CrimProf Blog

Engel & Pluta on Prosecutorial Abuse of Vague Crimes

Christoph Engel and Alicja Katarzyna Pluta (Max Planck Institute for Research on Collective Goods and Columbia Business School - Management) has posted The People’s Hired Guns? Experimentally Testing the Inclination of Prosecutors to Abuse the Vague Definition of Crimes on SSRN. Here is the abstract:

Legal realists expect prosecutors to be selfish. If they get the defendant convicted, this helps them advance their careers. If the odds of winning on the main charge are low, prosecutors have a second option. They can exploit the ambiguity of legal doctrine and charge the defendant for vaguely defined crimes, like “conspiracy”. We model the situation as a signalling game and test it experimentally. If we have participants play the naked game, at least a minority plays the game theoretic equilibrium and use the vague rule if a signal indicates that the defendant is guilty. This becomes even slightly more frequent if a misbehaving defendant imposes harm on a third participant. By contrast if we frame the situation as a court case, almost all prosecutors take the signal at face value and knowingly run the risk of loosing in court if the signal was false. Our experimental prosecutors behave like textbook legal idealists, and follow the urge of duty.

Baradaran & McIntyre on Race and Prediction

Shima Baradaran (pictured) and Frank McIntyre (Brigham Young University - J. Reuben Clark Law School and Rutgers Business School) have posted Race and Prediction on SSRN. Here is the abstract:

Using a large and thorough dataset on felon arrests in the U.S., we find that the large racial gaps in the hold rates for pretrial release are explained by the racial gap in the probability of rearrest before trial for a violent crime. We find little evidence that the hold gap is related to enforcing drug laws. We find no evidence that black defendants are more likely to be rearrested for a violent crime, given that they commit one, thus the rearrest rate appears to be a valid tool for judges to use. We also consider, and reject, that the race results are spuriously driven by selection bias from using released inmates only to compute the probability of rearrest.

Faunce on Assisted Suicide, Juries and the Discretion to Prosecute

Thomas Alured Faunce (Australian National University) has posted Justins v. the Queen: Assisted Suicide, Juries and the Discretion to Prosecute (Journal of Law and Medicine, Vol. 18, pp. 706-715, 2011) on SSRN. Here is the abstract:

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another’s death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.

Laurin on Policing Police Technology

Jennifer E. Laurin (University of Texas School of Law) has posted Policing Police Technology: The False Hope of Fourth Amendment Adjudicatory Oversight on SSRN. Here is the abstract:

In the context of a SEALS Discussion Group concerning technology and the Fourth Amendment, this short essay explores why even the most elegantly drawn decision rules for applying the Fourth Amendment in today’s technological age will be rendered moot by a pervasively diminished remedial regime reflected in the Court’s recent Fourth Amendment jurisprudence – in particular the exclusionary rule decisions in Herring v. United States, Davis v. United States, and a series of constitutional tort decisions deepening the protection of qualified immunity and narrowing the scope of municipal liability. It concludes that efforts at refashioning the substance of Fourth Amendment doctrine will ultimately bear little fruit in the functional project of constitutional adjudication – though they may be essential to important task of building a popular and political culture of valuing the Fourth Amendment.

Baude on Actual Innocence

William Baude (Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP) has posted Last Chance on Death Row (Wilson Quarterly, 2010) on SSRN. Here is the abstract:

How can it be an open question whether it is constitutional to execute the innocent? But the issue of "actual innocence" is more complex than our intuition suggests.

Taslitz on Collateral Consequences

Andrew E. Taslitz (Howard University - School of Law) has posted Destroying the Village to Save It: The Warfare Analogy (or Dis-Analogy?) and the Moral Imperative to Address Collateral Consequences (Howard Law Journal, Vol. 54, p. 501, 2011) on SSRN. Here is the abstract:

This paper is the introduction to a Howard Law Journal symposium on collateral consequences. To set the stage for the symposium, the paper examines the strengths and weaknesses of the analogy drawn between "collateral damage" in armed warfare and "collateral consequences" in the war on crime. The paper argues that these similarities and differences - which turn on concepts of certainty, particularity, and reciprocity of the harm - highlight the moral need to reform the law's treatment of collateral consequences. The paper concludes by summarizing the symposium articles and placing them into a framework that supports and illustrates the paper's main conclusions.

Fan on Subconscious Racial Impact on Police

Mary Fan (University of Washington) has published a review of a forthcoming article by L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011)(available at SSRN) at Jotwell. In part:

Applying insights from the research on implicit social cognition to policing is salutary. For the officers who hunker down when faced with what feels like another accusation, I hope we can translate implicit bias research in a way that fosters receptivity toward understanding and ameliorating subconscious impact. Perhaps it may help to avoid the term bias, which could shut down the will to listen because it may sound like another personalized accusation. The power of implicit social cognition research is to depersonalize blame, showing how subconscious impact may be a cultural problem, and how people who genuinely believe themselves to be acting nobly may exert subconscious impact. As lawyers, particularly criminal lawyers, we are all too good at pointing fingers. But to progress, perhaps the better approach is to emerge from the posture of fierce polarization and defensiveness and find ways to more accurately see and understand each other.

Mason et al. on Risk and Compensation of Cross-Border Drug Couriers

Caleb E. Mason , David Bjerk and Scott Lesowitz (Southwestern Law School , Claremont Colleges - Robert Day School of Economics and Finance and affiliation not provided to SSRN) have posted The Market for Mules: Risk and Compensation of Cross-Border Drug Couriers on SSRN. Here is the abstract:

This paper uses a unique dataset collected directly from the probable cause narratives filed by federal agents in arrests of individuals caught smuggling drugs though the U.S.-Mexico border to shed light on the cross-border smuggling of drugs from Mexico into the United States. In addition to describing the characteristics of the loads being smuggled into the U.S., we analyze the pay apprehended mules report for attempting to carry their loads across the border to determine whether market forces create a wage premium for differential sentencing risk. Our results reveal that while there is a good deal of unexplained variation in compensation, mules generally appear to be paid compensating wage differentials for loads that carry a higher sentencing risk if detected and for loads that carry an arguably higher likelihood of detection. Our data also reveal that compensation does not appear to be strongly tied to other characteristics of the mule such as gender or citizenship.

DeAngelo et al. on Deterability by Age

Gregory J. DeAngelo , Shawn D. Bushway and Benjamin Hansen (Rensselaer Polytechnic Institute (RPI) - Department of Economics , University at Albany and University of Oregon) have posted Deterability by Age on SSRN. Here is the abstract:

There is a growing cost-benefit conversation about the best policy strategies to prevent crime (e.g. Donohue and Siegelman, 1998; Durlauf and Nagin, 2011; Cook, Ludwig, and McCrary in press). Part of this conversation focuses on identifying the best strategies for preventing crime by particular population sub-groups. This conversation mirrors developments in criminology, where the discussion has changed from a “what works” mentality to a “what works for whom” mentality. One of the most meaningful subgroups for this discussion is adolescents and young adults, who are responsible for a large percentage of overall crime. For example, people in the 15 to 24 age group account for 14% of the population but 40% of all arrests reported to the Uniform Crime Reporting system in 2009 (Crime in the United States, 2009, Table 38). The aim of the current research is to examine the role that age plays, if any, when changes in the legal environment are not age specific. In short, we find that an exogenous reduction in the likelihood of being apprehended results in a uniform augmentation in the egregiousness of the criminal activity (regardless of age). However, we do not find evidence to support a hypothesis of age-driven egregiousness of criminal activity. Instead, we find that all age groups respond quasi-uniformly to reductions in their likelihood of being apprehended.

Rosenthal on religious speech and counterterrorism

Lawrence Rosenthal (Chapman University - School of Law) has posted The Law Professor as Counterterrorist Tactician (Texas Law Review, Vol. 89, No. 1, 2010) on SSRN. Here is the abstract:

This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized.

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Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	2637	Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement Morgan Leigh Manning, University of Tennessee, Knoxville - College of Law, Date posted to database: June 10, 2011
2	493	The Objects of the Constitution Nicholas Quinn Rosenkranz, Georgetown University - Law Center, Date posted to database: May 20, 2011
3	208	Rethinking the Indefinite Detention of Sex Offenders Fredrick E. Vars, University of Alabama - School of Law, Date posted to database: May 24, 2011 [5th last week]
4	157	Proving Prejudice, Post-Padilla Jenny Roberts, American University, Washington College of Law, Date posted to database: April 27, 2011 [6th last week]
5	156	Confined, Crammed, and Inextricable: What The Wire Gets Right David Alan Sklansky, University of California, Berkeley - School of Law, Date posted to database: June 3, 2011 [7th last week]
6	148	Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’ Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: June 19, 2011 [10th last week]
7	140	The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties Martin H. Pritikin, Ezra Ross, Whittier College - Whittier Law School, UCLA School of Law, Date posted to database: June 10, 2011 [new to top ten]
8	134	When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions César Cuauhtémoc García Hernández, Capital University Law School, Date posted to database: May 25, 2011
9	129	What is Securities Fraud? Samuel W. Buell, Duke University School of Law, Date posted to database: June 27, 2011 [new to top ten]
10	128	100 Years of White Collar Crime in 'Twitter' Ellen S. Podgor, Stetson University College of Law, Date posted to database: May 29, 2011 [new to top ten]

Covey on the Causes of Wrongful Convictions

Russell D. Covey (Georgia State University College of Law) has posted Mass Exoneration Data and the Causes of Wrongful Convictions on SSRN. Here is the abstract:

What we currently know about the persons who have been wrongfully convicted is based largely on exonerations resulting from post-conviction testing of DNA. Study of those cases has produced a dataset of information about the factors that contribute to wrongful convictions and the procedures relied upon both to convict and then, later, to exonerate, those defendants. While critically important, this dataset has important limitations, chief among them is that it is largely limited to the kinds of cases in which DNA evidence is available for post-conviction testing.

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Richardson on Marsy's Law and Parole in California

Laura Lienhart Richardson has posted Impact of Marsy’s Law on Parole in California: An Empirical Study on SSRN. Here is the abstract:

Marsy’s Law (Proposition 9) purported to increase Victims’ Rights by making significant changes to parole in California. Supporters of Marsy’s Law intended to decrease lifer inmate’s “chances” to obtain parole by statutorily lengthening the amount of time between parole hearings, and to increase victim presence at parole hearings by creating greater opportunities for victim participation.

I conducted an analysis of 211 randomly selected parole hearing transcripts in California both before and after Marsy’s Law was implemented. I found that the passage of Marsy’s Law nearly doubled the amount of time set by the Parole Board between parole hearings. It is unclear whether Marsy’s Law has increased victim participation at parole hearings or has impacted the quality of victim participation at parole hearings.

Holley on the Constitutionality of Post-Crime Guidelines Sentencing

Benjamin Holley has posted The Constitutionality of Post-Crime Guidelines Sentencing on SSRN. Here is the abstract:

United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.” Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence. The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause? A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition. This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.

Anderson on the Evolution of Burglary

Helen A. Anderson (University of Washington - School of Law) has posted From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law on SSRN. Here is the abstract:

Burglary has been evolving away from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. It expanded early on to include breaking and entering buildings, not just dwellings, and the breaking requirement was little more than symbolic in many jurisdictions. But, sometime between the publication of the 1962 Model Penal Code and today, burglary lost its core, its actus reus: “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to almost any crime that occurred indoors, and justify a significant additional penalty – even death. Burglary thus functions as a “location aggravator” for other crimes. Paradoxically, it may be the shadow of the common law crime that has obscured the breadth and significance of these changes. Burglary’s long tradition and pedigree gives an illusion of solidity to the charge, even when it no longer necessarily describes real criminal conduct beyond the target offense.

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"UK Supreme Court bars 'secret evidence' in Guantanamo trials"

The story is at Jurist. In part:

The appellants, secret service organizations including MI5 [official website], appealing a May 2010 ruling [JURIST report], requested the creation of a "closed material procedure," saying the disclosure of their evidence to the appellees, former Guantanamo detainees, would be contrary to the public interest. This procedure would have involved a special advocate being appointed to the plaintiffs in a civil case to impartially consider the defendants' evidence but not reveal any of it to the plaintiffs. The court rejected this idea, citing the public interest immunity (PII) doctrine as more than suitable for classified information as evidence, and that it was not in the judiciary's power to allow or enforce a new doctrine. The PII allows for information to not be disclosed to opposing parties when it would not be in the public's interest.

Barnes on Measuring Racial Profiling

Katherine Y. Barnes (University of Arizona Rogers College of Law) has posted Measuring Racial Profiling on SSRN. Here is the abstract:

What if racial profiling were useful? Even, perhaps, very useful? Are the costs of racial profiling so significant that racial profiling should be banned? Courts and commentators do not ask these questions; indeed, they rarely, if ever, acknowledge that racial profiling may be useful. This paper explores what costs police would have to justify, and how they might do so in order to use racial profiling legally.

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Rauxloh on Plea Bargaining in Germany

Regina E. Rauxloh (School of Law - University of Surrey) has posted Formalisation of Plea Bargaining in Germany - Will the New Legislation Be Able to Square the Circle? (Fordham International Law Journal, Vol. 34, pp. 296-331, 2010) on SSRN. Here is the abstract:

Although the guilty plea is unknown in the German criminal procedure, informal negotiations which can be compared to plea bargaining in common law systems, play an increasing role in the German criminal process. Like plea bargaining in England and Wales, informal agreements in Germany have long been strongly criticised.

After years of debate among academics and practitioners and developing case law on in-formal agreements, the German Federal Parliament has now passed new legislation which regulates agreements and makes them part of the formal procedure (Gesetz zur Regelung der Verständigung im Strafverfahren). This paper will discuss the development and current prac-tice of informal procedures in Germany and analyse the new legislation. It will argue that the German legislator has missed the opportunity to debate the underlying problems which made informal negotiations necessary in the first place.

Rachlinski et al. on Probable Cause, Probability, and Hindsight

Jeffrey J. Rachlinski (pictured), Andrew J. Wistrich and Chris Guthrie (Cornell Law School , Independent and Vanderbilt Law School) have posted Probable Cause, Probability, and Hindsight on SSRN. Here is the abstract:

When judges assess probable cause, they must do so either in foresight (when determining whether to issue a warrant) or in hindsight (when determining whether to allow the admission of evidence obtained without a search warrant). Although the legal standard for probable cause is the same, and the facts that might support cause are the same, judges who assess probable cause in hindsight invariably know whether a search produced incriminating evidence or not. Research on the hindsight bias suggests that judges will be unable to set aside this knowledge and judge probable cause as if they were working in foresight. In this paper, we present of three experiments in which we asked 900 state and federal judges to make judgments of probable cause either in foresight or in hindsight, in hypothetical cases. Surprisingly, we found that that judges make similar rulings on probable cause in foresight and in hindsight. We also found that hindsight appears to cloud judges’ abilities to assess the likely outcome of the search, but hindsight does not influence their legal judgments.

Dempsey on Uncooperative Victims

Michelle Madden Dempsey (Villanova University School of Law) has posted Public Wrongs and the ‘Criminal Law’s Business’: When Victims Won’t Share (CRIME, PUNISHMENT, AND RESPONSIBILITY: THE JURISPRUDENCE OF ANTONY DUFF, Rowan Cruft, Matthew H. Kramer, and Mark R. Reiff, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.