CrimProf Blog

Husak on Retributivism and Overpunishment

Douglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted Retributivism and Overpunishment on SSRN. Here is the abstract:

 

I argue that a retributive penal philosophy should not be blamed for contributing to our present epidemic of mass incarceration and tendency to over-punish. My paper has three parts. In the first, I make a number of conceptual points about the nature of retributivism that reveal it to have the resources to combat our current crisis. In the second part, I construct desert-based arguments for decriminalizing some offenses that have led too many persons to be punished. In the third part, I suggest that desert favors an expansion in the scope and number of defenses that have the potential to retard the severity of punishment. If my arguments are sound, retributivism should be regarded as part of the solution to our predicament rather than its cause.

Wilson on The Pandemic Juror

Melanie D. Wilson (University of Tennessee College of Law) has posted The Pandemic Juror on SSRN. Here is the abstract:

 

While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” There is no justice without jurors.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.

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Knight & Tribin on Immigration and Violent Crime

Brian G. Knight and Ana Tribin (Brown University - Department of Economics and Central Bank of Columbia) have posted Immigration and Violent Crime: Evidence from the Colombia-Venezuela Border on SSRN. Here is the abstract:

 

This paper investigates the link between violent crime and immigration using data from Colombian municipalities during the recent episode of immigration from Venezuela. The key finding is that, following the closing and then re-opening of the border in 2016, which precipitated a massive immigration wave, homicides in Colombia increased in areas close to the border with Venezuela. Using information on the nationality of the victim, we find that this increase was driven by homicides involving Venezuelan victims, with no evidence of a statistically significant increase in homicides in which Colombians were victimized. Thus, in contrast to xenophobic fears that migrants might victimize natives, it was migrants, rather than natives, who faced risks associated with immigration. Using arrests data, there is no corresponding increase in arrests for homicides in these areas. Taken together, these results suggest that the increase in homicides close to the border documented here are driven by crimes against migrants and have occurred without a corresponding increase in arrests, suggesting that some of these crimes have gone unsolved.

White & Reynolds on Due Process in a Fee-Driven State

Penny White and Glenn Harlan Reynolds (University of Tennessee College of Law and University of Tennessee College of Law) have posted Due Process in a Fee-Driven State on SSRN. Here is the abstract:

 

Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves." we argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system – and, indeed, the entire law enforcement apparatus – depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system. We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.

Arbel on Indigenous Mass Imprisonment

Efrat Arbel (University of British Columbia (UBC), Faculty of Law) has posted Rethinking the 'Crisis' of Indigenous Mass Imprisonment (Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2019, Volume 34, no. 3, pp. 437–456) on SSRN. Here is the abstract:

 

In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a “crisis.” Since Gladue’s release, the language of “crisis” has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal under- standing of Indigenous mass imprisonment. My focus is not on speci c iterations or uses, but on the cumulative impact of the language of “crisis” over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless intensification of Indigenous mass imprisonment, the language of “crisis” has operated to subtly entrench the colonial structures it purports to disrupt. Urging a shift away from its use, I argue that the language of “crisis” is not only ill suited to address the problem, but is part of the problem.

Fields on Self-Defense and the Black Transgender Community

Shawn Fields (Campbell University - Norman Adrian Wiggins School of Law) has posted The Elusiveness of Self-Defense for the Black Transgender Community (Nevada Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

This Essay was written as a part of the Nevada Law Journal's symposium on Race and Gender and Policing. It explores the need for but elusiveness of self-defense as a viable affirmative defense for Black transgender victims of crime. The Black transgender community suffers disproportionate rates of intimate partner violence, discriminatory harassment, and sexual violence from both strangers and acquaintances. Yet members of this community also report disproportionate rates of ambivalence, discriminatory treatment, and physical violence from law enforcement investigating these crimes. Black transgender individuals experience under-policing driven by stereotyped attitudes that transgender individuals are inherently "deceitful" or that transgender women are "actually men" and can handle themselves. And they experience over-policing for "walking while trans," a widely reported phenomenon wherein transgender individuals walking in public are repeatedly targeted for suspected prostitution. Within this reality of violence and under protection, many members of the Black transgender community report resorting to self-defense tactics to protect themselves, including carrying firearms in public.

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Yeargain on Fake Polls

Tyler Yeargain (Yale Center for Environmental Law and Policy) has posted Fake Polls, Real Consequences: The Rise Of Fake Polls and the Case For Criminal Liability (Missouri Law Review, Vol. 85, No. 1, 2020) on SSRN. Here is the abstract:

 

For better or for worse, election polls drive the vast majority of political journalism and analysis. Polls are frequently taken at face value and reported breathlessly, especially when they show surprising or unexpected results. Though most pollsters adhere to sound methodological practices, the dependence of political journalism – and campaigns, independent political organizations, and so on – on polls opens a door for the unsavory. Fake polls have started to proliferate online. Their goal is to influence online political betting markets, so that their purveyors can make a quick buck at the expense of those they’ve tricked.

This Article argues that these actions – the creation and promulgation of fake polls to influence betting markets – is a classic case of either commodities fraud, or wire fraud, or both, or conspiracy to commit either. It argues that publishing fake polls, even for the relatively esoteric purpose of influencing political prediction markets, could have adverse societal consequences if left unpunished. Accordingly, it makes the case for criminal liability and provides federal prosecutors with a roadmap of how to see it through.

Cloutier on Decriminalizing Payment of Gamete Donors and Surrogates in Canada

Anne-Isabelle Cloutier (McGill University Faculty of law) has posted Decriminalizing Payment of Gamete Donors and Surrogates in Canada: An Analysis of Factors Influencing the Public Debate in Light of Bill C-404 (Health Reform Observer - Observatoire des Réformes de Santé 7 (3): Article 1) on SSRN. Here is the abstract:

 

On 29 May 2018, the Liberal MP Anthony Housefather tabled Bill C-404 titled An Act to amend the Assisted Human Reproduction Act which seeks to decriminalize the payment of gamete donors and surrogates across Canada. Although Prime Minister Justin Trudeau indicated the importance of having a societal debate on the subject, the bill was read only once by the House of Commons before it died on the Order Paper. Bill C404 aimed to increase the number of Canadian gamete donors and surrogates to fulfill Canada’s domestic needs, which are purportedly not being met because of a lack of economic incentives on the supply side and the existence of a grey market that deters some Canadians in acting as donors or surrogates and causes intending parents to fear being criminally sanctioned if the reimbursement they pay is deemed unrelated or unreasonable. While Bill C-404 has not been adopted by Parliament, this paper seeks to analyze the policy tensions at the heart of the decriminalization of payment of donors and surrogates — tensions that may well resurface in the future. As long as the alleged shortage of donors and surrogates persists, stakeholders are likely to continue to advocate for legislative change.

Conti-Cook on Digital Devices and Abortion Prosecutions

Cynthia Conti-Cook has posted Surveying the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America (University of Baltimore Law Review, Forthcoming) on SSRN. Here is the abstract:

Pregnant people are subjected daily to scrutiny of their decisions regarding where they go, what they do, what they ingest, and how they regard their pregnancy, by co-workers, bosses, relatives, doctors and politicians. For decades, prosecutors have also weighed in; overreaching by interpreting existing laws to prosecute pregnant people for assault, child abuse, drug-related offenses, and other crimes.

Prosecutions of pregnant people for decisions they make during pregnancy, including termination, are likely to increase in the future, as will prosecutions of providers. Recent anti-abortion bills passed at the state level go beyond restricting access, long under attack since Roe v. Wade, to overtly criminalize abortion providers, pregnant people and those that assist them. This new zealousness for legislation that criminalizes abortion indicates that anti-choice advocates now see the Roe decision as vulnerable since Justice Kennedy’s retirement resulted in a new conservative majority on the Supreme Court. If Roe is overturned, and states again criminalize abortion, investigations and prosecutions will also increase.

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Mao on Authoritarian Environmentalism

KuoRay Mao (Colorado State University) has posted Authoritarian Environmentalism and Environmental Regulation Enforcement: A Case Study of Medical Waste Crime in Northwestern China (Routledge International Handbook of Green Criminology. (2020). 2nd edition United Kingdom: Routledge) on SSRN. Here is the abstract:

 

This chapter utilizes a green criminological perspective to examine this key issue as it pertains to waste dumping in rural northwestern China. First, we offer a brief review of green criminology’s approach to waste crime and summarize the literature on top-down environmental regulation enforcement in China. Next, we describe the development of the medical waste regulation framework and highlight the current obstacles to enforcement in China. The chapter then utilizes a case study to illustrate how institutional incentives in the job performance evaluation system of bureaucrats shaped the under-enforcement of medical waste regulations at the grassroots level of rural governance. Our chapter concludes with a discussion of how the study expands our understanding of waste crime and environmental regulation enforcement in an illiberal context.

Lynch on Children and Serious Crime

Nessa Lynch (Victoria University of Wellington - Faculty of Law) has posted Protective Measures for Children Accused or Convicted of Serious Crimes (in W O'Brien and C Foussard (eds) Violence Against Children in the Criminal Justice System: Global Perspectives on Prevention (Routledge, 2019) 56) on SSRN. Here is the abstract:

 

Most offences committed by children are minor to moderate in seriousness, and it is largely accepted that the response should be primarily tolerant and reintegrative. Children who commit serious offences pose conceptual challenges for norms of youth justice and are an understudied group of children both in the scholarly literature and international human rights guidance. Such children are likely to have complex and multiple needs and risk factors, and measures must also be cognisant of public safety and the interests of potential future victims. This chapter considers the profiles of children who are accused or convicted of serious crimes and considers what protective measures might minimise harm to such children. Specific case studies, generally from New Zealand, but of wider application, are employed to consider appropriate protective measures for these children.

Lynch & Liefaard on Children and Criminal Law

Nessa Lynch and Ton Liefaard (Victoria University of Wellington - Faculty of Law and Leiden University - Leiden Law School) have posted What is Left in the 'Too Hard Basket'? Developments and Challenges for the Rights of Children in Conflict with the Law ((2020) 28 International Journal of Children's Rights 89) on SSRN. Here is the abstract:

 

The 30 years since the enactment of the United Nations Convention on the Rights of the Child has seen extensive developments in the theory and practice of children’s rights. Children’s rights are now an established academic discipline with the study of children in conflict with the law being a fundamental area of analysis. This paper takes the approach of highlighting three areas of development of children’s rights scholarship in relation to the criminal justice system: children’s rights, developmental science and notable themes emerging from cross-national scholarship, including age limits, diversion, effective participation and deprivation of liberty. In addition, it analyses three gaps or challenges which are “left in the too-hard basket” for the coming decades.

Yung, Criminal Law (2nd ed.)

Corey Rayburn Yung (University of Kansas School of Law) has posted Criminal Law: Second Edition on SSRN. Here is the abstract:

 

This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.

Bloch on Virtual Reality and Restorative Justice

Kate Bloch (University of California Hastings College of the Law) has posted Virtual Reality: Prospective Catalyst for Restorative Justice on SSRN. Here is the abstract:

 

A 2018 U.S. Department of Justice report assessing data from 30 states found that 83% of individuals released from state prisons in 2005 were rearrested within nine years.* When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention. In countries around the world, restorative justice has been emerging as a promising candidate. It generally involves an interactive process in which stakeholders identify and grapple with harms caused by the crime. But many environments lack the resources to invoke its benefits. While restorative justice takes various forms, the crux of each variant involves perspective taking — seeing the harm and its consequences through the eyes of those who experienced it. Cognitive science research suggests that the emerging technology of virtual reality provides an innovative and often especially compelling approach to perspective taking. Embodying an avatar offers the opportunity to experience the world as another and could make virtual perspective-taking encounters a valuable introduction for subsequent in-person encounters or offer a perspective-taking opportunity when in-person encounters are not practical or prudent. This analysis explores how virtual reality could become a catalyst for restorative justice.

Steele on An Investigative Omission Defense

Lisa Steele has posted Investigating and Presenting an Investigative Omission Defense (Criminal Law Bulletin, Vol. 57, Forthcoming) on SSRN. Here is the abstract:

This paper explores defense challenges to the adequacy of police investigations, and investigative lapses as a cause for reasonable doubt. It focuses on case law from Massachusetts, which has four decades of state appellate case law about investigative omission evidence and jury instructions. It talks about the constitutional nature of the defense, how it differs from third-party culprit defenses, and evidence issues that may arise.

The paper also discusses cognitive biases that can affect even well-trained, experienced police investigators and/or prosecutors. Tunnel vision, confirmation bias, and other mental shortcuts can lead to investigative lapses when evidence that the defendant is not the culprit is mentally ignored or downplayed.

Snyder et al. on Competency to Stand Trial

Matthew Snyder, Henry Fradella, Michael Shafter and José B. Ashford (Arizona State University (ASU), Arizona State University - School of Criminology and Criminal Justice, Arizona State University (ASU) and Arizona State University (ASU)) have posted A Study of Criminal Defendants Adjudicated Non-Restorable to Competency to Stand Trial ((2020) Criminal Law Practitioner, 5(2), 6–53) on SSRN. Here is the abstract:

 

This study examines the demographic, clinical, and criminal characteristics of ninety-nine felony defendants in a primarily rural county in Arizona who were referred for clinical evaluation for competency to stand trial. Ninety-two of these people had their competency status adjudicated during the time period relevant to the study, sixty of whom were ultimately restored to competency and thirty-two of whom were determined to be non-restorable to competency. Of those in the latter group, most had serious mental illnesses or intellectual disabilities. Additionally, nineteen (59.4%) of the non-restorable defendants were referred for civil commitment proceedings, all but seven of whom were ultimately ordered into involuntary treatment. Only three (3) of the ninety-nine defendants in the study re-offended and were referred back into a restoration of competency program during a five-year period.

Bayli on Character Evidence

Hillel Bavli (Southern Methodist University - Dedman School of Law) has posted An Aggregation Theory of Character Evidence on SSRN. Here is the abstract:

 

A central principle of U.S. law is that individuals should be judged in court based on their actions and not on their character. Federal Rule of Evidence 404 therefore prohibits evidence of an individual’s previous actions to prove that the individual acted in accordance with a certain propensity or character. But courts frequently depart from or altogether ignore this rule, resulting in arbitrary judgments based on an individual’s character or prior acts rather than on evidence regarding the events at issue in a case. This raises serious constitutional and fairness concerns, deepens racial and economic inequality in the criminal justice system, and entails a wide range of other harmful effects.

I address this problem from a new angle — a scientific one. I develop a theory of “aggregation evidence” based on principles of estimation and data aggregation in statistics.

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Woodwark & Lynch on Young Adults in the Criminal Justice System

Stephen Woodwark and Nessa Lynch (affiliation not provided to SSRN and Victoria University of Wellington - Faculty of Law) have posted 'Decidedly but Differently Accountable'? – Young Adults in the Criminal Justice System (Stephen Woodwark and Nessa Lynch “'Decidedly but Differently Accountable'? – Young Adults in the Criminal Justice System" NZ L Rev, Forthcoming) on SSRN. Here is the abstract:

 

Young adults are increasingly recognized as a distinct group, both in society and in the context of the criminal justice system. This article explores the evidence which highlights the distinct characteristics of young adults, and the principle supporting differential treatment of this age cohort. Consideration is given to the existing provisions that cater for young adults, including the newly established Young Adult List Court. Particular focus is given to assessing the efficacy of discounts provided for age under the Sentencing Act 2002. Two potential conceptual models for reform are canvassed. Processes and responses available under the current youth justice system may be extended where appropriate; such an approach has been adopted by several overseas jurisdictions. Alternatively, a distinct ‘third system’ may be established with procedures and outcomes developed specifically for young adults.

Coleman on Police Body Cameras

Ronald J. Coleman (Georgetown University Law Center) has posted Police Body Cameras: Go Big or Go Home? (Buffalo Law Review, Vol. 68, Forthcoming) on SSRN. Here is the abstract:

 

Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical questions regarding resources and benefits remain insufficiently answered. This Article seeks to help fill that gap by analyzing a large, recently released data set. The Article’s primary finding is that a more fulsome commitment to the body camera program — or what this Article refers to as “going big” — is associated with more favorable perceptions of the resources required for, and benefits of, body cameras.

Richards on Intoxication and Capacity to Consent

Cassandra Richards (McGill University - Faculty of Law) has posted Intoxication, a Drunk Science: Expertise in Cases of Sexual Assault regarding Capacity to Consent (Canadian Journal of Law and Justice, Vol. 2, No. 1, 2020) on SSRN. Here is the abstract:

 

This paper analyzes the use of expert and forensic evidence in cases of sexual assault when the complainant alleges incapacity to consent due to intoxication. Based on a review of recent jurisprudence, the following argues that despite its rampant use in sexual assault trials, expert testimony and forensic evidence are frequently unable to provide precise conclusions about a complainant’s level of intoxication and consequently capacity to consent. While trial judges continue to call on counsel to bring forth these types of evidence, they are rarely assigned probative value. Nonetheless, inconclusive expert evidence and testimony is still relied upon to advance theories which undermine the complainant’s narrative and uphold damaging stereotypes about sexually assaulted intoxicated women. While these types of evidence can contribute to the truth-seeking process, this paper calls on the legal community to critically evaluate how these scientific tools are being utilized. What voices and narratives are being amplified by expertise? Furthermore, it asks whether expertise is actually relevant and informative to the central issues alleged in cases of capacity to consent. Are expert testimony and forensic evidence truly allowing the trier of fact to get at the truth?