CrimProf Blog

Cheng on Reconceptualizing Burdens of Proof

Edward K. Cheng (Vanderbilt Law School) has posted Reconceptualizing the Burden of Proof (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

The burden of proof is conventionally described as an absolute probability threshold – for example, the preponderance standard is commonly equated to anything greater than 0.5. In this Essay, I argue that this characterization of the burden of proof is wrong. Rather than focus on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio, and I show how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay hopes the bridge a gap in current evidence scholarship.

Kaye on Early DNA Collection

David H. Kaye (Penn State Law) has posted Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection (North Carolina Law Review Addendum, Vol. 91, No. 1, Oct. 2012, Forthcoming) on SSRN. Here is the abstract:

Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection before conviction is unconstitutional across the board or it is permissible immediately after the arrest. The middle ground of requiring a probable-cause determination for an unrelated offense turns out to be inhospitable.

Brownlee on Social Deprivation in Punishment

Kimberley Brownlee (Warwick University) has posted Social Deprivation and Criminal Justice (RETHINKING CRIMINAL LAW THEORY, p. 217, François Tanguay-Renaud and James Stribopoulos, eds., Hart, 2012) on SSRN. Here is the abstract:

This paper challenges the use of social deprivation in lawful punishment. In this context, ‘social deprivation’ refers not to poverty and its associated social ills, but to genuine social deprivation. Social deprivation is a persisting inadequacy of access to minimally supportive social inclusion. The paper draws on the idea of a general human right against social deprivation to show that there is a specific human right against socially privative punishments such as solitary confinement.

"Crime Report Manipulation Is Common Among New York Police, Study Finds"

From the New York Times:

An anonymous survey of nearly 2,000 retired officers found that the manipulation of crime reports — downgrading crimes to lesser offenses and discouraging victims from filing complaints to make crime statistics look better — has long been part of the culture of the New York Police Department.

The story also quotes Frank Zimring, whose separate research "compared the department’s crime data for homicide, robbery, auto theft and burglary to insurance claims, health statistics and victim surveys and found a near-exact correlation."

He said that there was always “some underreporting, and there is some downgrading in every police force that I know of,” but that his research showed that any manipulation was too minuscule to significantly affect the department’s crime statistics.

Online symposium on Arizona immigration case

You can find the contributions to this event, as well as related coverage, collected at ScotusBlog. 

Su on Police Discretion and Local Immigration Policymaking

Rick Su (State University of New York at Buffalo - Law School) has posted Police Discretion and Local Immigration Policymaking (University of Missouri-Kansas City Law Review, Vol. 79, No. 4, 2011) on SSRN. Here is the abstract:

Immigration responsibilities in the United States are formally charged to a broad range of federal agencies, from the overseas screening of the State Department to the border patrols of the Department of Homeland Security. Yet in recent years, no department seems to have received more attention than that of the local police. For some, local police departments are frustrating our nation’s immigration laws by failing to fully participate in federal enforcement efforts. For others, it is precisely their participation that is a cause for concern. In response to these competing interests, a proliferation of competing state and federal laws have been enacted to restrict the kind of local law enforcement policies that can be established with respect to immigration enforcement.

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Holland on Crawford and Beyond

Brooks Holland (Gonzaga University School of Law) has posted Crawford & Beyond: How Far Have We Traveled from Roberts after All? (Brooklyn Journal of Law and Policy, Vol. 20, No. 517, 2012) on SSRN. Here is the abstract:

This paper reflects on the confrontation right that Crawford v. Washington, 541 U.S. 36 (2004), has delivered since Crawford famously overruled Ohio v. Roberts, 448 U.S. 56 (1980). This paper first outlines how the Supreme Court's recent post-Crawford line of decisions regarding “testimonial” evidence effectively returns us to Roberts — or perhaps to an even more narrow conception of confrontation rights than under Roberts. The paper next explains how confrontation rights could have been understood consistent with our modern adversary system of criminal trials, the direction in which I believed Crawford might take us when it overruled Roberts eight years ago. The paper concludes that if the Supreme Court was not prepared to deliver confrontation law to an important and new constitutional principle through Crawford’s wholesale revision of existing doctrine, the Court perhaps better should have heeded Chief Justice Rehnquist’s call in Crawford for restraint.

Parlow on Recession and Community Policing

Matthew J. Parlow (Marquette University Law School) has posted The Great Recession and its Implications for Community Policing (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:

During the last twenty years, community policing has been the dominant approach to local law enforcement. Community policing is based, in part, on the broken windows theory of public safety. The broken windows theory suggests a link between low-level crime and violent crime — that is, if minor offenses are allowed to pervade a community, they will lead to a proliferation of crime and, ultimately, a community plagued by violent crime. To maintain a perception of community orderliness, many local governments adopted “order maintenance” laws — such as panhandling ordinances and anti-homeless statutes. This emphasis on cracking down on such low-level offenses brought with it an increase in the needs and costs of policing, prosecutions, jails, social services, and other related resources.

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Garner on Criminals in Uniform

John Gardner (University of Oxford - Faculty of Law) has posted Criminals in Uniform on SSRN. Here is the abstract:

In this paper I speak up in defence of an aspect of the ideal of the rule of law that is associated with A.V. Dicey and with the common law tradition, which I call the 'citizens in uniform' doctrine. According to this doctrine public officials, such as police officers, cannot hide behind their official roles in the face of the law. They answer to the ordinary courts for ordinary crimes and torts like the rest of us, and always in their capacities as themselves. Responding to some objections to this doctrine lately expressed by Malcolm Thorburn, I argue that the doctrine is consistent with (and in some respects consonant with) a recognition of the special moral position of the police and similar officials. I devote some energies to explaining aspects of that special moral position in the context of a wider outlook that I end up calling 'the unity of morality'.

Berger on the Polygamy Debate

Benjamin L. Berger (York University - Osgoode Hall Law School) has posted Polygamy and the Predicament of Contemporary Criminal Law (In Gillian Calder and Lori Beaman, eds. Polygamy's Wrongs? The Social Family in the Culture of Rights, Forthcoming) on SSRN. Here is the abstract:

This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a “strange bedfellows” puzzle – the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which links to papers:

• Henderson v. United States: (1) Whether a prior state disposition resulting in a one-year suspended sentence, which is not appealable or considered a ‘conviction’ under state law, is a ‘prior conviction’ that has ‘become final’ for purposes of the penalty enhancement provision of 21 U.S.C. § 851; and (2) whether the Due Process Clause requires the court to apply the rule of lenity in choosing between conflicting precedents with regard to the interpretation of a sentencing statute when the issue has never been decided by the en banc court of appeals and neither decision has been overruled.

Case on Arizona immigration law

Justice Kennedy deliver the opinion for the Court in Arizona v. United States. Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in part. Justice Kagan recused herself.

Case forbidding LWOP for juvenile homicide defendants

Justice Kagan filed the opinion for the Court in Miller v. Alabama. Justice Breyer filed a concurring opinion, in which Justice Sotomayor joined. The Chief Justice filed a dissenting opinion in which Justices Scalia, Thomas, and Alito joined. Justice Alito filed a dissenting opinion in which Justice Scalia joined.

Pouncy on Corporate Criminal Responsibility

Charles R. P. Pouncy (Florida International University College of Law) has posted Reevaluating Corporate Criminal Responsibility: It's All About Power (Stetson Law Review, Vol. 41, No. 1, 2011) on SSRN. Here is the abstract:

Challenging the neoclassical economic theory that corporate behavior is best governed by the self-regulating process of the free market, this Article maintains that corporations should continue to be subjected to criminal prosecution for violating the law. Stressing the underlying struggle between social and economic institutions to shape our future society, the Author employs institutional economic theory to identify the shortcomings inherent in market-deployed mechanisms as they relate to curtailing corporate criminal behavior. First, the Article details the public mistrust of corporations in light of recent scandals and explores divergent views among academia and practicing attorneys regarding the application of criminal law to artificial entities. Next, the Author examines the relationship of corporations and the criminal law through the lens of institutional economic theory, asserting that financial penalties alone fail to deter corporate criminal activity. The Author rebuffs the claim that individual actors, and not corporations, commit crimes — asserting that corporate cultures tacitly influence the individual actor and thus the entity should bear responsibility for criminal behavior. Finally, the Article suggests assigning criminal liability to corporations is a rational reflection of the public sentiment and eliminating corporations from the ambit of criminal law runs counter to the expectations of society.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	649	The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues  Kai Ambos,  Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: March 29, 2012 [2nd last week]
2	551	The Harmful Side Effects of Drug Prohibition Randy E. Barnett,  Georgetown University Law Center,  Date posted to database: March 13, 2012 [3rd last week]
3	542	Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right  Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,  University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,  Date posted to database: April 30, 2012 [4th last week]
4	460	The Mosaic Theory of the Fourth Amendment  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: April 3, 2012 [6th last week]
5	197	Predictive Policing: The Future of Reasonable Suspicion  Andrew Guthrie Ferguson,  UDC David A. Clarke School of Law,  Date posted to database: May 2, 2012 [9th last week]
6	159	The Nature and Purpose of Evidence Theory Michael S. Pardo,  University of Alabama School of Law,  Date posted to database: May 16, 2012 [new to top ten]
7	126	The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion  Robert J. Smith, Robert J. Smith, Justin D. Levinson,  DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,  Date posted to database: April 25, 2012 [new to top ten]
8	130	International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law  Dan E. Stigall,  U.S. Department of Justice, Office of International Affairs,  Date posted to database: April 22, 2012 [new to top ten]
9	441	Corporate Shams  Joshua D. Blank, Nancy C. Staudt,  New York University School of Law, USC Law School,  Date posted to database: April 5, 2012 [5th last week]
10	162	The 2009 NAS Forensic Science Report: A Literature Review  Paul C. Giannelli,  Case Western Reserve University - School of Law,  Date posted to database: April 12, 2012 [8th last week]

 

"Juror Says Panel Had Little Doubt on Sandusky’s Guilt"

From the New York Times. In part:

Harper said there was little debate and even less doubt in the jury room about Sandusky’s guilt. As emotional and wrenching as the accounts were from the eight victims who testified, Harper said the grimmest and most significant testimony came from Mike McQueary, then a graduate assistant, who said he interrupted a sexual assault by his former coach against a young boy in the showers at the university’s football center.

Forell on Female Convicts in Early 19th Century Australia

Caroline Anne Forell (University of Oregon - School of Law) has posted Convicts, Thieves, Domestics, and Wives in Colonial Australia: The Rebellious Lives of Ellen Murphy and Jane New on SSRN. Here is the abstract:

This Article examines the lives of two female convicts who rebelled against the law and the Australian penal system in the early nineteenth century. It follows Ellen Murphy and Jane New from their first arrests through their experiences with and exits from the penal system. As thieves, convicts, domestics, and wives, Ellen and Jane interacted repeatedly with the law. Both the notorious Jane (who was the subject of a habeas corpus action in In re Jane New), and the more representative Ellen, began thieving as young teenagers in the teeming cities of England. The law arrested, tried, and convicted them. Next it transported them to Van Diemen’s Land (now, Tasmania). It then unsuccessfully attempted to manage their lives.

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Rapping on Prosecutors' Duty Not to Overburden the Justice System

Jonathan Rapping (Atlanta's John Marshall Law School) has posted Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect (Washburn Law Journal, Vol. 51, 2012) on SSRN. Here is the abstract:

Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice. With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes.

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Opinion applying revision to crack sentences retroactively

Justice Breyer delivered the opinion for the Court. Justice Scalia filed a dissenting opinion in which the Chief Justice and Justices Thomas and Alito joined.

Opinion applying Apprendi to fines

Justice Sotomayor has the opinion for the Court in Southern Union Co. v. United States. Justice Breyer filed a dissenting opinion in which Justices Kennedy and Alito joined.