Wednesday, January 20, 2016
Justice Scalia delivered the opinion for the Court in Kansas v. Carr, concluding that the instructions in question did not suggest that mitigating factors must be found beyond a reasonable doubt and that no error occurred in holding a joint sentencing proceeding. Justice Sotomayor filed a dissenting opinion.
Keith A. Findley (University of Wisconsin Law School) has posted Implementing the Lessons from Wrongful Convictions: An Empirical Analysis of Eyewitness Identification Reform Strategies (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:
Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reform. Using eyewitness misidentification -- one of the leading contributors to wrongful convictions and the most thoroughly and scientifically studied of those contributors -- as the focus, this Article begins to fill that void by empirically analyzing a variety of approaches to eyewitness identification reform that have been attempted. This Article establishes a taxonomy of reform efforts ranging from top-down, command-and-control legislation, to entirely bottom-up, essentially laissez-faire approaches, to a hybrid that builds on emerging notions of democratic experimentalism -- a form of "new governance" -- to foster bottom-up experimentation by imposing obligations on police while giving them the freedom to develop their own locally tailored responses to the problem of eyewitness error. The bulk of the empirical analysis assesses the effects of the bottom-up experimentalist approaches to reform, as a contrast to command-and-control approaches. The analysis draws on previously collected national survey data as well as data from a few individual states, most prominently new data developed for this Article on the attempt to foster bottom-up eyewitness identification reform in Wisconsin. While more research is required before one can draw conclusions about which approach works best, the data suggest that the democratic experimentalist model shows promise for considerable, albeit imperfect, implementation of social-science-based eyewitness identification reforms.
Mathilde Cohen (University of Connecticut - School of Law) has posted The French Case for Requiring Juries to Give Reasons. Safeguarding Defendants or Guarding the Judges? (in COMPARATIVE CRIMINAL PROCEDURE HANDBOOK (Jacqueline Ross & Steven Thaman, eds., Elgar Press, 2016 Forthcoming)) on SSRN. Here is the abstract:
This chapter provides a descriptive and analytical examination of the requirement for lay jurors to give reasons for their decisions. In the 2010 case of Taxquet v. Belgium, the European Court of Human Right announced a new right for criminal defendants “to understand verdicts.” This jurisprudence has prompted a number of Council of Europe countries to overhaul their criminal procedure, including France, which now requires that its mixed courts, in which professional and lay judges deliberate collectively, justify their decisions on guilt or innocence. Descriptively, the chapter presents the Strasbourg court’s position as well as the French response to it, which have both been heralded as moral advances for criminal defendants. Analytically, the paper considers the values and purposes of reason-giving. What is this turn to heightened reason-giving trying to achieve?
I argue that while both the European Court of Human Rights and French lawmakers depict reason-giving as an individual human right belonging to criminal defendants, in practice, reason-giving functions as an accountability device primarily designed to solve systemic issues within the criminal justice system. More specifically, as the French case illustrates, the European interest in reason-giving can be tied to hopes for tighter control over trial judges. The chapter concludes that it is hard, if not impossible, to disentangle two facets of reason-giving, namely, reason-giving as a way to achieve fairness to defendants and reason-giving as a way to provide checks on legal actors who might otherwise enjoy unfettered discretion.
This is an unedited draft version of a paper that appeared in final form in Erich Goode, ed, The Handbook of Deviance, Wiley Handbooks in Criminology and Criminal Justice, 2015. The paper surveys the range of regulatory controls that are arrayed against vices such as excessive drug use and gambling, presents a guide to desirable vice policy, and applies that guide to the regulation of casinos. The conclusion offers a look at how the rise of the Internet has influenced vice and its regulation.
Kathrin Dengler-Roscher and Thomas Roscher (University of Ulm and University of Ulm) have posted Do Criminals Behave Rationally? Evidence from the Franco-German Border on SSRN. Here is the abstract:
In this paper we use a new identification strategy to provide further empirical evidence that criminals behave as predicted by rational choice theory. We collected data from German police administration to build an unique data set that contains monthly fuel thefts at gas station level. In a first step, we use exogenous variation of fuel prices to provide empirical evidence that fuel theft reacts to different fuel prices. In a second step, we find empirical evidence that this price effect is stronger when cost-reducing activities of criminals are additionally taken into account. Thereby, we observe the German border area near France where potential French fuel thieves have better opportunities to get away with fuel theft than their German counterparts.
Tuesday, January 19, 2016
Caitlinrose Fisher has posted Treating the Disease or Punishing the Criminal?: Effectively Using Drug Court Sanctions to Treat Substance Use Disorder and Decrease Criminal Conduct (Minnesota Law Review, Vol. 99, No. 747-781, 2014) on SSRN. Here is the abstract:
Drug courts have been on the rise for the past few decades, providing an alternative criminal supervision system for individuals struggling with addiction and drug dependence. Drug courts provide an intensive supervision model, by responding swiftly to probation violations with a series of graduated sanctions. Assuming that drug courts are here to stay, the inevitable question arises: What should the court do if a person cannot abstain from using drugs or otherwise violates the conditions of the drug court? This Note argues that drug courts need to provide a more transparent and consistent method for administering sanctions, drawing upon a model of probation reform, Project HOPE, and the recent reclassification of addiction as “substance use disorder” in the Diagnostic and Statistical Manual (DSM-V). This Note argues that, similar to Project HOPE, drug courts should provide a menu of potential sanctions to participants upon entering the drug court, however this Note also argues that, unlike Project HOPE, the sanctions should vary based upon whether the violation is disease-driven or non-disease-driven. This solution upholds both the therapeutic and penal components of the drug court, and is most likely to lead to compliance with drug court conditions.
A cluster of recent police killings of African American men has sparked an unprecedented amount of public debate regarding policing in the United States. Critics and protesters have made sweeping allegations about the police; a presidential commission has been formed to study police misconduct; and reforms are being debated. These events provide a backdrop for this article’s review of recent poll data and discussion of research regarding police relations with African Americans, Latinos, and whites.
in criminal law and procedure ejournals are here. The usual disclaimers apply. A list for the ejournal focused solely on criminal procedure is here, and for the ejournal focused solely on criminal law is here.
|1||798||Why the FBI's Justifiable Homicide Statistics are a Deceptive Measure of Defensive Gun Use
Clayton E. Cramer
College of Western Idaho
Date posted to database: 21 Dec 2015
|2||754||Do Background Checks on Private Gun Transfers Help Stop Mass Public Shootings?
John R. Lott
Crime Prevention Research Center
Date posted to database: 8 Jan 2016
|3||461||The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment
James J. Duane
Regent University - School of Law
Date posted to database: 7 Jan 2016
|4||278||The Path to Exoneration
Jon B Gould and Richard A. Leo
American University - School of Public Affairs and University of San Francisco - School of Law
Date posted to database: 24 Nov 2015
|5||270||The Promises and Perils of Evidence-Based Corrections
Cecelia M. Klingele
University of Wisconsin Law School
Date posted to database: 2 Dec 2015
|6||171||What's Missing from Sexual Assault Prevention and Response
Reggie D. Yager
Government of the United States of America - Judge Advocate General’s Corps
Date posted to database: 3 Dec 2015
New York University School of Law
Date posted to database: 17 Nov 2015
|8||136||Large-Capacity Magazines and the Casualty Counts in Mass Shootings: The Plausibility of Linkages
Florida State University College of Criminology and Criminal Justice
Date posted to database: 8 Dec 2015
|9||122||Throwaway Children: The Tragic Consequences of a False Narrative
Catherine L. Carpenter
Southwestern Law School
Date posted to database: 30 Dec 2015
|10||117||Civil Forfeiture and the Constitution
University of Virginia School of Law
Date posted to database: 11 Dec 2015
Recent police killings have prompted a national conversation about the need for police reform. Most conversation has concerned the types of reforms that might improve policing. Equal consideration should be given to which actors can most effectively pursue these reforms. In this Essay, I suggest three qualities that police reformers need to be effective: leverage over law enforcement agencies to demand reforms; motivation to improve policing; and resources to do their work. I use this framework to assess the efficacy of those most commonly called upon to reform the police, propose strengthening reformers in the areas in which they are lacking, and suggest ways in which reformers might collaborate to draw on their comparative strengths.
Monday, January 18, 2016
Roderic Broadhurst , Ross Maller , Max Maller and Brigitte Bouhours (Australian National University (ANU) , Australian National University (ANU) - School of Finance and Applied Statistics , University of Western Australia - Faculty of Law and Australian National University (ANU)) have posted The Recidivism of Homicide Offenders in Western Australia on SSRN. Here is the abstract:
Popular perceptions concerning the recidivism of extremely violent offenders - in particular, homicide offenders - are contradictory. Perceptions vary from one extreme - that such offenders rarely commit further violent offences - to the opposite end of the spectrum, where it is thought that they remain high risks on release from custody. The present study, the first of its kind in Australia, draws on the records of persons arrested in Western Australia over the period 1984-2005 to provide accurate measures of the recidivism of this small but potentially dangerous group, and to make rigorous comparisons between specific types of homicide offenders.
Using survival analysis techniques, we accurately estimate and analyse the long-term rate of recidivism of 1,088 individuals arrested and charged for homicide in Western Australia between 1st January 1984 and 31st December 2005.
Paul G. Cassell and James R. Marsh (University of Utah - S.J. Quinney College of Law and Marsh Law Firm PLLC) have posted Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response (Ohio State Journal of Criminal Law, 2015) on SSRN. Here is the abstract:
In this article, we have reviewed the legal issues surrounding restitution for child pornography victims. In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses. Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.
Saturday, January 16, 2016
Issue summaries are from ScotusBlog, which also links to papers:
- McDonnell v. United States: the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws. The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial.
- Manuel v. Joliet, Ill.: Whether an individual who claims to have been a victim of police fabrication of evidence has a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.
Friday, January 15, 2016
Thomas D. Lyon and Stacia N. Stolzenberg (University of Southern California - Gould School of Law and Arizona State University (ASU) - School of Criminology & Criminal Justice) have posted Repeated Self- and Peer-Review Leads to Continuous Improvement in Child Interviewing Performance (5 Journal of Forensic Social Work 20 (2015)) on SSRN. Here is the abstract:
The present study examined whether a training model that focuses on consistent exposure to protocol procedure, self-evaluation, and intensive peer-review sessions could improve interviewers’ ability to adhere to best practices. Law students (N = 19) interviewed 5- to 10-year-old children on a weekly basis as part of a semester-long forensic child interviewing class. They transcribed their interviews, and participated in 1-hr self- and peer-reviews. The proportion of each question type was calculated (option-posing, Wh- questions [what, how, where, why, when, and who], and open-invitations) within each interview for each interviewer. Across 10 weeks of interviews, interviewers consistently improved their performance, decreasing the proportion of option-posing questions by 31% and increasing the proportion of open-invitations by 47%. All interviewers improved. The present study suggests that with consistent self-evaluation and peer-review, forensic interviewers can incrementally improve their performance.
Mary Anne Franks (University of Miami School of Law) has posted How Stand-Your-Ground Laws Hijacked Self-Defense (Guns and Contemporary Society: The Past, Present, and Future of Firearms and Firearm Policy, Vol. 3 (Glen Utter, ed.), 2016) on SSRN. Here is the abstract:
In 2005 Florida passed the nation’s first so-called stand-your-ground law. By 2014 stand-your-ground laws had been passed in thirty-three states, transforming the legal landscape of self-defense. These laws significantly alter the historical understanding of justifiable force, ostensibly in order to clarify and strengthen the concept of justifiable self-defense and enhance public safety. The real accomplishment of these laws, however, has been to encourage the use of deadly force as a first, instead of a last, resort. Not only have these laws failed to deter crime, they have encouraged the escalation to deadly force in situations that do not call for it. Homicide rates increased in states with stand-your-ground laws after passing the legislation, and these states have higher homicide rates than states without stand-your-ground laws. The laws have encouraged the unnecessary use of deadly force on the part of those who have least reason to use it, and inhibited the use of deadly force by those most vulnerable to attack. These laws have undermined the limited protections victims of domestic violence have achieved after decades of reform efforts and worsened existing racial disparities in the criminal justice system. Stand-your-ground laws do violence to the very concept of self-defense by conflating self-defense with gun use, encouraging vigilantism and violent escalation, and exploiting delusions of heroic prowess. True reform of the legal and social concept of self-defense should focus on clarifying when deadly force is truly necessary and reasonable. Such a reform effort should expand protections for women defending themselves against abusers, critically evaluate the disproportionate use of deadly force against unarmed minorities, and encourage training in and access to non-fatal methods of self-defense.
Eve Hanan (University of Baltimore, School of Law) has posted Decriminalizing Violence: A Critique of Restorative Justice and Proposal for Diversionary Mediation (New Mexico Law Review, Forthcoming) on SSRN. Here is the abstract:
With over seven million people in prison or under some form of probation or parole within the United States, the decriminalization of certain crimes may be inevitable. Violent crime, however, is not amenable to decriminalization because of the legitimate state interest in protecting the public from harm. Rather, crimes of violence are diverted from prosecution only through programs such as criminal specialty courts and restorative justice. While these programs may appear to function as a kind of quasi-decriminalization, they often accomplish the opposite by coercing defendants into participation through the threat of prosecution.
Restorative justice is increasingly perceived to be a viable and enlightened alternative to the criminal justice system. Enthusiasm for restorative justice, however, should be tempered. Its emphasis on therapeutic healing and offender accountability masks due process concerns and coercive power differentials. Moreover, the rhetoric of “victim” and “offender” does not account for ambiguity in violent conflict, rendering restorative justice ineffective in addressing many criminal cases.
Thomas D. Waterman , Mark W. Bennett and David C. Waterman (Iowa Supreme Court , U.S. District Court (Northern District of Iowa) and United States Courts - United States Court of Appeals for the Eighth Circuit) have posted A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers (Drake Law Review, Vol. 64, 2-16, Forthcoming) on SSRN. Here is the abstract:
An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.
Paul Robinson (University of Pennsylvania Law School) has this piece in the Chronicle of Higher Education. In part:
Indeed, it is this aspect of criminal law — its commitment to imposing liability only when there is sufficient personal blameworthiness — that has given it the moral prescriptive power that it has. The criminal law that punishes without regard to blame loses moral credibility with the community it governs and is discredited and ignored. A criminal law that earns moral credibility with the community is one that has the power to persuade people to internalize its norms.
Ironically, it is the reformers seeking to change existing norms — such as the norms of sexual consent on college campuses — who would most benefit from a criminal law that has earned moral credibility. It is their reform efforts that are most injured when the law’s credibility is damaged by using affirmative consent as a standard when determining guilt.
Thursday, January 14, 2016
James J. Duane (Regent University - School of Law) has posted The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment (Stanford Journal of Criminal Law and Policy, Vol. 3, p.1, 2015) on SSRN. Here is the abstract:
This year marks the fiftieth anniversary of the Supreme Court's landmark ruling in Griffin v. California, 380 U.S. 609 (1965), which forbids the drawing of adverse inferences from a criminal defendant's decision to exercise his Fifth Amendment privilege at trial because that would unfairly penalize the defendant for exercising a constitutional privilege. But the decision did not immediately answer a host of obvious questions as to how far its logic should extend to other arguably analogous situations, such as defendants who exercise the privilege during pretrial interrogation, at a civil trial, or at sentencing. Only seven years later, the Federal Rules of Evidence Advisory Committee drafted and approved a proposed evidence rule that would have extended Griffin essentially without limitation, but the rule was rejected by Congress, which left the matter to be worked out by the courts.
This Essay examines how the law was taken in one direction by the Supreme Court for the first decade after Griffin, and how those early precedents were severely cut back over the next four decades after conservatives took control of the Court and started limiting those earlier rulings, often by announcing unprincipled distinctions that were the only possible way to get around those precedents. The Essay shows how the Court's overt hostility toward those precedents has precisely mirrored the sort of judicial reasoning that Justice Scalia once mockingly compared to judges who see themselves and previous members of the Court as contestants in a game of Scrabble or football — and how this process has created a body of legal doctrine that it is utterly chaotic and unprincipled.
Vincent Stark (Albany County District Attorney's Office) has posted New York Discovery Reform Proposals: A Critical Assessment (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:
In recent years, defense attorneys in New York have argued that it is time for a change in New York’s discovery regime. According to these critics, New York lags behind other states in so-called discovery reform. Those same critics charge that New York’s discovery statute is “outdated” and “unfair.” To them, the question of reform is a “critical” issue that New York must confront. Although several well-researched documents have been produced by proponents of reform, there is a decided lack of scholarship on the other side of the issue.
This paper examines proponents’ claims with a critical eye, and concludes that their proposed reforms would not achieve their ends. More important, those same reforms would have deleterious effects on the operation of the criminal justice system and would, ultimately, make the public less safe.
Wednesday, January 13, 2016
Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him. This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record. Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency. Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals -- who are unlikely to recidivate -- from people who have high criminal tendencies. Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record. On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time. Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.