CrimProf Blog

Wozniak et al. on Selling Effective Violence Prevention Policies

Kevin Wozniak (Maynooth University) has posted Selling Effective Violence Prevention Policies to the Public: A Nationally Representative Framing Experiment (Pickett, J.T., Ivanov, S., and Wozniak, K.H. (2022). Journal of Experimental Criminology, 18, 387-409) on SSRN. Here is the abstract:

 

Objectives: After years of decreasing public punitiveness and declining crime rates, politicians are seeking evidence-based crime policies to reduce mass incarceration without increasing crime. One such policy that has been implemented in several US cities is the Operation Peacemaker Fellowship (OPF), which incentivizes conformity and program participation by providing monetary stipends to individuals at risk of violent offending, thereby simultaneously reducing violence and incarceration. Yet, there is no evidence about public support for such policies.

Methods: Using a nationally representative survey experiment, we examine public support for violence prevention stipends. We employ a referendum-style, contingent valuation design to measure the impact of tax increases versus tax savings on public opinion, and we randomize message framing that emphasizes the stipend program’s risky versus protective features.

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Allen & Pardo on Evidence, Probability, and Relative Plausibility

Ronald J. Allen & Michael S. Pardo (Northwestern University Pritzker School of Law and Georgetown University Law Center) have posted Evidence, Probability, and Relative Plausibility: A Response to Aitken, Taroni & Bozza (Forthcoming, International Journal of Evidence and Procedure) on SSRN. Here is the abstract:

 

In a recent article, Colin Aitken, Franco Taroni, and Silvia Bozza defend a probabilistic account of juridical proof and critique our “relative plausibility” account on both positive and normative grounds. We are grateful for their thoughtful engagement with our work and for the opportunity to further clarify relative plausibility. In this response, we explain why their critiques fail. First, we explain why their probabilistic alternative is not a plausible account of juridical proof and could not be. Because the account they give of juridical proof cannot possibly be operationalized, any claims of normative superiority are pointless. At a more discrete level, however, aspects of their analysis are valuable and illuminating. In addition to demonstrating problems with the foundation of their argument and their misunderstandings of relative plausibility, we also explain how the issues discussed relate to the important work being done by Aitken, Taroni, and Bozza in the field of forensic science.

Morgan on Disability, Policing, and Punishment

Jamelia Morgan (Northwestern University - Northwestern Pritzker School of Law) has posted Disability, Policing, and Punishment: An Intersectional Approach (Oklahoma Law Review, Vol. 75, No. 169, 2022) on SSRN. Here is the abstract:

 

Disabled people of color are uniquely vulnerable to policing and punishment. Proponents of police reform and, more recently, police abolition note that disabled people, particularly people with psychiatric disabilities, are vulnerable to citation and arrest.

Indeed, data on the high percentages of people in prisons and jails who report having a diagnosed disability lend support to this claim. Some advocates have referred to the criminalization of mental illness as a way to describe these vulnerabilities and ground their calls for change in the criminal legal system. Yet, even the compelling charge that mental illnesses are criminalized, or that prisons and jails are the “new asylums,” fails to fully account for the ways that race and disability work in tandem to render disabled people of color vulnerable to criminal legal system involvement. A more comprehensive account of mass incarceration and how it produces disability-based subordination is needed.

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Chin on National Federal Criminal Bar Admission

Gabriel "Jack" Chin (University of California, Davis - School of Law) has posted Toward National Criminal Bar Admission in U.S. District Courts (Fordham Law Review, Vol. 89, No. 4, 1111 2021) on SSRN. Here is the abstract:

 

This essay proposes that attorneys admitted to any state bar and any U.S. District Court, should be allowed to practice criminal law in all districts in the country. U.S. District Courts control admission to practice in various ways. Roughly, some require admission to the bar of any state, while others require admission to practice in the state where the district is located. The latter approach is difficult to justify. Unlike civil practice, federal criminal practice involves application of textually identical bodies of law which are supposed to be allied uniformly across the United States: The U.S. Code, U.S. Sentencing Guidelines, Federal Rules of Criminal Procedure and Federal Rules of Evidence. In the criminal context, there is almost no connection to the law of the state where the federal court happens to be located. There is also a serious access to justice issue created by limiting criminal practice to those admitted to the bar of the state. Lawyers for the United States can generally practice if admitted to any state bar, so only defenders are limited by the requirement. Affluent defendants can readily pay for local counsel if necessary, and so are not deprived of the assistance of counsel of their choice by this bar admission rule. Primarily, then, it is less affluent clients who are harmed by such a rule. The strong public interest in equal access to justice and economical provision of defense services suggests that there should be some justification for denial of counsel of choice. There does not seem to be such a justification in this context.

"A salacious murder trial is underway in South Carolina"

From NPR, via NACDL's news update:

Attorney Alex Murdaugh is accused of murdering his wife and son and embezzling millions from his former clients.

Bertoli et al. on Border Apprehensions and Sentencing of Hispanic Citizens

Simone Bertoli, Morgane Laouénan & Jérôme Valette (Université d'Auvergne - Clermont 1 - Centre d'Etudes et de Recherches sur le Developpement International (CERDI), Catholic University of Louvain (UCL) and Université Paris I Panthéon-Sorbonne - Centre d'Economie de la Sorbonne (CES)) have posted Border Apprehensions and Federal Sentencing of Hispanic Citizens in the United States (IZA Discussion Paper No. 15866) on SSRN. Here is the abstract:

 

We provide evidence that Hispanic citizens receive significantly longer sentences than non-Hispanic citizens in the Federal Criminal Justice System in the United States when a higher number of illegal aliens are apprehended along the southwest border. Apprehensions can increase the salience of Hispanic ethnic identity, which is associated with persistent negative stereotypes, and can also deteriorate attitudes toward Hispanics. We rule out concerns that apprehensions might be conveying legally relevant information to judges. Thus, we provide direct evidence for time-varying discrimination toward Hispanic defendants. Our estimated effect is only at play for defendants without a heavy previous criminal record.

Kammel on Trademark Anti-Counterfeiting Prosecutions

Kari Kammel (A-CAPP Center) has posted Survey & Legal Analysis of Select Global Trademark Anti-Counterfeiting Statutes & Evidence of Prosecutions (Marquette Intellectual Property Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Analysis of criminal trademark counterfeiting-related legislation and evidence of prosecutions in 24 countries and the European Union. The initial goal was to understand, describe and evaluate the effectiveness of criminal punishment for trademark counterfeiting in this comparative study, while also exploring the feasibility of further studies of global governmental criminalization and prosecution of trademark counterfeiting.

"A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury"

Stephen Gillers has this post at ScotusBlog. In part:

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.

Perlin et al. on State Courts and Panetti v Quarterman

Michael L. Perlin, Talia Roitberg Harmon, and Maren Geiger (New York Law School, Niagara University and Niagara University, Department of Criminal Justice) have posted 'The Timeless Explosion of Fantasy's Dream': How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman pm SSRN. Here is the abstract:

 

Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, 551 U.S. 930 (2007), sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.” Id. at 968. However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, see Michael L. Perlin & Talia R. Harmon, “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman (with Prof. Talia Harmon,) 60 U. LOUISVILLE L. REV. 557 (2022), and two of the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context, see Michael L. Perlin, Talia R. Harmon & Haleigh Kubiniec, “The World of Illusion Is at My Door”: Why Panetti v. Quarterman is a Legal Mirage, 59 CRIM. L. BULL. -- (2023) (in press). The issues of believability of experts, allegations of malingering, and “synthetic competency” dominated these decisions.

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Christakis & Lodie on Facial Recognition in France

Theodore Christakis and Alexandre Lodie (University Grenoble-Alpes, CESICE, France. Senior Fellow Cross Border Data Forum & Future of Privacy Forum and MIAI - AI Regulation Chair) have posted The French Supreme Administrative Court Finds the Use of Facial Recognition by Law Enforcement Agencies to Support Criminal Investigations 'Strictly Necessary' and Proportional (European Review of Digital Administration & Law (ERDAL), Forthcoming) on SSRN. Here is the abstract:

 

In this case the French NGO “La Quadrature du Net” (LQDN) asked the French Supreme Administrative Court ("Conseil d'Etat) to invalidate article R 40-26 of the code of criminal procedure which expressly provides for the use of facial recognition to aid in the identification of suspects during criminal investigations. LQDN considered that the use of this technology was not “absolutely necessary” as required by the French version of Article 10 of the Law Enforcement Directive (LED).

The Court dismissed this claim. The Conseil d’Etat claims that using facial recognition in such a way is 'absolutely necessary' when the amount of data available to the police is taken into account, and that it is proportionate to the aim pursued.

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Efrat on Transnational Litigation

Asif Efrat (Reichman University, Israel) has published Intolerant Justice: Conflict and Cooperation on Transnational Litigation (Oxford University Press, 2023). Here is a summary:

In a globalized world, national legal systems often face dilemmas of international cooperation: Should our citizens stand trial in foreign courts that do not meet our standards? Should we extradite offenders to countries with a poor human rights record? Should we enforce rulings issued by foreign judges whose values are different from our own? Intolerant Justice argues that ethnocentrism—the human tendency to divide the world into superior in-groups and inferior out-groups—fuels fear and mistrust of foreign justice and sparks domestic political controversies. Skeptics portray foreign legal systems as a danger and a threat to local values and interests. Others, however, seek to dispel these concerns, arguing that legal differences among countries should be respected. Such disagreements often make it harder to establish cooperation on litigation.

The book traces this dynamic in a range of fascinating cases, including the American hesitation to allow criminal trials of troops in the courts of NATO countries; the dilemma of extradition to China; the European wariness toward U.S. civil judgments; and the controversy over the prosecution of foreign terrorist fighters for ISIS. Despite the growing role of law and courts in international politics, Intolerant Justice suggests that cooperation among legal systems often meets resistance, but it also shows how this resistance can be overcome. These insights will speak to anyone who seeks to strengthen the rule of law and international collaboration in an era of increasing nationalism.

Slobogin on Predictive Policing

Christopher Slobogin (Vanderbilt University - Law School) has posted Predictive Policing in the United States on SSRN. Here is the abstract:

 

This chapter, published in the book The Algorithmic Transformation of the Criminal Justice system (Castro-Toledo ed., Thomson Reuters, 2022) describes police use of algorithms to identify “hot spots” and “hot people,” and then discusses how this practice should be regulated. Predictive policing algorithms should have to demonstrate a “hit rate” that justifies both the intrusion necessary to acquire the information necessary to implement the algorithm and the action (e.g., surveillance, stop or arrest) that police seek to carry out based on the algorithm’s results. Further, for legality reasons, even a sufficient hit rate should not authorize action unless police have also observed risky conduct by the person the algorithm targets. Finally, the chapter discusses ways of dealing with the possible impact of racialized policing on the data fed into these algorithms.

Markovic on Prosecutorial Ethics and Family Separation

Milan Markovic (Texas A&M University School of Law) has posted The Legal Ethics of Family Separation (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

 

On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.

Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutors’ charging decisions may have the effect of separating families, the question of prosecutors’ ethical responsibilities in these situations continues to be of paramount importance.

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Martinez on Public Reporting of Monitorship Outcomes

Veronica Root Martinez (Duke University School of Law) has posted Public Reporting of Monitorship Outcomes (Harvard Law Review, Vol. 136, p. 757, 2023) on SSRN. Here is the abstract:

 

When a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party — a monitor — to oversee the firm’s remediation effort. The largest firms in the world — from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines — have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As corporate monitorships have evolved over the past fifteen to twenty years, however, the transparency norm has receded, even when the success or failure of the underlying remediation effort invokes issues of public concern.

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"We Need To Get Junk Science Out of Courtrooms"

From Current Affairs, via NACDL's news update:

M. Chris Fabricant is the strategic litigation director for the Innocence Project, as well as the author of the book Junk Science and the American Criminal Justice System. For years, Fabricant has exposed the weakness and lack of rigor in many mainstream forensic science practices that are used to convict people of crimes. From bite mark analysis to ballistics to hair and fiber evidence to blood spatter analysis, much forensic science admitted in courts of law across the country hasn’t been held to a particularly high standard of rigor, and innocent people have been sent to prison (and even possibly executed) as a result. Fabricant’s book profiles individuals who have been convicted of horrific crimes on the basis of false conclusions by forensic “experts.” He shows how worryingly few safeguards there are for making sure that if you’re accused of a crime, the proof that you did it is actually scientifically valid. 

Lindvall on The Jury's Role in Excessive-Force Cases

Alexander Lindvall has posted The Jury's Role in Excessive-Force Cases (Kansas Law Review, Vol. 71, No. 1, 2022) on SSRN. Here is the abstract:

There is a problem with § 1983 excessive-force litigation: courts are routinely allowing juries to decided issues of constitutional law. The Ninth Circuit’s model jury instructions, for example, ask jurors to determine whether an officer had probable cause, whether a person was searched or seized within the meaning of the Fourth Amendment, whether an exception to the warrant requirement applies, and whether an officer’s actions were “unreasonable” or “excessive” within the meaning of the Fourth Amendment. This trend appears to be widespread among the federal courts.

Other than violating the well-established “juries decide facts, judges decide law” principle, this trend is troublesome for several reasons. It invites inconsistent and unpredictable results. It undermines the qualified immunity doctrine. It leaves the police without knowable, ex ante rules to follow. It is remarkably inefficient. And it unnecessarily complicates procedural issues at the trial level and on appeal. This article argues that judges, not juries, should be deciding all issues of constitutional law in § 1983 excessive-force cases.

Johnson et al. on Concealed Carry Permits and Gun-Related Injuries

David Blake Johnson, Alexi Thompson, and Brandon C. Vick (University of Central Missouri - Economics & Finance, Indiana University of Pennsylvania and Indiana University of Pennsylvania) have posted Armed and Dangerous? The Effect of Concealed Carry Permitting on Gun-Related Injuries on SSRN. Here is the abstract:

 

We explore the effect of changes in the number of concealed pistol permits issued on the number of gun-related hospitalizations in Pennsylvania. With hospital admissions data and license-to-carry permit data, we use a control function approach and several different instruments to analyze this effect. Our results suggest that an increase of roughly 200 permits increases gun-related hospital visits by about 4%. This effect is driven by gun accidents. Changes in the number of permits issued has no effect on the number of gun-assault hospital visits. Results are similar across all three instrument approaches. Additionally, when we exclude counties with a high number of homicides, the effect size decreases but remains statistically significant. We interpret these results as the control function approach accounting for an important omitted variable - the propensity to safely interact with a firearm - which could be influenced by factors such as training and experience, as well as the likelihood of carrying a firearm after obtaining a permit. Overall, our findings suggest that increases in the number of concealed carry permits issued increased gun injuries, particularly accidents, in Pennsylvania.

Harvey on Background Information at Sentencing

David John Harvey has posted Background Information and Section 27 Reports for Sentencing – R v Berkland in the Supreme Court on SSRN. Here is the abstract:

Background information is essential when it comes to sentencing offenders. Without such information it is rarely possible to ascertain the drivers for offending, the level of offender agency or the prospects of success of rehabilitative interventions (if any).

In the past background information in New Zealand sentencing has been acquired from reports prepared by the Department of Corrections occasionally from specialist medical or psychiatric reports and from information that is provided by Counsel.

From as far back as 1985 there has been provision in legislation for the availability of material about the background or the cultural history of an offender which may have an impact upon sentencing. These provisions were little used until the middle of the second decade of the 21st Century and were highlighted in the High Court case of Solicitor-General v Heta . Thereafter the provision of background material in the form of background or “cultural” reports has become widespread. The use of background information for serious methamphetamine sentencing was addressed in the case of Zhang v R and the issue of the connection between background material and the offending for which a defendant was being sentenced was considered by the Court of Appeal in R v Carr . Despite these considerations there appeared to be a certain disparity of treatment of background information by sentencing Courts.

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Dissent from denial of cert in civil penalty case raising excessive fines claim

Justice Gorsuch dissented from the denial of cert in Toth v. United States.

Currie on Hearsay Gathered Under MLAT

Robert J. Currie (Dalhousie University - Schulich School of Law) has posted Admissibility of Hearsay Gathered Under MLAT: A Tempest in Canada ((2022) 1:2 Transnational Criminal Law Review (forthcoming)) on SSRN. Here is the abstract:

 

One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been “form of evidence” - specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state? It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop “work-arounds” in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these cases and suggests some lessons they contain for broader practice.