CrimProf Blog

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

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Sunday, March 8, 2015

Staihar on Proportionality and Punishment

Jim Staihar (University of Maryland - Robert H. Smith School of Business) has posted Proportionality and Punishment (Iowa Law Review, Vol. 100, No. 3, 2015) on SSRN. Here is the abstract:

In the literature on the justification of punishment, unfair advantage theories of punitive desert are prevalent. Several variants have been defended. Although they differ in details, each assumes that a criminal would obtain some unfair advantage or, in other words, an illicit benefit unless he were punished. Criminals deserve to be punished because punishing them is necessary to remove this illicit benefit. In spite of the efforts to defend this sort of theory, none proposed so far in the literature provides a plausible account of the proportionality of punitive desert. This Essay defends a novel unfair advantage theory of punitive desert that is the first to account plausibly for the proportionality of punitive desert. Because this theory explains why and how much criminals deserve to be punished, it should play an important deontological role in limiting the severity of punishments that the state is morally permitted to impose on offenders.

March 8, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 1,477 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 
2 376 California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State 
Marina FisherNathaniel MillerLindsay Walter andJeffrey Selbin 
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law 
Date posted to database: 4 Feb 2015 [3rd last week]
3 325 Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence 
Craig Forcese and Kent Roach 
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law 
Date posted to database: 9 Jan 2015 [2nd last week]
4 296 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 
5 275 Cybersecurity: What About U.S. Policy? 
Lawrence J. Trautman 
American University 
Date posted to database: 13 Jan 2015 [10th last week]
6 212 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
Date posted to database: 24 Dec 2014 [5th last week]
7 168 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 
8 166 Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 
Atif R. Mian and Amir Sufi 
Princeton University - Department of Economics and University of Chicago - Booth School of Business 
Date posted to database: 8 Feb 2015 [6th last week]
9 149 Bondholders and Securities Class Actions 
James J. Park 
University of California, Los Angeles (UCLA) - School of Law 
Date posted to database: 16 Jan 2015 
10 144 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Independent 
Date posted to database: 25 Jan 2015 [8th last week]

March 8, 2015 | Permalink | Comments (0)

Saturday, March 7, 2015

Berry on Life-with-Hope Sentencing

Berry williamWilliam W. Berry III (University of Mississippi School of Law) has posted Life-with-Hope Sentencing: The Argument for Replacing Life-Without-Parole Sentences with Presumptive Life Sentences on SSRN. Here is the abstract:

The United States has over 41,000 people serving life-without-parole (LWOP) sentences. It is a phenomenon unparalleled in the history of the world. This rise is attributable to a strange confluence of (1) the increasing use of LWOP as an alternative to the death penalty, (2) abolition of parole by states as part of truth-in-sentencing reforms, and (3) the rise in mandatory minimum sentences, particularly related to sale and distribution of illegal drugs. Nowhere has a state or federal government examined the appropriateness of LWOP sentences or developed a framework to assess whether an offender warrants such a sentence.

Given the historical thoughtlessness of determining who receives this serious punishment and the wild increase in such sentences, LWOP sentences clearly need reform. This Article attempts to address this epidemic by demonstrating the shortcomings of LWOP and proposing an alternative sentencing model for serious offenders.

Continue reading

March 7, 2015 | Permalink | Comments (0)

Jackson & Gau on Trust, Legitimacy, and Legal Authority

Jonathan Jackson and Jacinta Gau (London School of Economics & Political Science - Department of Methodology and University of Central Florida - College of Health and Public Affairs) have posted Carving Up Concepts? Differentiating between Trust and Legitimacy in Public Attitudes Towards Legal Authority on SSRN. Here is the abstract:

In recent years, scholars of criminal justice and criminology have brought legitimacy to the forefront of academic and policy discussion. The focus has been primarily – though not exclusively – on legitimacy within policing, with the most common approach framing legitimacy as a self-regulatory scheme that can enhance widespread voluntary compliance with the law and cooperation with legal authorities. In the most influential definition, institutional trust is assumed to be an integral element of legitimacy (Tyler, 2006a, 2006b). For an individual to find the police to be legitimate, for instance, she must feel that it is her positive duty to obey the instructions of police officers (she grants the police the rightful authority to dictate appropriate behavior), but she must also believe that police officers exercise their power appropriately. In this chapter we argue that the nature, measurement and motivating force of trust and legitimacy is in need of further explication. Considering these two concepts in a context of a type of authority that is both coercive and consent-based in nature, we make the case that legitimacy is (a) the belief that an institution exhibits properties that justify its power and (b) a duty to obey that emerges out of this sense of appropriateness; that trust is about positive expectations about valued behavior from institutional officials; and that legitimacy and institutional trust overlap if one assumes that people judge the appropriateness of the police as an institution on the basis of the appropriateness of officers' use of power. Our discussion will, we hope, be of broad theoretical and policy interest.

March 7, 2015 | Permalink | Comments (0)

Friday, March 6, 2015

Edminston on Property Conditions and Neighborhood Crime

Kelly D. Edmiston has posted Property Conditions and Neighborhood Crime on SSRN. Here is the abstract:

A critical factor in quality of life is feeling safe, and thus, crime is a critical factor in neighborhood quality of life. The goal of this paper is to evaluate the relationship between the physical condition of properties in low- and moderate-income areas in Kansas City, Mo. and the incidence of crime.

OLS results show block property conditions to be a significant predictor of block crime rates. Specifically, a one-point lower score on property conditions (on a five-point scale), is associated with a 10 percent higher violent crime rate and a 27 percent higher property crime rate. Because a number of blocks had zero crime reports, a negative binomial model also was estimated using counts of offenses on each block and represents a preferred methodology. The results show little relationship between property conditions and offenses against persons (violent crime) but continue to show a significant negative relationship between property conditions and property crime. The results of the analysis suggest that while crime may not be the chief motivating factor in revitalizing neighborhoods, lower crime may be a significant secondary benefit.

March 6, 2015 | Permalink | Comments (0)

Rapping on Popular Culture and the American Criminal Justice Narrative

Rapping jonathanJonathan Rapping (Atlanta's John Marshall Law School) has posted The Revolution Will Be Televised: Popular Culture and the American Criminal Justice Narrative (New England Journal on Criminal and Civil Confinement, Vol. 51, p. 5, 2015) on SSRN. Here is the abstract:

This article considers the role that popular culture must play in helping to transform a criminal justice culture that is inconsistent without noblest democratic ideals. It examines the film Gideon's Army and the work of the organization behind the film, Gideon's Promise. It points out the valuable contribution Gideon's Army makes in raising awareness about the important role of public defenders in our criminal justice system and how far short we have fallen from fulfilling the constitutional right to counsel. It suggests, however, that there is much more to be done and that there is an important role to be played by filmmakers and storytellers who are interested in helping realize equal justice.

March 6, 2015 | Permalink | Comments (0)

Appleman on Gothic Stories and Mens Rea

Appleman lauraLaura I. Appleman (Willamette University College of Law) has posted Gothic Stories, Mens Rea, and Nineteenth Century American Criminal Law (THE ASHGATE RESEARCH COMPANION TO LAW AND HUMANITIES IN NINETEENTH-CENTURY AMERICA, eds. Nan Goodman and Simon Stern (Ashgate Press 2015) Forthcoming) on SSRN. Here is the abstract:

The early-to-mid nineteenth century was a turbulent period for the cities of an expanding America. Beginning in the 1830’s, it was a time of “epic homicidal riots,” which prompted the creation of the first urban police force. The rise of the police helped reduce the rates of homicide dramatically. Concomitant with the explosion of real-life murder and the rise of the first police force was also a particular renaissance moment for gothic storytelling, focusing in large part on the wily criminal and the deductive reasoning used by these early police to track, apprehend and convict these offenders. What influence did these tremendously popular stories have on the creation of 19th-century criminal law and the public’s understanding of the 19th-century criminal?

Continue reading

March 6, 2015 | Permalink | Comments (0)

Binder on Homicide

Binder guyoraGuyora Binder (State University of New York (SUNY), Buffalo, SUNY Buffalo Law School) has posted Homicide (Chapter 31 in The Oxford Handbook of Criminal Law, Marcus Dubber and Tatjana Hörnle Eds.) on SSRN. Here is the abstract:

This review of the development of homicide law in England and the United States shows that contemporary law reflects the sustained influence of a utilitarian reform movement. That movement organized legal thought around a conception of human action as risking or causing results, and a conception of the function of law as minimizing cost. Within this framework, homicide was conceptualized as the expected causation of death. Traditional conceptions of homicide emphasizing manifestly violent acts or antisocial motives came to be seen as archaic and confused. During this development, requirements of violence were first reinterpreted as evidentiary presumptions of culpability, and then criticized as formalistic legal fictions. In this way homicide evolved from a crime of killing to a crime of causing.

March 6, 2015 | Permalink | Comments (1)

Simmons on The Missed Opportunities of Riley v. California

Simmons ricRic Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted The Missed Opportunities of Riley v. California (Ohio State Journal of Criminal Law, Vol. 12, No. 253, 2014) on SSRN. Here is the abstract:

In the landmark case of Riley v. California, the Supreme Court prohibited law enforcement officers from searching a defendant's cell phone as part of a search incident to a lawful arrest. The unanimous decision was widely regarded as a major victory for defendant's rights, but in fact the Court missed two significant opportunities when deciding this case. First, the Court failed to repair the critically flawed search incident to arrest doctrine, and second, the court failed to provide useful guidance for law enforcement officers faced with emerging technologies. Like the Court’s other search incident to arrest opinions, Riley’s rationale was confused and inconsistent. And like the Court’s other Fourth Amendment technology cases, Riley’s arguments focused too much on the technical details of a specific new technology and not enough on basic Fourth Amendment principles. As a result, the true legacy of Riley is likely to be further confusion both in rules and in underlying doctrine.

March 6, 2015 | Permalink | Comments (0)

Thursday, March 5, 2015

Mungan & Klick on Criminals' Risk Preferences

Murat C. Mungan and Jonathan Klick (Florida State University - College of Law and University of Pennsylvania Law School) have posted Identifying Criminals’ Risk Preferences on SSRN. Here is the abstract:

There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and may therefore have unintended negative consequences.

In this article, we first demonstrate, contrary to most of the existing literature, that CAP consistent behavior does not imply risk-seeking behavior.

Continue reading

March 5, 2015 | Permalink | Comments (0)

Slobogin on Standing and Covert Surveillance

Slobogin_bigChristopher Slobogin (Vanderbilt University - Law School) has posted Standing and Covert Surveillance (Pepperdine Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article, written for a symposium on national security, describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the “chilling” arguments that the Supreme Court has rejected in Fourth and First Amendment cases. Additionally, the theory provides a third, independent cause of action against covert surveillance that is based on separation of powers principles, specifically the notion that, in a representative democracy governed by administrative law principles, one role of the courts is to ensure that the legislative branch authorizes and monitors significant executive actions and that the executive branch promulgates reasonable regulations governing itself. Litigants who can show that their participation in the political process has been concretely compromised by covert surveillance should have standing to bring any of these causes of action.

March 5, 2015 | Permalink | Comments (0)

Wednesday, March 4, 2015

Buller on The Effect of Counsel on Criminal Appeals

Tyler J. Buller has posted The Effect of Counsel on Criminal Appeals (Journal of Appellate Practice & Process, Forthcoming) on SSRN. Here is the abstract:

Iowa’s indigent defendants are represented on appeal by a combination of public defenders in the state appellate defender’s office and private court-appointed attorneys who contract with the state. Existing research about which type of lawyer — institutional defender or ad-hoc assigned attorney — provides better representation is mixed and muddled. This piece contains an original empirical study that explores two calendar years of Iowa criminal appeals and collects objective measures concerning appellate lawyers’ effectiveness. The data reveal that state appellate defenders provide better representation than court-appointed attorneys: appellate defenders obtain more favorable outcomes, they have better filings, and they seek and obtain state-supreme-court review more often.

March 4, 2015 | Permalink | Comments (0)

Roeder et al. on The Crime Decline

Oliver K. Roeder Lauren-Brooke Eisen Julia Bowling Joseph E. Stiglitz and Inimai M. Chettiar (University of Texas at Austin - Department of Economics , New York University (NYU) - Brennan Center for Justice , New York University (NYU) - Brennan Center for Justice , Columbia Business School - Finance and Economics and New York University (NYU) - Brennan Center for Justice) have posted What Caused the Crime Decline? on SSRN. Here is the abstract:

What Caused the Crime Decline? examines one of the nation’s least understood recent phenomena – the dramatic decline in crime nationwide over the past two decades – and analyzes various theories for why it occurred, by reviewing more than 40 years of data from all 50 states and the 50 largest cities. It concludes that over-harsh criminal justice policies, particularly increased incarceration, which rose even more dramatically over the same period, were not the main drivers of the crime decline. In fact, the report finds that increased incarceration has been declining in its effectiveness as a crime control tactic for more than 30 years. Its effect on crime rates since 1990 has been limited, and has been non-existent since 2000.

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March 4, 2015 | Permalink | Comments (0)

Tuesday, March 3, 2015

Carrington on Mississippi Innocence

Carrington tuckerWilliam Tucker Carrington (University of Mississippi - School of Law) has posted Mississippi Innocence: The Convictions and Exonerations of Levon Brooks and Kennedy Brewer and the Failure of the American Promise (Georgetown Journal of Legal Ethics, Vol. 28, No. 123, 2015) on SSRN. Here is the abstract:

After spending a combined thirty-two years behind bars for crimes they did not commit, Levon Brooks, sentenced to life, and Kennedy Brewer, sentenced to death, were exonerated in February, 2008, in Noxubee County, Mississippi. Close attention to innocence cases like these offer a valuable forensic opportunity to observe from ground level just how the criminal justice system works, or doesn’t. Because they occurred in rural Mississippi, the Brooks and Brewer cases present a unique opportunity to consider what contemporary scholarship refers to as our criminal justice system’s new form of Jim Crow: a system of facially colorblind criminal laws that as applied and prosecuted currently imprison masses of poor blacks and relegates still others to lives of permanent second-class citizenship. By establishing the rich historical context in which these two cases occurred, and then engaging in a first-hand account of the crimes, investigations and trials, this article argues, that among other scholarship and commentary, “The New Jim Crow” school of thought neglects what is perhaps the most pernicious failure of true justice: the co-opting of formerly progressive law and policy in order to camouflage what is really nothing more than institutionally sanctioned lynching. While seminal cases like Gideon v. Wainwright and Batson v. Kentucky, for example, which guaranteed the right to counsel and minority representation on criminal petit juries respectively, are honored in letter, the ultimate effect is hortatory and cynical. They are now used to mask a much more sinister result: the affirmative manipulation of what were once true gains in due process and equal protection into measurable false promise and palpable human tragedy. Over time, the efforts to rid the criminal justice system of bias and bigotry – of “Jim Crow” – have been used instead to mask the fact that they are now built into its very structure and doctrine.

March 3, 2015 | Permalink | Comments (0)

Argument about police access to hotel registry under Fourth Amendment

The transcript from the argument in Los Angeles v. Patel is here.

March 3, 2015 | Permalink | Comments (0)

Argument in habeas case

The transcript from the argument in Davis v. Ayala is here.

March 3, 2015 | Permalink | Comments (0)

Argument in confrontation clause case

The transcript of the argument in Ohio v. Clark is here. Lyle Denniston reviews the argument at ScotusBlog

March 3, 2015 | Permalink | Comments (0)

Monday, March 2, 2015

Horwitz on Investigative Holds

Daniel A. Horwitz has posted The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin (45 U. MEM L. REV. __ (Spring 2015 Forthcoming)) on SSRN. Here is the abstract:

This Article critiques the holding adopted by a growing number of courts that law enforcement may delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause for up to forty-eight hours following an arrest as long as a judge or magistrate ultimately determines that the arrest itself was supported by probable cause. Although this issue has largely escaped review within academic literature, the practice of employing investigative detentions against warrantless arrestees is widespread among law enforcement. Of note, whether such investigative detentions comport with the Fourth Amendment has also generated a circuit split between the Eighth Circuit Court of Appeals and one of two irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has similarly divided the appellate courts of at least nine states. 

This Article rejects the notion that law enforcement may ever deliberately delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause (known as a “Gerstein hearing”) in order to facilitate further investigation by law enforcement.

Continue reading

March 2, 2015 | Permalink | Comments (0)

Sunday, March 1, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 1,285 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 
2 315 Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence 
Craig Forcese and Kent Roach 
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law 
Date posted to database: 9 Jan 2015 
3 314 California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State 
Marina FisherNathaniel MillerLindsay Walter andJeffrey Selbin 
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law 
Date posted to database: 4 Feb 2015 [4th last week]
4 268 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 [3rd last week]
5 203 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
Date posted to database: 24 Dec 2014 
6 161 Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 
Atif R. Mian and Amir Sufi 
Princeton University - Department of Economics and University of Chicago - Booth School of Business 
Date posted to database: 8 Feb 2015 [7th last week]
7 160 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 [6th last week)
8 137 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Independent 
Date posted to database: 25 Jan 2015 
9 136 Bondholders and Securities Class Actions 
James J. Park 
University of California, Los Angeles (UCLA) - School of Law 
Date posted to database: 16 Jan 2015 [new to top ten]
10 138 Cybersecurity: What About U.S. Policy? 
Lawrence J. Trautman 
American University 
Date posted to database: 13 Jan 2015 [new to top ten]

March 1, 2015 | Permalink | Comments (0)

Saturday, February 28, 2015

Next week's criminal law/procedure arguments

Issue summary is from ScotusBlog, which also links to papers:

Monday

  • Ohio v. Clark: (1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Tuesday

  • Davis v. Ayala: Whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.
  • City of Los Angeles v. Patel: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

February 28, 2015 | Permalink | Comments (0)