 2014 | Permalink | Comments (0)

Malhotra on The Immigrant and Miranda

Malhotra anganaAnjana Malhotra (SUNY Buffalo Law School) has posted The Immigrant and Miranda (Southern Methodist University Law Review, Vol. 66, No. 277, 2013) on SSRN. Here is the abstract:

The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this Article breaks new ground by examining judicial responses and specifically the lens of Miranda v. Arizona. This Article examines the divergent and largely aberrant approaches that federal appellate courts have taken to determine whether Miranda warnings and rights apply to custodial inquiries about immigration status that have clear criminal and civil implications.

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April 2, 2014 | Permalink | Comments (0)

Frank on Abolishing Female Prisons

David W. Frank has posted Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration (Berkeley Journal of Gender, Law & Justice, Vol. 29, No. 1, p. 101, 2014) on SSRN. Here is the abstract:

Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem. Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.

April 2, 2014 | Permalink | Comments (0)