Tuesday, April 12, 2016
Federico Picinali (London School of Economics & Political Science (LSE)) has posted Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay on SSRN. Here is the abstract:
Scholars writing on theories of punishment generally try to answer two related questions: what human behaviour should be criminalised and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing – i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action – in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making, the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond reasonable doubt’ is gaining increasing attention in the scholarship. However, no one has yet given sufficient consideration to the fact that theories of punishment ignore a particular way in which human decision-making handles the problem of uncertainty. In our everyday life we often decide in an analogue, rather than a binary fashion.
What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy – as opposed to those made by other criminal justice institutions – is a challenge. Holding others – not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship. They also can can promote police compliance with legal and democratic norms. Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy.
Stephen Rushin and Griffin Sims Edwards (University of Alabama - School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics) have posted De-Policing (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
Critics have long claimed that when the law regulates police behavior it inadvertently reduces officer aggressiveness, thereby increasing crime. This hypothesis has taken on new significance in recent years as prominent politicians and law enforcement leaders have argued that increased oversight of police officers in the wake of the events in Ferguson, Missouri has led to an increase in national crime rates. Using a panel of American law enforcement agencies and difference-in-difference regression analyses, this Article tests whether the introduction of public scrutiny or external regulation is associated with changes in crime rates. To do this, this Article relies on an original dataset of all police departments that have been subject to federally mandated reform under 42 U.S.C. § 14141 — the most invasive form of modern American police regulation. This Article finds that the introduction of § 14141 regulation was associated with a statistically significant uptick in crime rates in affected jurisdictions. This uptick in crime was concentrated in the years immediately after federal intervention and diminished over time. This finding suggests that police departments may experience growing pains when faced with external regulation.
Craig Forcese and Kent Roach (University of Ottawa - Common Law Section and University of Toronto - Faculty of Law) have posted Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime (Alberta Law Review, Vol. 53, No. 1, 2015) on SSRN. Here is the abstract:
Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.
Philip Stenning and Clifford Shearing (Griffith University and Griffith Institute of Criminology) have posted The Shifting Boundaries of Policing: Globalization and its Possibilities (In: Newburn, T. & Peay, J. Eds. Policing: Politics, Culture and Control: Essays in Honour of Robert Reiner. Oxford: Hart Publishing, 265 -284) on SSRN. Here is the abstract:
In this chapter, we review these recent developments and their implications for our current understandings of ‘policing’ -- developments that have made very clear that indeed policing has been, and is still being, fundamentally transformed in a wide variety of ways. When we first started to speak of these developments we spoke of a “quiet revolution” (Stenning and Shearing 1980).
Monday, April 11, 2016
Alice Woolley (University of Calgary) has posted Hard Questions and Innocent Clients: The Normative Framework of the Three Hardest Questions, and the Plea Bargaining Problem (Hofstra Law Review, Vol. 44, No. 4, 2016) on SSRN. Here is the abstract:
What makes an ethical question “hard”? Monroe Freedman’s “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” assessed hard questions about discrediting truthful witnesses, presenting perjured testimony and providing advice that may prompt the client to lie. It also, however, created a framework for analyzing ethical problems, for knowing when a question is hard, and both what has to be done to answer a hard question and to defend the answer. This paper articulates that framework. It argues that hard questions arise from unresolvable conflicts either between the lawyer’s professional and personal moral obligations, or between different aspects of the lawyer’s professional duties – the duty of fidelity to law and the duty to be a loyal and zealous advocate for a client. The question requires the lawyer to make a choice in which a moral obligation will have to be sacrificed for another one to be fulfilled. While Freedman answers the hard questions he identifies, his point is ultimately that a lawyer must make a conscientious choice as to how to respond to a hard question in the specific circumstances in which the question arises, and be prepared to defend that choice.
Jan Froestad , Clifford Shearing and Melani Van der Merwe (Bergen University College , Griffith Institute of Criminology and University of Cape Town (UCT)) have posted Criminology: Re-Imagining Security and Risk (In: Bourbeau, P. Ed. Security: Dialogue across Disciplines. Cambridge: Cambridge University Press 177-195) on SSRN. Here is the abstract:
In this chapter we explore the history of “crime” and “security” and how it is that “security” has begun to move closer to the centre of the criminological stage. Central to these developments, we will argue, has been criminology’s “utilitarian” character, which Foucault so caustically depreciates, and the way in which its “use-inspired” (Stokes, 1997) nature, to use a less acerbic term, has coupled developments within criminology to the shifting priorities of practical politics. In developing our arguments, our focus will be on criminology within English-speaking contexts as it is here that contemporary criminology has been primarily shaped.
Gregg D. Caruso (SUNY Corning) has posted Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model ((2016) Southwest Philosophy Review 32 (1): 25-48) on SSRN. Here is the abstract:
One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per se face significant independent moral objections (Pereboom, 2014, p. 153). Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior — in particular incapacitation, rehabilitation, and alteration of relevant social conditions — and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model — which I call the public health-quarantine model — provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own.
Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis. Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings - approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.
Edward Rhine , Joan Petersilia and Kevin R Reitz (Ohio State University (OSU) - Department of Sociology , Stanford University and University of Minnesota Law School) have posted Improving Parole Release in America (Federal Sentencing Reporter, Vol. 28, No. 2, 2015) on SSRN. Here is the abstract:
This article lays out a ten-point program for the improvement of discretionary parole-release systems in America. Taken together, our recommendations coalesce into an ambitious model that has never before existed in the United States. Even if adopted separately, our recommendations would achieve substantial incremental improvements in the current practices of all paroling systems.
Sunday, April 10, 2016
|1||487||Defending the Indefensible? The Increasingly Difficult Job of Defending Soldiers Accused of Sexual Assault
Mason S. Weiss
Government of the United States of America - Army
Date posted to database: 7 Mar 2016
|2||478||Policing Hoover's Ghost: The Privilege for Law Enforcement Techniques
Stephen W. Smith
Texas Southern University - Thurgood Marshall School of Law
Date posted to database: 2 Mar 2016
|3||420||How Private Insurers Regulate Public Police
University of Chicago Law School
Date posted to database: 19 Feb 2016
|5||296||Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web
UC Hastings College of the Law
Date posted to database: 7 Mar 2016 [4th last week]
|6||275||The Constitutional Regulation of Forensic Evidence
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 8 Feb 2016 [5th last week]
|7||220||Trial by Machine
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 9 Mar 2016
|8||140||'They Have All the Power': Youth/Police Encounters on Chicago's South Side
Craig B. Futterman, Chaclyn Hunt and Jamie Kalven
University of Chicago Law School, Invisible Institute and Invisible Institute
Date posted to database: 27 Mar 2016 [new to top ten]
|9||119||Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy
Bryce Clayton Newell
Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)
Date posted to database: 4 Mar 2016
|10||119||High Pain, No Gain: How Juvenile Administrative Fees Harm Low-Income Families in Alameda County, California
Jeffrey Selbin and Stephanie Campos
University of California, Berkeley - School of Law and University of California, Berkeley - School of Law
Date posted to database: 29 Feb 2016 [new to top ten]
Saturday, April 9, 2016
Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.
|1||270||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 [new to top ten]
|2||132||If Robots Cause Harm, Who Is to Blame? Self-Driving Cars and Criminal Liability
Sabine Gless, Emily Silverman and Thomas Weigend
University of Basel, Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Foreign and International Criminal Law and University of Cologne
Date posted to database: 2 Feb 2016
|3||116||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||116||The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium's Euthanasia Regime for the Canadian Post-Carter Era
University of Toronto - Faculty of Law
Date posted to database: 26 Feb 2016 [6th last week]
University of Alabama School of Law
Date posted to database: 10 Feb 2016 [4th last week]
|6||93||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]
|7||68||The Ability and Responsibility of Corporate Law to Improve Criminal Punishment
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 10 Feb 2016 [8th last week]
Corey Rayburn Yung
University of Kansas School of Law
Date posted to database: 8 Mar 2016 [9th last week]
|9||50||Equity, Not Mercy
Arizona State University - College of Law
Date posted to database: 20 Feb 2016 [new to top ten]
|10||50||Tort Concepts in Traffic Crimes
Noah M Kazis
Date posted to database: 20 Feb 2016 [new to top ten]
Friday, April 8, 2016
Although the U.S. Supreme Court’s decision in Miranda v. Arizona purported to set forth a clear, bright-line rule, numerous difficult subsidiary issues have developed in the past fifty years. These include: (1) what is custody?; (2) what is interrogation?; (3) when are the Miranda rights successfully waived?; (4) when are the Miranda rights successfully invoked?; (5) should the indirect fruits of unwarned interrogation, such as physical evidence and later warned statements, be admissible?; (6) should the products of unwarned interrogation be admissible for impeachment?; and (7) are there any exceptions to the Miranda rule? The Court’s decisions resolving these issues have often not been a model of clarity. Sometimes, a majority of the Court cannot even agree on a single rationale.
Much of this confusion stems directly from a central ambiguity in the Miranda decision itself, for the Court in that case tried to do two things at once: prescribe concrete guidelines for police during custodial interrogation, and provide similarly clear benchmarks for courts in determining the admissibility of statements taken during those interrogations.
Patrick Parkinson (University of Sydney - Faculty of Law) has posted Specialist Prosecution Units and Courts: A Review of the Literature on SSRN. Here is the abstract:
The Royal Commission into Institutional Responses to Child Sexual Abuse in Australia commissioned this literature review to discern the potential benefits of using specialist prosecution units and courts to deal with child sexual abuse cases. While the notion of a specialist prosecution unit is relatively straightforward, it is much more difficult to define a specialist court. Some jurisdictions identify courts with specialist labels when in reality the court is merely a specialist docket within a generalist court. Many specialist courts do not have specialist judges.
There are no specialist courts that deal only in sex offences against children. The main evidence about the efficacy of specialist court approaches to sex offences (including offences against adults) comes from South Africa and New York. The evidence for the efficacy of the South African Sexual Offences Court is strong, taking into account the complexities of South Africa’s multiracial and multicultural society and the scale of its social needs. The Sexual Offences Courts have clearly made a difference to conviction rates, especially where well supported by services for victims of sexual assault.
Crystal Marie Etue (Southern University Law Center, Students) has posted Johnson v. United States: A Breach in the Social Contract? (Southern University Law Review, Spring 2016, Forthcoming) on SSRN. Here is the abstract:
John Adams once said, “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.” It is highly doubtful however, that Mr. Adams had a defendant like Samuel Johnson in mind when he spoke of the less important task of punishing the guilty. Last term, the Supreme Court reversed decades of its own holdings when it declared the residual clause of the Armed Career Criminal Act (“ACCA”) void for vagueness in Johnson v. United States. In one fell swoop, the Supreme Court’s bold move in conjunction with Congress’s failure to amend the statute placed American society unnecessarily exposed and at risk.
Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start by reclaiming a more measured approach to unlawful assembly that recognizes both constitutional and common sense limitations.
Thursday, April 7, 2016
Paul McGorrery (Deakin University, Geelong, Australia - Deakin Law School) has posted The Limited Impact of Facebook and the Displacement Effect on the Admissibility of Identification Evidence ((2015) 39(4) Crim LJ 207-218) on SSRN. Here is the abstract:
Eyewitness identification evidence is perhaps the most common and most crucial evidence in successfully prosecuting many alleged offenders. It is also a type of evidence that is highly susceptible to fallibility. One cause of this fallibility is the displacement effect, a psychological phenomenon in which the memory of a person’s appearance can be unconsciously, and falsely, displaced with a subsequent conception of what that person might have looked like. With the advent of Facebook and other social networking sites, there is now a very real risk of witnesses searching Facebook and displacing their memory of an actual offender with an image of someone else. There are two issues arising from this. First, the Facebook identification itself can tend to occur in relatively suggestible circumstances, which may render it unreliable and therefore inadmissible. Second, any subsequent identification procedure conducted by police may be tainted by the displacement effect superimposing the unreliable Facebook identification onto their memory of the crime. The years 2013 and 2014 saw five cases across Australian jurisdictions consider how Facebook has exacerbated the potential unreliability of identification evidence, in particular due to the displacement effect.
Elaine Craig (Dalhousie University - Schulich School of Law) has posted Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada's Rape Shield Provisions (Forthcoming Canadian Bar Review) on SSRN. Here is the abstract:
Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use of this type of evidence. A lack of clarity as to how section 276 works, and the ongoing reliance on outdated stereotypes about sexual assault to interpret the provisions, are particularly problematic because trial judges continue to face applications to adduce evidence of a complainant’s sexuality activity which are inflammatory, discriminatory, and clearly excluded by section 276 of the Criminal Code. The reality that some defence counsel continue to ignore, or attempt to undermine, the legal rules dictated by section 276 heightens the need for competence, rigor, and accuracy among trial judges tasked with the adjudication of these applications. Following a brief explanation of how Canada’s rape shield regime works, four types of problems with the interpretation and application of section 276 are identified using examples from recent cases.
Wednesday, April 6, 2016
Richard A. Leo (University of San Francisco - School of Law) has posted Has the Innocence Movement Become an Exoneration Movement? The Risks and Rewards of Redefining Innocence (Daniel Medwed, ed., Innocent Reflections: A Quarter Century of DNA Exonerations (Cambridge University Press 2016)) on SSRN. Here is the abstract:
This chapter describes the conceptual move away from factual innocence to legal exonerations based on new evidence of innocence as the emerging intellectual foundation of the Innocence Movement. The chapter also analyzes the costs and benefits of this paradigm shift in how we count, classify, talk, and think about the problem of innocence in America.
The DNA revolution and its ripple effects in American criminal justice have demonstrated that the problem of wrongful conviction in America is structural and persistent. The use of post-conviction DNA testing created the opportunity for an Innocence Movement to emerge, and the DNA exonerations of the last 25 years have transformed lay and official perceptions about the problem and prevalence of wrongful conviction in America and have served as the foundation for many criminal justice policy reform proposals.