CrimProf Blog

Kahan on Emotion in Criminal Law

Dan M. Kahan (Yale University - Law School) has posted Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz (prepublication draft of Kahan, D. M. (2011). Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz. In The Political Heart of Criminal ProcedureD. S. Michael Klarman & C. Steiker (Eds.), (pp. 163-176): Cambridge University Press) on SSRN. Here is the abstract:

This essay examines alternative explanatory theories of the treatment of emotion in criminal law. In fact, it re-examines a previous exposition on this same topic. In Two Conceptions of Emotion in Criminal Law (Kahan & Nussbaum 1996), I argued that the law, despite a surface profession of fidelity to a mechanistic conception of emotion, in fact reflects an evaluative one: rather than thoughtless surges of affect that impair an actor’s volition, emotions, on this account, embody a moral evaluation of the actor that is in turn subject to moral evaluation by legal decisionmakers as “right” or “wrong,” “virtuous” or “vicious,” and not merely as “strong” or “weak” in relation to the actor’s volition. I now qualify this claim — and indeed reject certain parts of it. I do so on the basis of an alternative conception of the evaluative conception of emotion: whereas the position in Kahan & Nussbaum (1996) treats the evaluative conception as implementing a conscious moral appraisal on the part of decisionmakers, the alternative sees it, at least sometimes, as a product of decisoinmakers’ unconscious vulnerability to appraisals they themselves would view as subversive of the law’s moral principles, which might well invest volitional impairment with normative significance. I examine the empirical evidence, amassed by various researchers including (without giving this point much thought) by me, for this third view, which I label the “cognitive conception” as opposed to the earlier (Kahan & Nussbaum 1996) “moral conception” of the “evaluative” view of emotions in criminal law.

Aliverti on The Wrong of Unlawful Immigration

Ana Aliverti (University of Warwick - School of Law) has posted The Wrongs of Unlawful Immigration (Criminal Law and Philosophy, DOI 10.1007/s11572-015-9377-y (pp 1-18) (Online First)) on SSRN. Here is the abstract:

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offence are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. The purpose of this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they licence excessive imposition of pain.

Pfaff on Federal Grants and State Imprisonment

John F. Pfaff (Fordham University School of Law) has posted Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.

In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.

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Maclin on Interrogation Law

Tracey Maclin (Boston University - School of Law) has posted A Comprehensive Analysis of the History of Interrogation Law, with Some Shots Directed at Miranda v. Arizona (Boston University Law Review, Vol. 95, 2015) on SSRN. Here is the abstract:

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been said that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment, and that the Miranda warnings “have become part of our national culture,” persons steadfastly against police interrogation are difficult to identify. Surely many Americans agree with Professor George Thomas when he asks: “Who claims [a right to silence] unless he has something to hide?” Moreover, Justices and legal scholars often argue that interrogation is indispensable to solving crimes. Even scholars who have provided the most compelling critiques of police interrogation would not abolish the practice.

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Pinard on Criminal Justice in Ferguson and Baltimore

Michael Pinard (University of Maryland Francis King Carey School of Law) has posted Poor, Black and 'Wanted': Criminal Justice in Ferguson and Baltimore (Howard Law Journal, Vol. 58, No. 3, 2015 Forthcoming) on SSRN. Here is the abstract:

Ferguson, Missouri is everywhere. This has been an enduring and sad lesson in the year since Michael Brown was killed. The national spotlight has moved throughout cities and towns across the United States, as unarmed Black men, women and children have been killed by police officers at an exhausting pace. Mr. Brown’s death has caused stakeholders to grasp and examine the similarities between the wide range of issues impacting Ferguson’s Black communities and their respective communities. Thus, the events in Ferguson have been the source of reflection, examination and action. In that spirit, this essay looks at some similarities between Ferguson and Baltimore, which have grown despairingly closer in light of Freddie Gray’s death in April 2015. Specifically, the essay explores the vast capacities of the criminal justice systems in these two cities to police and prosecute communities of color, particularly for low-level crimes that flood the criminal court dockets in both jurisdictions. It then focuses on ways in which poor, Black residents in Ferguson and Baltimore remain stuck in the criminal justice system because of court-issued warrants.

Kerr on An Economic Understanding of Search and Seizure Law

Orin S. Kerr (The George Washington University Law School) has posted An Economic Understanding of Search and Seizure Law (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:

This article uses economic concepts to understand the function of search and seizure law, the law governing government investigations that is most often associated with the Fourth Amendment. It explains search and seizure law as a way to increase the efficiency of law enforcement by accounting for external costs of investigations. The police will often discount negative externalities imposed by their work. Search and seizure law responds by prohibiting investigative steps when external costs are excessive. By conditioning law enforcement steps on specific factual predicates, the law channels government resources into welfare-enhancing investigative paths instead of welfare-reducing steps that would occur absent legal regulation. This perspective on search and seizure law is descriptively helpful; it provides a useful analytical language to describe the role of different Fourth Amendment doctrines; and it provides fresh normative insights concerning recurring debates in Fourth Amendment law.

Mayer on Constitutional Malware

Jonathan Mayer has posted Constitutional Malware on SSRN. Here is the abstract:

The United States government hacks computer systems, for law enforcement purposes. According to public disclosures, both the Federal Bureau of Investigation and Drug Enforcement Administration are increasingly resorting to computer intrusions as an investigative technique. This article provides the first comprehensive examination of how the Constitution should regulate government malware.

When applied to computer systems, the Fourth Amendment safeguards two independent values: the integrity of a device as against government breach, and the privacy properties of data contained in a device. Courts have not yet conceptualized how these theories of privacy should be reconciled.

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Wong on Warrantless Cell Phone Searches

Marco Y. Wong has posted United States v Camou: Warrantless Cell Phone Searches after Riley v California (Legal Issues Journal, Vol. 3, Issue 2, pp. 117-135, 2015) on SSRN. Here is the abstract:

This Comment examines how the Fourth Amendment applies to warrantless cell phone searches in United States v Camou, and questions whether the Ninth Circuit’s ultimate position is desirable. Last year, in Riley v California, the United States Supreme Court held that a police officer should generally get a warrant before searching a defendant’s cell phone incident to her arrest. It explained that cell phone searches may be very intrusive of one’s privacy because of the amount of information that cell phones can contain, as well as their pervasiveness in our lives. The Camou court was challenged with what this insight meant for other exceptions to the Fourth Amendment’s traditional warrant requirement. 

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Crofts on The Age of Criminal Responsibility

Thomas Crofts (University of Sydney - Faculty of Law) has posted A Brighter Tomorrow: Raise the Age of Criminal Responsibility (Current Issues in Criminal Justice, 2015 Forthcoming) on SSRN. Here is the abstract:

A report released by Amnesty International in May 2015 highlights the alarming overrepresentation of Indigenous young people in detention in Australia. It calls on the Australian Commonwealth Government to make a number of legislative changes to address this issue, which the report argues are necessary to ensure Australia’s compliance with its obligations under the UN Convention on the Rights of the Child. The foremost area in need of reform identified in the report is the low age of criminal responsibility in Australia. This note examines Amnesty International’s arguments for an increase in the minimum age of criminal responsibility and agrees that the age should be raised to at least twelve.

Lott et al. on Concealed Carry Permit Holders

John R. Lott Jr., John E Whitley and Rebekah C. Riley (Crime Prevention Research Center , Crime Prevention Research Center and Crime Prevention Research Center) have posted Concealed Carry Permit Holders Across the United States on SSRN. Here is the abstract:

Since President Obama’s election the number of concealed handgun permits has soared, growing from 4.6 million in 2007 to over 12.8 million this year. Among the findings in our report:
-- The number of concealed handgun permits is increasing at an ever- increasing rate. Over the past year, 1.7 million additional new permits have been issued – a 15.4% increase in just one single year. This is the largest ever single-year increase in the number of concealed handgun permits.
-- 5.2% of the total adult population has a permit.
-- Five states now have more than 10% of their adult population with concealed handgun permits.
-- In ten states, a permit is no longer required to carry in all or virtually all of the state. This is a major reason why legal carrying handguns is growing so much faster than the number of permits.
-- Since 2007, permits for women has increased by 270% and for men by 156%.
-- Some evidence suggests that permit holding by minorities is increasing more than twice as fast as for whites.
-- Between 2007 and 2014, murder rates have fallen from 5.6 to 4.2 (preliminary estimates) per 100,000. This represents a 25% drop in the murder rate at the same time that the percentage of the adult population with permits soared by 156%. Overall violent crime also fell by 25 percent over that period of time.
-- States with the largest increase in permits have seen the largest relative drops in murder rates.
-- Concealed handgun permit holders are extremely law-abiding. In Florida and Texas, permit holders are convicted of misdemeanors or felonies at one-sixth the rate that police officers are convicted.

Dervan on White Collar Sentencing

Lucian E. Dervan (Southern Illinois University School of Law) has posted Sentencing the Wolf of Wall Street: From Leniency to Uncertainty (Wayne Law Review, Vol. 61, No. 1, 2015) on SSRN. Here is the abstract:

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time. In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.

Weisburd et al. on Problem-Oriented Policing

David L. Weisburd , Cody W. Telep , Joshua C. Hinkle and John E. Eck (Hebrew University of Jerusalem , George Mason University , University of Maryland and University of Cincinnati) have posted Is Problem-Oriented Policing Effective in Reducing Crime and Disorder? Findings from a Campbell Systematic Review (Criminology and Public Policy 9 (1): 139-172) on SSRN. Here is the abstract:

We conducted a Campbell systematic review to examine the effectiveness of problem-oriented policing (POP) in reducing crime and disorder. After an exhaustive search strategy that identified more than 5,500 articles and reports, we found only ten methodologically rigorous evaluations that met our inclusion criteria. Using meta-analytic techniques, we found an overall modest but statistically significant impact of POP on crime and disorder. We also report on our analysis of pre/post comparison studies. Although these studies are less methodologically rigorous, they are more numerous. The results of these studies indicate an overwhelmingly positive impact from POP.

Ewing et al. on The Criminalization of Immigration

Walter A. Ewing , Daniel E. Martinez and Rubén G. Rumbaut (American Immigration Council , George Washington University - Department of Sociology and University of California, Irvine - Department of Sociology) have posted The Criminalization of Immigration in the United States (Washington, DC: American Immigration Council Special Report, July 2015) on SSRN. Here is the abstract:

For more than a century, innumerable studies have confirmed two simple yet powerful truths about the relationship between immigration and crime: immigrants are less likely to commit serious crimes or be behind bars than the native-born, and high rates of immigration are associated with lower rates of violent crime and property crime. This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. The overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term. But immigration policy is often shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.

Seidman on Substitute Arguments in Constitutional Law

Louis Michael Seidman (Georgetown University Law Center) has posted Substitute Arguments in Constitutional Law on SSRN. Here is the abstract:

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime -– aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

Corn on Encrypted Data

Geoffrey S. Corn (South Texas College of Law) has posted Averting the Inherent Dangers of 'Going Dark': Why Congress Must Require a Locked Front Door to Encrypted Data on SSRN. Here is the abstract:

"Going dark" refers to the current practice of embedding cell devices with encryption without manufacturers retaining the keys to provide "front door" access to data. The problems associated with "going dark" are real; encryption technologies are making it increasingly easy for individual users to prevent even lawful government access to potentially vital information related to crimes or other national security threats. This evolution of individual encryption capabilities represents a fundamental distortion of the balance between government surveillance authority and individual liberty central to the Fourth Amendment. Because reasonable searches are lawful, the ability to conduct them should not be blocked by commercial encryption designed to be impenetrable. Congress should therefore exercise its authority to ensure that such searches are possible. Only such legislatively mandated "front door" access will ensure that, "the right of the people to be secure in their persons, houses, papers, and effects" will be protected not only "against unreasonable searches and seizures," but also against attacks by criminals and terrorists.

Tashbook on Living in a Vehicle

Linda Tashbook (University of Pittsburgh School of Law) has posted Living in a Vehicle (JURIST - Academic Commentary, June 26, 2014) on SSRN. Here is the abstract:

Nothing offends constitutional sensibilities quite like a local ordinance that sets police against poor people as a way of cleaning-up litter. Yet Section 85.02 [PDF]of the Los Angeles Municipal Code, which was enacted in 1983 and prohibits the use of a vehicle for living quarters, was lifted out of obscurity in 2010, years after having been enacted but not enforced, for the express purpose of responding to "the illegal dumping of trash and human waste on city streets that was endangering public health." Note that the dumping was already illegal. The litter ordinance or even the disorderly conduct ordinance, if necessary, could have been invoked against that behavior. But the city dredged up this old anti-homeless law because neighbors claimed that it was homeless folks who were dumping the trash and waste. And after enough homeless people were ticketed and jailed under the ordinance, they brought a lawsuit against the city. This article is about the Ninth Circuit’s artful handling of the appeal in that case.

Ferzan on Moore on Self Defense

Kimberly Kessler Ferzan (University of Virginia, School of Law) has posted Self Defense: Tell Me Moore (Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kimberly Kessler Ferzan and Stephen J. Morse eds., Oxford University Press), Forthcoming) on SSRN. Here is the abstract:

Although Michael Moore has theorized much of the criminal law, he has left self-defense virtually untouched. This festschrift chapter sets forth the current debates within self-defense theory. It then pieces together Moore’s views about these puzzles, arguing that Moore adopts a distributive view of self-defense whereby an innocent victim may redistribute harm to its culpable or innocent cause. The chapter then questions some of Moore’s claims, including how Moore grounds the self-defensive right against innocent aggressors and threats, whether self-defense is best viewed as a mechanism for harm distribution, and whether Moore needs something like the forfeiture concept that he rejects. The chapter concludes by demonstrating that Moore’s commitments in self-defense would justify a deterrence-based criminal law and by asking how this result can be reconciled with Moore’s retributivist commitments.

Lazaro on Criminal Financial Abuse of the Elderly

Christine Lazaro (St. John's University - School of Law) has posted Financial Abuse of the Elderly (PIABA 21st Annual Meeting Materials) on SSRN. Here is the abstract:

As of 2010, more than 10 percent of the population is aged 65 or older. Another 27% of the population falls into the “Baby Boomer” category, aged between 45 and 64. 

The financial health of the elderly is precarious. Almost half have no housing wealth and rely almost entirely on Social Security benefits for support. In addition, this group is disproportionately in poor health. Based on a replacement rate comparison, many of these households may be deemed to have been well-prepared for retirement, in the sense that their income in their final years was not substantially lower than their income in their late 50s or early 60s. 

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Weisburd & Telep on Place-Based Policing

David L. Weisburd and Cody W. Telep (Hebrew University of Jerusalem and George Mason University) have posted The Efficiency of Place-Based Policing on SSRN. Here is the abstract:

In this chapter we argue that place based policing is not only effective but is also an efficient approach for the police. We present a growing body of evidence that suggests that police efforts to combat crime at small places represent an opportunity to increase the efficiency of police strategies to control crime and disorder.

Solan & Dahmen on Legal Indeterminacy in the Spoken Word

Lawrence M. Solan and Silvia Dahmen (Brooklyn Law School and University of Cologne) have posted Legal Indeterminacy in the Spoken Word on SSRN. Here is the abstract:

A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over what was actually said in recorded speech. These disagreements are often reflected in disputes over how the interaction should be transcribed. We discuss many such examples, and explain them in terms of well-studied phonetic phenomena. These include our difficulty in segmenting speech into words (we speak without using a spacebar), and, in English, the fact that unstressed vowels, and some consonants, are reduced to the point of being indistinguishable, or even inaudible. For purposes of exposition, we compare cases involving the misperception of recorded speech in legal contexts with the misperception of song lyrics. Finally, we discuss our lack of memory for both the exact words spoken, and for human voices with which we are not sufficiently familiar. Our failure to recall exact words creates serious problems for the legal system with respect to prosecuting false statements made verbally, and enforcing oral contracts.