CrimProf Blog

Hashimoto on Class

Erica J. Hashimoto  (University of Georgia Law School) has posted Class Matters on SSRN. Here is the abstract:

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

Smith on Strickland Claims

Stephen F. Smith  (Notre Dame Law School) has posted Taking Strickland Claims Seriously on SSRN. Here is the abstract:

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or on first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 668 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line of recent Supreme Court cases that have breathed new life into Strickland as a meaningful guarantee of effective defense representation. These cases - all of which involved sentences of death - pointedly reject the understanding of Strickland that made it exceedingly difficult to prevail on ineffective-assistance claims. Although the new line of Strickland cases were undoubtedly motivated by concerns about the proper administration of the death penalty, the more rigorous understanding of Strickland should not be limited to capital cases. Whether or not the death penalty is at stake, appellate courts should be vigilant in policing the effectiveness of defense attorneys so that the determinative factor in criminal proceedings will be the strength of the government’s case on the merits, not the weakness of the defense put forth by the lawyers for the defendants.

Austin on Victim Impact Videos

Regina Austin  (University of Pennsylvania Law School) has posted Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos? (Cardozo Law Review, Vol. 31, p. 979, 2010)  on SSRN. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies. The common reception of home photographs and moving images affects the interpretation of victim impact videos. As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence. He wound up with a judgment of life without the possibility of parole. Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment. Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder. Finally, the conclusion offers recommendations for the admission of victim impact videos.

Schedule for 2010 Law and Society Shadow Crim Prof Conference

Here's the schedule for this great looking event, organized by Dan Markel and Alice Ristoph, to be held in Chicago. A wonderful line up, and the Cubs won't yet be mathmatically eliminated:

Thursday May, 27

8:15am to 10:00am

　 　 　 　Police and the Courts: Judicial Management and Evaluation of Law Enforcement Activity 1110

　 　 　 　 　 　 　 　Building: Renaissance, Room: tba 10 Session Participants:

Chair: Richard E Myers (University of North Carolina) 

The Perennial Police Gaming Problem and the Need for Articulation-Forcing and Data-Development Rules in Constitutional Criminal Procedure *Mary D. Fan (American U/U of Washington)

GPS Tracking as Search and Seizure *Bennett L. Gershman (Pace University)

Rethinking Reasonable and Articulable Suspicion *Richard E Myers (University of North Carolina)

Judging Police Lies: An Empirical Perspective *Melanie D. Wilson (University of Kansas)

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Chandler on Neuroscientific Evidence for Lie Detection

Jennifer A. Chandler (University of Ottawa - Faculty of Law) has posted Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection (Dalhousie Law Journal, Vol. 33, 2010) on SSRN. Here is the abstract:

How will the courts react to the emerging technology of detecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highly reliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the “mystique of science” and that the justice system would be “dehumanized.” The legal justifications for rejecting polygraph evidence are explored in order to illustrate that the judicial resistance to lie detection technologies, including neuro-imaging, can be expected to follow a similar pattern.

The key determinant of whether courts are likely to accept neuroscientific evidence for the purpose of lie detection is the degree to which this evidence is considered to be reliable. Competing concerns about the “dehumanization” of the justice system, or the customary judicial attachment to protecting credibility determination as a purely human function, are unlikely to be able to overcome the pressure to adopt reliable neuroscientific technologies for lie detection should such technologies develop. This is because technologies that are widely accepted as reliable cannot be permitted to remain outside the justice system to deliver their own verdicts incompatible with those of the courts. The continued legitimacy of the justice system cannot tolerate this. The rules of evidence and, in particular, the constitutional right to make full answer and defense are the legal mechanisms by which this accommodation would take place.

Wolitz on Innocence Commissions and Post-Conviction Review

David Wolitz (Georgetown University Law Center) has posted Innocence Commissions and the Future of Post-Conviction Review (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:

In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.

Berman on Two Kinds of Retributivism

Mitchell N. Berman  (University of Texas School of Law) has posted Two Kinds of Retributivism on SSRN. Here is the abstract:

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

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Jones & Kurzban on Intuitions of Punishment

Owen D. Jones (pictured) and Robert Kurzban (Vanderbilt University - School of Law & Department of Biological Sciences and University of Pennsylvania - Department of Psychology) have posted Intuitions of Punishment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.

"Secrecy Shrouds NYPD's Anti-Terror Camera System"

City Limits has the story:

The New York Police Department is spending $160 million in city and federal funding on a massive surveillance network of video cameras and license plate readers for Lower and Midtown Manhattan. Despite the investment of public funds, NYPD refuses to reveal much of what it will purchase under the plan, how the costs are being shared, how data will be stored or used—or even what broad Homeland Security priorities the high-tech system is supposed to support.

Braman, Kahan & Hoffman on Punishment Naturalism

Donald Braman (George Washington University - Law School; pictured), Dan M. Kahan (Yale University - Law School) and David A. Hoffman (Temple University - James E. Beasley School of Law) have posted A Core of Agreement (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract:

In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, we reiterate our claim that RKJ’s finding of such a “core” - while of considerable academic interest - does not have any normative or prescriptive upshot for debates about issues at the core of political contention and law-reform efforts in criminal justice - including important ones over the definitions of rape, homicide, domestic violence, and fraud.

Top-Ten Recent SSRN Downloads

are here.The usual disclaimers apply.

Rank	Downloads	Paper Title
1	302	The Case Against the Goldstone Report: A Study in Evidentiary Bias Alan Dershowitz, Harvard Law School, Date posted to database: January 27, 2010 [2nd last week]
2	297	Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois, Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology, Date posted to database: March 4, 2010 [3rd last week]
3	270	The Shadow of State Secrets Laura Donohue, Georgetown University Law Center, Date posted to database: March 8, 2010 [4th last week]
4	233	'The Look in His Eyes': The Story of State v. Rusk and Rape Reform Jeannie Suk, Harvard University - Harvard Law School, Date posted to database: February 3, 2010 [5th last week]
5	215	We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging Kenworthey Bilz, Northwestern University - School of Law, Date posted to database: February 5, 2010 [6th last week]
6	176	Twenty-Five Years of Social Science in Law John Monahan, Laurens Walker, University of Virginia School of Law, University of Virginia School of Law, Date posted to database: February 26, 2010 [9th last week]
7	171	Taxing Punitive Damages Gregg D. Polsky, Dan Markel, Florida State University - College of Law, Florida State University College of Law, Date posted to database: June 19, 2009 [8th last week]
8	160	Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint William W. Berry, University of Mississippi School of Law, Date posted to database: March 3, 2010 [10th last week]
9	156	The Undiscovered Country: Execution Competency & Comprehending Death Jeffrey L. Kirchmeier, CUNY School of Law, Date posted to database: February 5, 2010 [new to top ten]
10	154	Recognizing Constitutional Rights at Sentencing F. Andrew Hessick, Carissa Byrne Hessick, Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law, Date posted to database: March 3, 2010 [new to top ten]

"Arizona governor signs controversial illegal immigration bill"

Jurist has the story about the bill, which "would require any individual suspected of being an illegal immigrant to present valid identification to law enforcement officials. The bill gives police officers permission to determine the immigration status of any individual who arouses reasonable suspicion, criminalizes the hiring of illegal immigrants for day labor, and allows citizens to sue the local government if they believe the policy is not being used properly."

"Indictment for Chat Room Posts Urging Particular People to Commit Suicide"

Eugene Volokh links to the story at The Volokh Conspiracy.

Robinson, Kurzban & Jones on Realism, Punishment, and Reform

Paul H. Robinson (University of Pennsylvania Law School), Robert Kurzban (University of Pennsylvania - Department of Psychology) and Owen D. Jones (Vanderbilt University - School of Law & Department of Biological Sciences) have posted  Realism, Punishment & Reform on SSRN. Here is the abstract:

Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue.

As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their attack is therefore misplaced, important disagreements may remain concerning: whether there is a meaningful difference between core and non-core cases; whether judgments about core cases are less malleable than judgments about non-core cases; and whether imposing punishments perceived to be unjust imposes, in turn, significant costs on the criminal justice system. Which of the disputed views is correct can have important implications for the administration of criminal justice. Far from being anti-reformists, as accused, we argue that Reform Realism is the most effective path to bringing about needed reforms.

Vladek on Abu Ali Litigation

Stephen I. Vladeck (American University - Washington College of Law) has posted Terrorism Trials and the Article III Courts after Abu Ali (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian - rather than military - jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule - what we might characterize as either a “distortion effect” or a “seepage problem.”

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Bellin and Semitsu on the Need to Alter Batson Framework

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) and Junichi P. Semitsu (University of San Diego School of Law) have posted Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney on SSRN. Here is the abstract:

Recently, in Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge – the unbounded collection of justifications that courts, including the Supreme Court, accept as “race-neutral.” 

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000-2009) that reviewed state or federal trial court rejections of a Batson challenge. In light of this study, and studies that have come before, we conclude that Batson continues to be easily avoided through the articulation of a purportedly race-neutral explanation for juror strikes. As a result, there is no reason to believe that Batson is, as the Court suggests, achieving its goal of eliminating race-based jury exclusion, and little hope that it will ever do so. In light of our conclusion, this Article proposes an alteration to the Batson framework that we believe would enable trial courts to reduce the role of race in the jury selection process.

Sekhon on Consent

Nirej Sekhon (Georgia State University College of Law) has posted  Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 46, 2011) on SSRN. Here is the abstract:

“Consent” is ubiquitous in our criminal justice system. Its centrality highlights the ironic disjuncture between constitutional principle and the day-to-day practice of criminal justice. The Constitution imposes strict restrictions on the State’s ability to investigate and prosecute crimes – the warrant requirement and right to jury trial are examples. But, our criminal justice system depends on individuals “consensually” relinquishing those very protections every day. The Supreme Court has encouraged this dependence by deeming an individual’s consent valid even when the State pressures her to give it. The police regularly rely on individuals consenting to searches when there is no probable cause. Suspects routinely confess to crimes when it is not in their interests to do so. And defendants routinely plead to charges that would not yield conviction following trial. This article uses political theory to account for consent’s centrality in our criminal justice system and to challenge the Court’s broad interpretation of the concept in the search, confession, and plea contexts. The Court has inappropriately relied on a kind of “fictional consent” in criminal procedure. This not only produces unfair results in individual cases, it threatens the democratic legitimacy of our criminal justice system. Bringing constitutional principle and criminal justice practice into greater harmony will require more stringent rules of consent than we currently have. The article advances a framework for reform.

Markel and Flanders on Subjective Experience of Punishment

 Dan Markel (Florida State University College of Law) and Chad Flanders (Saint Louis University - School of Law) have posted Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice on SSRN. Here is the abstract:

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

Argument transcript in Dolan v. US

is here.

Fontecchio on Suspicionless Laptop Searches at the Border

Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract: 

The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any "routine" search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something "special" about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States' physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government's interest in performing suspicionless data searches at the border does not outweigh an individual's interest in privacy. On balance, an individual's privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment.