CrimProf Blog

Wexler on Therapeutic Jurisprudence

David B. Wexler  (University of Arizona - James E. Rogers College of Law) has posted Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development on SSRN. Here is the abstract:

This essay, based on the 3rd Annual Martin Tansey Memorial Lecture, delivered May 26, 2010, at the Criminal Courts of Justice in Dublin, and sponsored by the Association of Criminal Justice Research and Development, introduces the perspective of therapeutic jurisprudence (TJ) and applies the perspective to several criminal justice issues, such as sentencing, probation, and parole. It calls for an academic-practitioner interdisciplinary and international partnership to enable the field to grow and flourish.

Chmura et al on an Experimental Measure of Selfishness as a Criminological Tool

Thorsten Chmura , Christoph Engel , Markus Englerth and Thomas Pitz  (University of Bonn - Faculty of Law & Economics , Max Planck Institute for Research on Collective Goods , affiliation not provided to SSRN and University of Bonn) have posted At the Mercy of the Prisoner Next Door: Using an Experimental Measure of Selfishness as a Criminological Tool (MPI Collective Goods Preprint, No. 2010/27) on SSRN. Here is the abstract:

Do criminals maximise money? Are criminals more or less selfish than the average subject? Can prisons apply measures that reduce the degree of selfishness of their inmates? Using a tried and tested tool from experimental economics, we cast new light on these old criminological questions. In a standard dictator game, prisoners give a substantial amount, which calls for more refined versions of utility in rational choice theories of crime. Prisoners do not give less than average subjects, not even than subjects from other closely knit communities. This speaks against the idea that people commit crimes because they are excessively selfish. Finally those who receive better marks at prison school give more, as do those who improve their marks over time. This suggests that this correctional intervention also reduces selfishness.

"Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits"

Doug Berman has this interesting post at Sentencing Law and Policy on yesterday's Supreme Court decision.

Yesterday's criminal law/procedure cert grant

The Court granted review in Pepper v. United States, described by ScotusBlog as involving "whether a convicted individual’s rehabilitation after sentencing can support a lowering of the sentence under federal Guidelines."

Opinion striking down Chicago handgun ban

McDonald v. City of Chicago is here. Here is the syllabus:

Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.

Held: The judgment is reversed, and the case is remanded.

567 F. 3d 856, reversed and remanded.

JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 5–9, 11–19, 19–33.

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Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply. 

Rank	Downloads	Paper Title
1	306	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010 [2nd last week]
2	302	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010 [3rd last week]
3	236	Vigilante Justice: Prosecutor Misconduct in Capital Cases Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman, CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services, Date posted to database: April 5, 2010 [4th last week]
4	168	Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: April 5, 2010 [5th last week]
5	157	Two Kinds of Retributivism Mitchell N. Berman, University of Texas School of Law, Date posted to database: April 20, 2010 [6th last week]
6	146	The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants Adam M. Gershowitz, Laura Killinger, University of Houston Law Center, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: April 5, 2010 [7th last week]
7	116	Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice Dan Markel, Chad Flanders, Florida State University College of Law, Saint Louis University - School of Law, Date posted to database: April 14, 2010 [8th last week]
8	112	The Swan Song of Universal Jurisdiction in Spain Ignacio de la Rasilla del Moral, Watson Institute for International Studies, Brown University, Date posted to database: April 16, 2010 [9th last week]
9	110	Intuitions of Punishment Owen D. Jones, Robert Kurzban, Vanderbilt University - Law School & Department of Biological Sciences, University of Pennsylvania - Department of Psychology, Date posted to database: April 19, 2010 [10th last week]
10	103	From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? Henning Grosse Ruse-Khan, Max Planck Institute for Intellectual Property, Competition & Tax Law, Date posted to database: May 4, 2010 [new to top ten]

High-security cases in low-security courtrooms

A Jurist story headlined UN announces opening of new Kenya courtroom for piracy trials highlights the problem. Kenya had previously announced that it would no longer accept Somali pirate cases.

Bilz on Experimental Examination of the Exclusionary Rule

Kenworthey Bilz  (Northwestern University - School of Law) has posted Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule on SSRN. Here is the abstract:

Historically, the Supreme Court has offered two justifications for the Exclusionary Rule: one, it protects the integrity of the judicial system from “dirty” evidence, and two, it deters illegal searches by the police. The former justification has mostly fallen out of favor. Today, decisions turn on whether the Rule would, in fact, deter illegal searches in a given class of cases. As such, most empirical studies about the Rule have focused on whether or not the Rule leads to fewer police searches (illegal or otherwise), or to fewer criminal convictions.

This study takes a completely different approach, assessing support for the two competing justifications for the Rule. Two experiments show support for the integrity justification for the Rule, but not for the deterrence justification. Specifically, when deciding whether to exclude evidence found during a search conducted without probable cause, participants are sensitive to a police officer’s motive (clean vs. dirty), but not to alternative means of punishing those officers (civil suit, citizen-police review board). A third experiment examines the integrity rationale in more detail. Participants who were obligated to use dirty evidence at trial disproportionately selected a bottle of Purell over a pen as a thank you gift, versus participants who excluded that evidence. In other words, the Exclusionary Rule protects the courts from being metaphorically tainted.

These findings are important given that the Rule is not constitutionally-mandated. The Supreme Court has held that the Rule can be ignored to the extent that it (a) does not achieve its goals and (b) undermines the perceived legitimacy of the courts by the public. Given this, the Court needs to be right about what those goals are, and whether or not its current deterrence-based jurisprudence enhances legitimacy. These experiments suggest the possibility that reinvigorating the integrity justification would serve the ends of the Rule better than current doctrine does.

"Some blogosphere reactions to Skilling et al."

Doug Berman at Sentencing Law and Policy points to posts at Crime and Consequences and the WSJ Law Blog.  

"NACDL President Comments on Honest Services Trilogy"

Guest blogger Solomon L. Wisenberg has this post at White Collar Crime Prof Blog linking to the press release from the National Association of Criminal Defense Lawyers. From the press release:

In Skilling, on which the Court relies in its decisions in both Black v. United States and Weyhrauch v. United States, also decided today, the Court’s opinion is clear, “To preserve the statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-­McNally case law,” citing a 1987 case that overturned a previous version of the law. The Court goes on to specifically exclude from the ambit of this statute the pre-McNally conflict-of-interest cases. “In sum, our construction of §1346 ‘establish[es] a uniform national standard, define[s] honest services with clarity, reach[es] only seriously culpable conduct, and accomplish[es] Congress’s goal of ‘overruling’ McNally.’” But NACDL President Cynthia Hujar Orr explained that, “We are nonetheless disappointed that the Court has held that there remains a place in our criminal justice system for a statute on whose meaning few can agree.”

Orr did say that she is “heartened that the Court has unambiguously rejected government arguments that the ‘honest services’ fraud statute can be properly used across as broad a range of conduct as the government has sought to do in recent years.” Nonetheless, Orr expects “to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.”

Opinion elaborating on "second or successive" habeas petition

Magwood v. Patterson is here.

Opinions in honest services fraud cases

Skilling v. United States is here.

Black v. United States is here.

Wehyrauch v. United States is here.

Parsons on Local Regulations of Secondary Culprits

Jeffrey A. Parness  (Northern Illinois University - College of Law) has posted Beyond Red Light Enforcement Against the Guilty But Innocent: Local Regulations of Secondary Culprits (Willamette Law Review, Vol. 47, No. 2, 2010) on SSRN. Here is the abstract:

Automated traffic enforcement schemes, employing speed and red light cameras, are increasingly used by local governments in the United States. In some schemes, traffic violations are pursued against the owners as well as the drivers of the recorded motor vehicles. Here, the mens requirements that typically accompany criminal code violations are often lacking. A form of strict liability for secondary culprits is justified because of their ability to control the primary culprits using the vehicles and because traffic accidents will be reduced.

While likely to continue to anger many citizens, the surge of automated traffic enforcement schemes will also likely continue since significant deterrence of vehicle violations may follow and because significant additional revenue for local governments will follow. Many violations charged through automated schemes will be processed administratively, that is outside the judicial article courts, freeing trial court judges to handle the pressing business of civil and criminal cases and freeing prosecutors to focus on more serious offenses. Increasing numbers of vehicle owners will likely be punished for the driving of others whose bad acts were never aided, and may even have been expressly banned.

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"N.Y. May Mandate Taking DNA from All Criminals"

This A.P. story appeared at CBSNews.com, as noted by FourthAmendment.com.

(AP)  Gov. David Paterson has proposed roughly doubling New York's DNA database to include samples from even low-level offenders, making it the first in the nation to so broadly collect and use this evidence to solve crimes and exonerate people wrongly convicted.

New York's law would require adding about 48,000 samples a year to a laboratory system that state officials say is capable of handling the extra work, with no current backlogs.

"You think it'd be a huge explosion, but we have samples on so many people that recommit crimes already - it's the old rule of criminals don't specialize," said Sean Byrne, acting commissioner of the Division of Criminal Justice Services.

Caldwell & Allison on Multiple Counts in Business Robberies

Harry M. Caldwell (pictured) and Jennifer Allison  (Pepperdine University - School of Law and Pepperdine University School of Law Library) have posted  Counting Victims and Multiplying Counts: Business Robbery, Faux Victims, and Draconian Punishment (Idaho Law Review, Vol. 46, 2010) on SSRN. Here is the abstract:

This Article offers a 50-state survey of robbery statutes, specifically examining the charging and sentencing regimes for the robbery of a business during which multiple people, including employees and customers, are threatened. It begins by presenting a historical overview of the crime of robbery, focusing specifically on the robbery of a business. Then, the survey results are described, and specific problems related to multiplicity of punishment are discussed. Finally, a reasonable and ideal model of business robbery jurisprudence is offered - one that focuses on punishing the defendant proportionally to the severity of the crime committed, and that furthers the intention of criminal law to protect innocent people for the benefit of society.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to briefs and the opinion below:

• Walker v. Martin: Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying the rule in other cases.

Opinion on constitutionality of statute prohibiting material support of terrorist organizations

Holder v. Humanitarian Law Project is here. Here is the syllabus:

It is a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” 18 U. S. C. §2339B(a)(1).The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State, and is subject to judicial review.“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” §2339A(b)(1). Over the years, §2339B and the definition of “material support or resources” have been amended, inter alia, to clarify that a violation requires knowledge of the foreign group’s designation as a terrorist organization or its commission of terrorist acts, §2339B(a)(1); and to define the terms “training,” §2339A(b)(2), “expert advice or assistance,” §2339A(b)(3), and “personnel,” §2339B(h).

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Richardson on Arrest Efficiency and the Fourth Amendment

L. Song Richardson  (DePaul University College of Law) has posted Arrest Efficiency and the Fourth Amendment (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity when they conduct a stop and frisk. Empirical evidence consistently demonstrates that the police disproportionately stop and frisk non-Whites although stops and searches of Whites are often more successful in yielding evidence of criminal activity. While economists and criminal process scholars both suggest that arrest inefficiency is due to conscious racial bias, the science reveals that unconscious biases may also contribute to this inefficient policing. This Article argues that taking account of the science of implicit social cognition is important to the study of Fourth Amendment jurisprudence and policing. It demonstrates that the failure to recognize the effects of implicit bias has resulted in a Fourth Amendment legal regime that unintentionally exacerbates inefficient policing by strengthening the effects of implicit bias on police behavior. The Article suggests doctrinal and structural changes to ameliorate inefficient policing and more effectively protect privacy against arbitrary government intrusion.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	380	Disentangling Child Pornography from Child Sex Abuse Carissa Byrne Hessick, Arizona State, Sandra Day O'Connor College of Law, Date posted to database: March 28, 2010
2	295	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010
3	278	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010 [new to top ten]
4	231	Vigilante Justice: Prosecutor Misconduct in Capital Cases Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman, CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services, Date posted to database: April 5, 2010 [3rd last week]
5	165	Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: April 5, 2010 [6th last week]
6	156	Two Kinds of Retributivism Mitchell N. Berman, University of Texas School of Law, Date posted to database: April 20, 2010 [7th last week]
7	145	The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants Adam M. Gershowitz, Laura Killinger, University of Houston Law Center, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: April 5, 2010 [8th last week]
8	115	Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice Dan Markel, Chad Flanders, Florida State University College of Law, Saint Louis University - School of Law, Date posted to database: April 14, 2010 [new to top ten]
9	111	The Swan Song of Universal Jurisdiction in Spain Ignacio de la Rasilla del Moral, Watson Institute for International Studies, Brown University, Date posted to database: April 16, 2010 [10th last week]
10	106	Intuitions of Punishment Owen D. Jones, Robert Kurzban, Vanderbilt University - Law School & Department of Biological Sciences, University of Pennsylvania - Department of Psychology, Date posted to database: April 19, 2010 [new to top ten]

"‘Smart on Crime’ Mantra of Philadelphia Prosecutor"

The story is in the New York Times:

 PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.

. . . .

Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.