CrimProf Blog

Witherspoon on Policy Body Cameras

Pernell Witherspoon (Lindenwood University) has posted Police Body Cameras in Missouri: Good or Bad Policy? An Academic Viewpoint Seen Through the Lens of a Former Law Enforcement Official (Number 2 (Summer/Fall 2014) Missouri Policy Journal) on SSRN. Here is the abstract:

After the fatal shooting of an African American teenager in Ferguson, Missouri on August 9, 2014, various police departments are exploring the use of body cameras. With tensions high, it is hopeful that body worn camera policies will be based on sound research and that appropriate measures are made to achieve optimum effectiveness. The author of this writing, a former law enforcement official and current academic, presents some challenges that police administrators will need to address toward body camera implementation. Because racism is difficult to accurately measure and police are historically reluctant to provide genuine feedback for researchers, the author introduces hypothetical, but realistic, phenomena for Missouri law enforcement leaders to assess. This writing raises questions to who is attracted to or being chosen for the police profession. While difficult and perhaps impossible to prove because of hidden factors, conservatism and lack of college education might be correlated to an officer’s judgment toward delivering equitable treatment to all citizens. Thus, some officers might be motivated to undermine any new policies that hinder their autonomy in policing? The author’s personal experiences are laid out to acknowledge the complexities behind introducing new policies based on knee jerk reactions if self-assessments within departments are not first drawn out.

Strandburg on Membership Lists, Metadata, and Freedom of Association's Specificity Requirement

Katherine J. Strandburg (New York University School of Law) has posted Membership Lists, Metadata, and Freedom of Association's Specificity Requirement (Symposium on NSA Surveillance:  Issues of Security, Privacy, and Civil Liberty, 10 ISJLP 327 (2014)) on SSRN. Here is the abstract:

Revelations of massive aggregation of telephone call records by the NSA have led to widespread debate about the legality, effectiveness, and normative desirability of such broad-based government data collection. This article contends that mass collection of so-called “metadata” as a means to investigate associations impinges on the First Amendment right to associate freely. Such programs thus should, like government demands for membership lists of expressive associations, be subjected to First Amendment scrutiny. While the Fourth Amendment has been the focus of much of the debate about metadata surveillance, the right to freedom of association may provide independent and potentially stronger protection against overreaching government metadata mining. This article contends that the First Amendment subjects metadata surveillance to specificity requirements somewhat akin to the Fourth Amendment’s particularity requirements and that the NSA’s Section 215 data collection does not appear to meet those requirements.

Rosenblat et al. on Inferences & Connections

Alex Rosenblat , Tamara Kneese and danah boyd (Data & Society , Data & Society and Data & Society) have posted Inferences & Connections (The Social, Cultural & Ethical Dimensions of “Big Data,” March 2014) on SSRN. Here is the abstract:

Data-oriented systems are inferring relationships between people based on genetic material, behavioral patterns (e.g., shared geography imputed by phone carriers), and performed associations (e.g., "friends" online or shared photographs). What responsibilities do entities who collect data that imputes connections have to those who are implicated by association? For example, as DNA and other biological materials are collected outside of medicine (e.g., at point of arrest, by informatics services like 23andme, for scientific inquiry), what rights do relatives (living, dead, and not-yet-born) have? In what contexts is it acceptable to act based on inferred associations and in which contexts is it not?

Ball on Realignment in California

W. David Ball (Santa Clara School of Law) has posted 'A False Idea of Economy': Costs, Counties, and the Origins of the California Correctional System on SSRN. Here is the abstract:

Realignment in California comes at a time when the state’s prison system is expensive and overcrowded; the response has been to re-evaluate and reconfigure the way counties use state prisons. This paper illustrates the way in which similar problems and solutions were present at the state’s founding: issues of expense, overcrowding, and the county-state relationship help explain the origins, size and shape of the California prison system. First, California’s lack of money drove it to try to house prisoners on the cheap, starting when it made county jails the state prison system by fiat, continuing through a decade of privatization and convict lease arrangements in San Quentin, and concluding with a state-administered system partly funded by prison labor. By the time the value of prison labor atrophied and the true costs of a non-remunerative prison population revealed itself, the state was locked into fiscal and administrative responsibility for prisoners. Second, California sought to relieve crowding in its prisons, though it generally did so via back-end mechanisms such as pardons and parole, justifying these moves in part on the basis that they would make rehabilitation possible and ultimately save the state money. Finally, there were concerns about whether fiscal arrangements gave local officials incentives to send prisoners to the state. In some instances, the solutions proposed resemble today’s Realignment.

Sarch on The Mens Rea for Complicity

Alex F. Sarch (University of Southern California - Center for Law and Philosophy) has posted Condoning the Crime: The Elusive Mens Rea for Complicity on SSRN. Here is the abstract:

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention that the underlying crime succeed, while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime — the so-called “derivative approach.” However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This paper develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than existing approaches. Moreover, it demonstrates that certain reforms to the current legal regime are warranted: most importantly, that a distinction between full and lesser complicity be recognized.

Materni on Causation

Mike C. Materni has posted Rebooting the Discourse on Causation in the Criminal Law: A Pragmatic (and Imperfect) Approach (Criminal Law Bulletin, Volume 50 Issue 6, Winter 2014) on SSRN. Here is the abstract:

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the concept of cause to its function within the criminal law, the Article maintains that “cause” should be informed to the idea of necessity, not sufficiency — nor any other idea of “cause,” no matter how strong or even better that idea might be from the perspective of metaphysics. The proposal advanced in this Article, while necessarily imperfect, gives coherence to a concept (that of but for cause) that, as of today, has been thought to be faulty and flawed to the point of inadequacy. Only by understanding causation within this framework it will be possible to move past the flawed dichotomy of “cause in fact” and “proximate cause” and focus on the more delicate policy issues that relate to culpability. While it is not the Article's goal to be the last word on the subject — indeed, the Article expressly aims to be an initial building block — the Article does clarify several basic (and yet, until now, somewhat obscure) concepts that relate to causation in the criminal law, thus raising the level of discourse and providing a stronger foundation for further debate on the subject.

Ahmed on HIV, Violence Against Women, and Criminal Law Interventions

Aziza Ahmed (Northeastern University - School of Law) has posted HIV, Violence Against Women, and Criminal Law Interventions (CUNY Law Review, VAWA @ 20 Symposium) on SSRN. Here is the abstract:

In this invited response to the 20th anniversary of VAWA, the author examines new tensions between criminal law regimes purportedly addressing violence against women and HIV interventions. The consequences of defining all transactional sex work as violence against women include increased arrests, especially for women of color, and disincentives to use condoms for fear of providing evidence to prosecutors. The author concludes that while well-meaning, the blunt tools of the criminal law system supported by abolitionist feminists offer little to remedy the complex realities that accompany the precarious existence of many in the sex industry.

Meixner & Rosenfeld on Memory Detection

John B. Meixner and J. Peter Rosenfeld (Northwestern University - School of Law and Northwestern University - Department of Psychology) have posted Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test (Psychological Science, Vol. 25, No. 11, 2014) on SSRN. Here is the abstract:

Autobiographical memory for events experienced during normal daily life has been studied at the group level, but no studies have yet examined the ability to detect recognition of incidentally acquired memories among individual subjects. We present the first such study here, which employed a concealed-information test in which subjects were shown words associated with activities they had experienced the previous day. Subjects wore a video-recording device for 4 hr on Day 1 and then returned to the laboratory on Day 2, where they were shown words relating to events recorded with the camera (probe items) and words of the same category but not relating to the subject’s activities (irrelevant items). Electroencephalograms were recorded, and presentation of probe items was associated with a large peak in the amplitude of the P300 component. We were able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 nonknowledgeable subjects who viewed only irrelevant items. These results have strong implications for the use of memory-detection paradigms in criminal contexts.

Bellin on The Case for eHearsay

Jeffrey Bellin (William & Mary Law School) has posted The Case for eHearsay (Fordham Law Review, Vol. 83, No. 1317, 2014) on SSRN. Here is the abstract:

This Essay is a contribution to the “Symposium on the Challenges of Electronic Evidence” convened in April 2014 by the Advisory Committee on the Federal Rules of Evidence. The Essay illustrates the application of a proposal, under consideration by the Committee, for a hearsay exception for Recorded Statements of Recent Perception. It also responds to concerns about the proposal raised by Professors Paul Shechtman and Colin Miller, and situates the proposal in the context of broader calls for hearsay reform by Judge Richard Posner and others.

Shavell on Optimal Deterrence and Incapacitation

Steven Shavell (Harvard Law School) has posted A Simple Model of Optimal Deterrence and Incapacitation (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:

The deterrence of crime and its reduction through incapacitation are studied in a simple multiperiod model of crime and law enforcement. Optimal imprisonment sanctions and the optimal probability of sanctions are determined. A point of emphasis is that the incapacitation of individuals is often socially desirable even when they are potentially deterrable. The reason is that successful deterrence may require a relatively high probability of sanctions and thus a relatively high enforcement expense. In contrast, incapacitation may yield benefits no matter how low the probability of sanctions is — implying that incapacitation may be superior to deterrence.

Lapp on DNA Collection from Juveniles

Kevin Lapp (Loyola Law School Los Angeles) has posted As Though They Were Not Children: DNA Collection from Juveniles (Tulane Law Review, Vol. 89, p. 435, 2014) on SSRN. Here is the abstract:

Law enforcement craves data. Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles. DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted. So alluring is DNA collection that the practice has rapidly expanded to juveniles. The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system. A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection. Law enforcement also seeks DNA samples from juveniles based on their consent.

Continue reading

Rothstein on Confrontation

Paul F. Rothstein (Georgetown University Law Center) has posted Unwrapping the Box the Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations over Confronting the Confrontation Clause (Howard Law Journal, Vol. 58, Forthcoming) on SSRN. Here is the abstract:

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Continue reading

Top-Ten Recent SSRN Downloads

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

 

Rank	Downloads	Paper Title
1	186	Debating Rape Myths  Helen Reece  London School of Economics - Law Department  Date posted to database: 9 Dec 2014 [4th last week]
2	183	Laws of Cognition and the Cognition of Law  Dan M. Kahan  Yale University - Law School  Date posted to database: 30 Oct 2014 [1st last week]
3	180	Why Crime Rates Are Falling Throughout the Western World  Michael Tonry  University of Minnesota - Twin Cities - School of Law  Date posted to database: 9 Nov 2014 [2nd last week]
4	167	The Compliance Function: An Overview  Geoffrey P. Miller  New York University School of Law  Date posted to database: 20 Nov 2014 [3rd lasst week]
5	145	Consent Culture and the Forgotten Law of Rape  Deborah Tuerkheimer  Northwestern University - School of Law  Date posted to database: 30 Oct 2014
6	139	Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism  Anita Mukherjee  University of Pennsylvania - The Wharton School  Date posted to database: 13 Nov 2014 [7th last week]
7	127	'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5  Michael L. Perlin  New York Law School  Date posted to database: 13 Nov 2014 [8th last week]
8	123	The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling  Scott E. Sundby  University of Miami School of Law  Date posted to database: 3 Dec 2014 [9th last week]
9	108	The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama  Jason Zarrow and William Milliken  Independent and Independent Date posted to database: 26 Nov 2014 [10th last week]
10	103	The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation  Dov Jacobs  Leiden University - Grotius Centre for International Legal Studies  Date posted to database: 18 Nov 2014 [new to top ten]

"Should a shoplifting conviction be an indelible scarlet letter? Not in California"

An op-ed from the L.A. Times:

While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person's ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet.

But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who've had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one.

Leo on The Justice Gap and the Promise of Criminological Research

Richard A. Leo (University of San Francisco - School of Law) has posted Paul Tappan Award Winner Keynote Address: The Justice Gap and the Promise of Criminological Research (15 Criminology, Criminal Justice, Law & Society 1 (2014)) on SSRN. Here is the abstract:

This essay discusses the justice gap in the criminal justice system -- the difference between the promise of justice inherent in our formally democratic, legal institutions and the actual delivery of justice within these institutions. The author argues that criminologists are in a unique position to expose and study the justice gap in the American legal system by bringing methodologically rigorous empirical research skills and data-driven knowledge to bear on these problems. The essay details how empirical research has been instrumental in developing best practices to prevent wrongful convictions by improving the criminal justice system’s reliability. The author describes several justice gaps in the American criminal justice system and traces the history of empirical scholarship in American police interrogation, false confessions, and wrongful convictions over the last two decades.

Grabosky on The Evolution of Cybercrime

Peter Grabosky (Australian National University (ANU) - Research School of Social Sciences (RSSS)) has posted The Evolution of Cybercrime, 2004-2014 on SSRN. Here is the abstract:

This article reviews developments in cybercrime in the ten years to 2014. It observes that in the basic substance of cybercrime offences is essentially the same as in the past. However, cybercrimes are now executed with greater sophistication, increasingly for purposes of financial gain, and by an increased diversity of organizational structures, including government agencies and state proxies. The article concludes with a discussion of applications of digital technology that have emerged over the past decade, and their potential for criminal exploitation.

"How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties"

FourthAmendment.com links to this article in The Week. 

 

"Self-defense is a constitutional right"

Eugene Volokh has this post at The Volokh Conspiracy, discussing a recent case. In part:

But sometimes self-defense law contains substantial gaps (perhaps unintended by the legislature). One such gap is that many state penal codes — including, apparently, in Washington — expressly provide for self-defense only againstpeople and not against animals. And in State v. Hull, the prosecution actually argued that “Self-defense is a defense to the use of force against a person, not an animal,” so Hull “was not entitled to a self-defense instruction.” “The language of the Washington Pattern Instruction 17.02,” the prosecution argued, “is … clearly limited to lawful ‘force upon or toward the person of another.’ Simply put, a dog is not a ‘person’ as contemplated by either the statute or the pattern instruction,” so when someone is tried for injuring a dog, the jury isn’t supposed to consider whether he acted in self-defense.

That can’t be right, and the Washington Court of Appeals said it wasn’t right. Indeed, the court said, there is a constitutional right to self-defense, for three related reasons . . . .

Yeager on Cop Killers

Daniel B. Yeager (California Western School of Law) has posted Cop Killers (48 Criminal Law Bulletin 428, 2012) on SSRN. Here is the abstract:

The controlling purpose of this Article is to reach discovery or agreement on why police kill so often on facts that do not call for deadly force. I hope it is not out of order to qualify that I have absolutely no interest in badmouthing the police. In fact, I accept with equanimity the accuracy of many of their claims, even those appearing in the rants of ex-police officers, who view Rodney King as the symbol of all that is wrong — not with police — but with their critics. The idea that those drawn to policing either want to bully or be bullied, are racist, or share any other negative trait found less frequently among the general population may have some basis in reality. However, nowhere do I suggest that police are somehow bad people whose badness is manifested by their unnecessarily killing people. Instead, my aim is to uncover why presumptively normal, well-adjusted, well-intended professionals who genuinely want to help others would be prone to overreact to perceived physical threats that they encounter on the street. 

The conventional argument is sound, at least to a point: police typically kill only when necessary; when they kill unnecessarily, it is a function of justifiable fear, which precludes them from perfecting their information about what sort of threat they are facing before reacting to it with deadly force, nondeadly force, or no force at all.

Continue reading

Reece on Debating Rape Myths

Helen Reece (London School of Economics - Law Department) has posted Debating Rape Myths on SSRN. Here is the abstract:

In a recent article, I argued that the regressiveness of current public attitudes towards rape has been overstated, suggesting that, to a troubling extent, we are in the process of creating myths about myths. The article itself and the arguments contained within it have provoked various responses from feminists. While these responses proceed at times on the basis of misunderstandings or misinterpretations of my argument, they are helpful both in clarifying areas of disagreement and in underscoring some important points of agreement - at times explicitly by accepting, and at other times implicitly by leaving unchallenged, some of my core claims. In what follows, I aim to point out the misunderstandings or misinterpretations, and to clarify both the areas of assent and the areas of dissent in an attempt to move us towards the productive public conversation we believe we want.