CrimProf Blog

Rapping on Returning Gideon's Trumpet

Jonathan Rapping (Atlanta's John Marshall Law School) has posted Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis (Texas Law Review, Vol. 92, No. 1225, 2014) on SSRN. Here is the abstract:

The Gideon Court recognized a truism: until we ensure that poor people have access to the same quality of counsel that people with means can pay for, we cannot have equal justice. But fifty years later, the promise of equal justice has not materialized. In so many ways, our criminal justice system is less fair; less equal; less humane. Since Gideon was decided, the U.S. imprisonment rate has nearly quadrupled, and the percentage of people charged with crimes who are poor has roughly doubled. As compared to 1963, poor people today are more likely to be arrested, convicted, and sentenced to lengthier prison terms than their wealthier counterparts.

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Henderson on Teaching the Carceral Crisis

Taja-Nia Y. Henderson (Rutgers School of Law - Newark) has posted Teaching the Carceral Crisis: An Ethical and Pedagogical Imperative (13 MARGINS (University of Maryland Law Journal of Race, Religion, Gender and Class) 104 (July 2013), 104-133) on SSRN. Here is the abstract:

Law schools have done a poor job educating future members of the bench and bar about the criminalization, conviction, and incarceration crisis in criminal justice administration in the United States. This Article sketches the contours of this curricular failure, and concludes that no single criminal law or sentencing casebook -- and few criminal justice-related courses -- treats these issues with the seriousness that each deserves. The Article considers whether and how to incorporate hyper-criminalization, conviction and incarceration into standard law school courses. Inclusion of these issues can expand students' career prospects, encourage further critical study, and, ultimately, has the potential to alter both the pace and the scope of the country's current troubling criminal justice trends.

Cook & Ludwig on Elusive Facts About Guns Violence

Philip J. Cook and Jens Ludwig (Duke University - Sanford School of Public Policy and University of Chicago) have posted Elusive Facts About Guns Violence: Where Good Surveys Go Bad (Mike Maltz (ed.) Envisioning Criminology: A Handbook of Emerging Research Strategies for Studying Crime and Justice (Forthcoming)) on SSRN. Here is the abstract:

Sometimes a survey is well designed, but the resulting estimates are demonstrably wrong, and by a wide margin. For that reason, we believe that if getting a reasonably accurate estimate is important (and if it is not, why bother?), then the analyst should ask and attempt to answer the following prosaic question: “Given everything we know, both from the survey in question and other sources, is this estimate in the right ballpark?” We might call this a “plausibility test.” It may seem like common sense, but a quick scan of reports of survey results will demonstrate that a discussion of procedure is far more common than a discussion of plausibility. 

In what follows we consider three examples from the study of gun ownership and use (or misuse).

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Tonry on Moving Past Mass Incarceration

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration (Criminology & Public Policy (Forthcoming)) on SSRN. Here is the abstract:

When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear: 

-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed. 

-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity. 

-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.” 

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Mastrobuoni & Pinotti on Legal Status and the Criminal Activity of Immigrants

Giovanni Mastrobuoni and Paolo Pinotti (University of Essex - Department of Economics and Bocconi University - BAFFI Center on International Markets, Money, and Regulation) have posted Legal Status and the Criminal Activity of Immigrants on SSRN. Here is the abstract:

We exploit exogenous variation in legal status following the January 2007 European Union enlargement to estimate its effect on immigrant crime. We difference out unobserved time-varying factors by 1) comparing recidivism rates of immigrants from the “new” and “candidate” member countries and 2) using arrest data on foreign detainees released upon a mass clemency that occurred in Italy in August 2006. The timing of the two events allows us to set up a difference-in-differences strategy. Legal status leads to a 50 percent reduction in recidivism and explains one-half to two-thirds of the observed differences in crime rates between legal and illegal immigrants.

Alschuler on Re on the Exclusionary Rule

Albert W. Alschuler (University of Chicago Law School) has posted Regarding Re's Revisionism: Notes on 'The Due Process Exclusionary Rule' (Harvard Law Review, Vol. 127, No. 8, pp. 302-324, June 2014) on SSRN. Here is the abstract:

This paper responds to Richard Re’s argument in The Due Process Exclusionary Rule, 127 HARV. L. REV. 1885 (2014) (available at SSRN: http://ssrn.com/abstract=2401979), that a “new originalist” understanding of the Due Process Clauses of the Fifth and Fourteenth Amendments justifies the exclusion of unlawfully obtained evidence. It considers the original objectives of these two clauses, notes some difficulties with Re’s argument, and objects to the restrictions of both constitutional requirements and the exclusionary remedy that Re proposes.

Findley & O'Brien on Cognition, Decision Making, and Wrongful Convictions

Keith A. Findley and Barbara O'Brien (University of Wisconsin Law School and Michigan State University - College of Law) have posted Psychological Perspectives: Cognition and Decision Making (Chapter Three in Examining Wrongful Convictions: Stepping Back, Moving Forward, Carolina Academic Press, 2014 Forthcoming) on SSRN. Here is the abstract:

In this chapter from the forthcoming edited volume entitled, EXAMINING WRONGFUL CONVICTIONS: STEPPING BACK, MOVING FORWARD, we offer an overview of what social and cognitive psychological research can tell us about how people make decisions about investigating, prosecuting, and adjudicating criminal cases. In particular, we examine the factors that can undermine the reliability of the judgments made at each of these stages of the criminal process, and how these phenomena might contribute to wrongful convictions. An impressive body of research exists demonstrating how the ways in which people process and use information can produce errors in the criminal justice system. This research has also taught us a lot about how to improve the accuracy of the system.

Pardo on Group Agency and Legal Proof

Michael S. Pardo (University of Alabama School of Law) has posted Group Agency and Legal Proof; or, Why the Jury is an 'It' (William & Mary Law Review, Vol. 56, 2015, Forthcoming) on SSRN. Here is the abstract:

Jurors decide whether certain facts have been proven, according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent, with agency that may differ from that of its members.

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Vars on The Future of Preventive Detention

Fredrick E. Vars (University of Alabama - School of Law) has posted The Future of Preventive Detention (Louisiana Law Review, Vol. 75, 2014) on SSRN. Here is the abstract:

America is presently fighting a war on terror and war on sex offenders. In each, the government openly detains hundreds of individuals not for what they have done, but for what they might do. Some warn that this greatest restriction on liberty may expand to other types of people. This Article examines the risk of such expansion by putting our current wars in historical perspective. The two main conclusions are: (1) some categories of people detained in prior periods are not being detained today; and (2) the risk of expansion is real but lower than previously suggested.

Lyons on Justification, Excuse, and the Principle of Double Effect

Edward C. Lyons (Oklahoma City University School of Law) has posted Slaughter of the Innocents: Justification, Excuse, and the Principle of Double Effect (Berkeley Journal of Criminal Law Vol 18:2, Fall 2013) on SSRN. Here is the abstract:

This article proposes the principle of double effect as the foundation for a cogent alternative to the Model Penal Code’s controversial defenses to justified and excused homicide of the innocent. Proponents of the principle of double effect recognize that persons may sometimes find themselves burdened with unavoidable choices where all possible outcomes involve harmful and tragic consequences for themselves or others. In such circumstances, its proponents assert that at times it is permissible to cause foreseeable, but unintentional, taking of innocent human life. Double effect thus acknowledges, in a way that traditional legal theory does not, that sometimes the tragic “taking of innocent life” may be justified. At the same time, however, the principle of double effect conforms to the traditional view in asserting that any intentional, i.e., purposeful, taking of innocent life, despite its utilitarian benefit, can never be justified and no law or defense should provide otherwise.

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Fan on Legalization Conflicts and Reliance Defenses

Mary Fan (University of Washington - School of Law) has posted Legalization Conflicts and Reliance Defenses (55 Washington University Law Review (Wash. U. St. Louis) (Forthcoming)) on SSRN. Here is the abstract:

This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense. A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime. For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees. If people take actions now in reliance, will they face sanctions later? The question is of great import for many people and businesses, as well as the lawyers who advise them. 

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Sebok on Deterrence, Criminal Law, and Punitive Damages

Anthony J. Sebok (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Normative Theories of Punitive Damages: The Case of Deterrence (John Oberdiek, ed., Philosophical Foundations of the Law of Torts (OUP 2014)) on SSRN. Here is the abstract:

This essay argues that deterrence-based theories of punitive damages face difficulties that deterrence-based theories of criminal punishment and most other deterrence-based theories of private law do not face. The essay notes that deterrence-based theories of punitive damages can be distinguished from theories that justify the imposition of punitive damages based on retribution and compensation, although courts (including the U.S. Supreme Court) generally do not feel compelled to pick among theoretical justifications. This essay does not argue on behalf of any other justification; it argues against deterrence.

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Opinion holding double jeopardy bars prosecution of defendant when prosecution declines to proceed

The per curiam opinion is in Martinez v. Illinois.

Opinion rejecting Florida's IQ cutoff for death cases

Justice Kennedy delivered the opinion for the Court in Hall v. Florida. Justice Alito dissented, joined by the Chief Justice and Justices Scalia and Thomas.

Opinion upholding deadly force to stop car chase

Justice Alito delivered the opinion for the Court in Plumhoff v. Rickard. Justice Ginsburg and Justice Breyer joined in parts of the majority opinion.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	384	Thinking Slow About Sexual Assault in the Military  Matthew David Burris  United States Airforce  Date posted to database: 26 Mar 2014 [2nd last week]
2	195	The Criminal Class Action  Adam S. Zimmerman and David Michael Jaros  Loyola Law School Los Angeles and University of Baltimore - School of Law  Date posted to database: 29 Apr 2011 [6th last week]
3	194	Can Employment Reduce Lawlessness and Rebellion? A Field Experiment with High-Risk Youth in a Fragile State  Christopher Blattman and Jeannie Annan  Columbia University - School of International & Public Affairs (SIPA) and International Rescue Committee  Date posted to database: 2 May 2014 [8th last week]
4	188	A Conversation with Richard Bistrong: FCPA Violator and Undercover Cooperator  Mike Koehler  Southern Illinois University School of Law  Date posted to database: 12 Apr 2014 [7th last week]
5	181	Military Courts and Article III  Stephen I. Vladeck  American University - Washington College of Law  Date posted to database: 3 Apr 2014 [9th last week]
6	181	Waiving the Criminal Justice System: An Empirical and Constitutional Analysis  Susan R. Klein, Donna Lee Elm andAleza S Remis  University of Texas School of Law, University of Texas at Austin - School of Law and University of Texas at Austin - School of Law  Date posted to database: 12 Apr 2014 [10th last week]
7	146	Drugs and Violence  Shima Baradaran  University of Utah - S.J. Quinney College of Law  Date posted to database: 1 Apr 2014 [new to top ten]
8	139	Re-Balancing Fitness, Fairness, and Finality for Sentences  Douglas A. Berman  Ohio State University (OSU) - Michael E. Moritz College of Law  Date posted to database: 3 May 2014 [new to top ten]
9	137	Deference Mistakes  Jonathan S. Masur and Lisa Larrimore Ouellette  University of Chicago - Law School and Yale Law School - Information Society Project  Date posted to database: 21 Mar 2014 [new to top ten]
10	136	Catalogs  Gideon Parchomovsky and Alex Stein  University of Pennsylvania Law School and Yeshiva University - Benjamin N. Cardozo School of Law  Date posted to database: 21 Mar 2014 [new to top ten]

A case study of prosecutorial charging and substantial assistance

The Pittsburgh Post-Gazette has a story examining sentencing patterns in mortgage fraud cases, based on a review including students from Duquesne University School of Law under the supervision of Professor Wesley Oliver. In part:

[T]he effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.

That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.

A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system. Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.

Heise on Death Row Clemency

Michael Heise (Cornell Law School) has posted The Death of Death Row Clemency and the Evolving Politics of Unequal Grace on SSRN. Here is the abstract:

While America’s appetite for capital punishment continues to wane over time, clemency for death row inmates is all but extinct. Moreover, what little clemency activity that persists continues to distribute unevenly across gender, racial and ethnic groups, geography, governors’ political affiliation, and over time. Insofar as courts appear extremely reluctant to review – let alone interfere with – clemency activity, little, if any, formal legal recourse exists. Results from this study of clemency activity on state death rows (1973-2010) suggest that potential problems arise, however, to the extent that our criminal justice system relies on clemency to function as coherent extrajudicial check.

Howell on the Prosecutor's Duty to Seek Justice

Babe Howell (CUNY School of Law) has posted Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System (27 Georgetown Journal of Legal Ethics 285 (2014)) on SSRN. Here is the abstract:

Prosecutors have a special ethical duty to seek justice. However, prosecutors cannot meet that duty where zero-tolerance policing has resulted in overburdened lower criminal courts. Prosecution in these overburdened courts undermines justice in two important ways. First, because zero-tolerance policing is typically enforced in communities of color, racial disparities in criminalization are exacerbated and unequal enforcement of the law is permitted. Second, the overburdened criminal justice system does not reliably distinguish between constitutional and unconstitutional arrests, or between guilty and innocent individuals. 

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Hutchins on Trial Juries and Credibility

Renee M. Hutchins (University of Maryland Francis King Carey School of Law) has posted You Can't Handle the Truth! Trial Juries and Credibility (Seton Hall Law Review, Vol. 44, 2014) on SSRN. Here is the abstract:

Every now and again, we get a look, usually no more than a glimpse, at how the justice system really works. What we see — before the sanitizing curtain is drawn abruptly down — is a process full of human fallibility and error, sometimes noble, more often unfair, rarely evil but frequently unequal.

The central question, vital to our adjudicative model, is: How well can we expect a jury to determine credibility through the ordinary adversary processes of live testimony and vigorous impeachment? The answer, from all I have been able to see is: not very well.