Saturday, April 30, 2016
This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due less to an escalation of rape culture than to a new found anti-rape culture ― a distinctly feminist rape intolerance. Feminist political activism is normally ground for progressive rejoicing and, indeed, society should be rape intolerant. However, here, one might wonder whether feminism has reincarnated as a single-issue movement that centers on punishing sex ranging from violent to ambiguous and embraces illiberal positions and institutions. The essay focuses on the costs of anti-rape culture’s construction of the status quo as one in which at least a quarter of college women will be brutalized by a sexual predator and left traumatized, possibly for life. In addition to creating the risk that the sex that college women inevitably have is a minefield of mental distress, the rhetorical strategy has other costs, including punitive over-correction, bureaucratic management of students stripped of their subjectivity, and speech restrictions. In the end, the essay counsels reformers to be cautious lest their commendable concern for safety and equality creates a culture in which drunken sex is ruinous to women, administrative power distributes burdens randomly, or worse, to marginalized men, and silence is the norm in an area desperate for open discussion.
Friday, April 29, 2016
Jeremy I. Levitt (Florida A&M University College of Law) has posted 'Fuck Your Breath': Black Men and Youth, State Violence, and Human Rights in the 21st Century (Washington University Journal of Law and Policy, Vol. 49, 2015) on SSRN. Here is the abstract:
I abhor unintelligent and misguided profanity. The title of this article, “Fuck Your Breath,” is not my own; rather it derives from the callous and wicked final words spoken by Tulsa deputy police officer Joseph Byars to Eric Harris, an unarmed Black man, after the former was alleged to have been accidentally but fatally shot and gasping for breath. See infra note 44 and accompanying text.
The purpose of this essay is to confront the remorseless and pathological killing of Black people, particularly men and youth, by police agencies across the United States. In doing so, it assesses the human rights implications and global responses to anti-Black violence, highlights probable implications of state violence and offers tentative proposals.
SpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Sonic Jihad — Muslim Hip Hop in the Age of Mass Incarceration (11 Florida Intl. L. Rev. 201 (2015)) on SSRN. Here is the abstract:
This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and revenge, painted within a cosmic worldview that likens present conditions to the slave system that first brought African Muslims to America as slaves. The discursive war challenges the notion that the most radical voices in Muslim America are to be found in mosques or other Muslim gatherings. Such a position must contend with this sonic jihad and its aural assault against prisons. These artists arguably represent the most radical Islamic discourse in America today that undoubtedly ranks Muslim rappers among the most cutting-edge critics of mass incarceration.
Elizabeth Shrader has posted Methodologies to Measure the Gender Dimensions of Crime and Violence on SSRN. Here is the abstract:
The prevalence rate of violence - as measured by such indicators as domestic assault, homicide, and crime victimization - varies widely locally and worldwide, suggesting that violent behavior is modifiable and preventable. Developing standardized, accurate ways to measure and map violence across communities and countries is the first step toward developing programs to prevent it.
Recent studies have used homicide rates, police statistics, and crime victimization surveys to pinpoint violent areas. Shrader argues that these useful measures of crime and violence underestimate certain types of violence (especially noneconomic violence) and key dimensions of violence (especially age and gender).
Why incentive contracts and independent investigations may not be the perfect solution to the problem of bureaucratic corruption.
Agency theory has had little to say about the control of bureaucratic corruption, perhaps the greatest agency problem that exists. Prendergast considers the role of incentive contracting in reducing corruption through the use of independent investigations - a common way to monitor corruption.
In simple settings, bureaucratic corruption can be suppressed by rewarding and penalizing bureaucrats, depending on the independent investigators' findings. But Prendergast shows that incentive contracts can change behavior in both undesirable and beneficial ways. He analyzes three possible harmful behavioral responses to investigations.
Thursday, April 28, 2016
Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis - School of Law and Case Western Reserve University School of Law) have posted ABA Approves Researching Jurors' Public Presence on the Internet (Criminal Justice, Vol. 29, No. 3 (2014)) on SSRN. Here is the abstract:
Electronic devices and their ubiquity, along with the Internet and social media, create a host of challenges for the jury system. One is the risk that jurors may communicate improperly during a trial. Another is the risk that jurors may attempt to do their own factual or legal “research” about a case, in effect doing an end run around the limitations established by the rules of evidence. Lawyers using the Internet to find information about potential jurors during jury selection pose an additional challenge. Competency may well require a lawyer to do such electronic research. But at the same time, a lawyer is prohibited from communicating with or influencing a juror outside the courtroom. Ethics authorities in a number of states have addressed these issues in recent years, and the ABA has recently weighed in on them as well.
The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion explaining that, unless limited by law or a court order, a lawyer may review a juror’s or potential juror’s background and presence on websites and social media.
Jennifer Arlen (New York University School of Law) has posted Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed Through Deferred Prosecution Agreements (The Journal of Legal Analysis, Forthcoming) on SSRN. Here is the abstract:
U.S. corporate criminal enforcement policy encourages prosecutors to enter into deferred and non-prosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors’ use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by both limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on either the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors’ offices is inconsistent with the rule of law.
Caroline Cooper (American University - School of Public Affairs - Justice, Law & Society) has posted Drug Courts - Just the Beginning: How to Get Other Areas of Public Policy in Sync? Addressing Continuing Collateral Consequences for Drug Offenders on SSRN. Here is the abstract:
This article is an update to an earlier article, prepared in 2003, examining five areas of public policy in the U.S., unconnected to criminal justice, that imposed significant – and generally lifetime – sanctions on drug court graduates regardless of their successful completion of a drug court program and termination from criminal justice supervision. At that time, the extensive research corroborating the effectiveness of drug courts in reducing drug use, recidivism and promoting long term recovery was just beginning to be disseminated, along with scientific findings relating to the neurobiology of addiction, its effects on the brain and cognitive functioning – all confirming that drug use was a generally a symptom of a chronic disease of the brain – far more than a “behavioral” issue and/or moral failing. Given these extensive research findings, as well as over a decade of drug court experience, an update of this article was prepared in 2015, to document progress made in reducing these areas of stigma – come to be subsequently referred to as “collateral consequences” – in light of the tremendous growth of drug courts since the article was first published in 2003, both in the U.S. and abroad, the widely documented effectiveness of these programs in stemming continued drug use and crime, and the growing body of research documenting the neuro-biological and physiological aspects of the disease of addiction for which treatment has proven effective and incarceration in and of itself has been increasingly documented to be counter-effective.
Richard W. Wright , Florence G'sell and Samuel Ferey (Illinois Institute of Technology - Chicago-Kent College of Law , University of Lorraine and University of Lorraine) have posted Introduction to Causation, Liability and Apportionment: Comparative Interdisciplinary Perspectives (Chicago-Kent Law Review, Vol. 91, No. 2, 2016) on SSRN. Here is the abstract:
This Introduction summarizes the discussions of causation, liability and apportionment from philosophical, legal and economic perspectives by leading authors from various common and civil law jurisdictions. The papers, which are being published in English in the Chicago-Kent Law Review and in French by Bruylant, are based on presentations at an international conference in September 2014 before an audience of judges, academics and practicing lawyers in the Grand Chambre of the Cour de Cassation (the highest court in France for civil and criminal cases) and at the University of Panthéon-Assas (Paris 2), The organizers of and participants in the Paris conference were especially appreciative of and honored by the agreement of the Premier Président of the Cour de Cassation, Bertrand Louvel, to provide a welcoming speech to open the conference and to have it published in the conference proceedings. Unusually and perhaps uniquely, his speech contains significant comments on the Cour de Cassation's treatment of these issues.
Wednesday, April 27, 2016
Mark Cammack (Southwestern Law School) has posted The Punishment of Islamic Sex Crimes in a Modern Legal System: The Islamic Qanun of Aceh, Indonesia on SSRN. Here is the abstract:
This paper looks at the enactment and enforcement of recent criminal legislation involving sexual morality in the Indonesian province of Aceh. Public discussions of Islamic law relating to crimes focus almost exclusively on the question whether Islamic criminal law shall be enforced and give little if any attention to the question what Islamic criminal law is. This focus on whether rather than what reflects widely assumptions about the nature of Islamic law. Little attention is given to questions about the content or procedures of Islamic criminal law because it is assumed that the law is a fixed and definite essence, and that programs for the implementation of Islamic criminal law simply activate the machinery for the enforcement of the law. An examination of Islamic criminal law in Aceh makes clear that these assumptions are mistaken. The laws enacted in Aceh reflect the influence of a variety of contemporary and historical factors. The laws manifest an evident concern with preserving continuity with the historical tradition of Islamic law. But the legislation also shows the imprint of contemporary influences. The drafters were clearly sensitive to the conditions and concerns of contemporary Aceh and the relevance of modern ideas and institutions to Acehnese society.
Daniel Pascoe (City University of Hong Kong (CityUHK) - School of Law) has posted Researching the Death Penalty in Closed or Partially-Closed Criminal Justice Systems (Mary Bosworth, Carolyn Hoyle and Lucia Zedner (eds) 2016, Changing Contours of Criminal Justice, Oxford University Press, Oxford, Forthcoming) on SSRN. Here is the abstract:
For comparative death penalty scholarship to move forward and to continue to contribute meaningfully to the global abolitionist movement in the 21st century, scholars must learn to work with decreasing amounts of official data, shifting their focus away from the United States and Japan to less well-documented sites where death penalty information is difficult to come by. In the past, such jurisdictions have commonly been cast into the ‘too hard basket’. Today they are imperative targets for our study, in order to further expose these stubborn holdouts on the death penalty to international scrutiny. Yet the methodological problems in covering them are significant.
Agathon Fric has posted Reasonableness as Proportionality: Towards a Better Constructive Interpretation of the Law on Searching Computers in Canada (21 Appeal: Review of Current Law and Law Reform 59, 2016) on SSRN. Here is the abstract:
Assessing reasonableness under section 8 of the Canadian Charter of Rights and Freedoms inherently calls upon courts to balance the interests of the state with those of the individual. However, existing common law jurisprudence governing the reasonableness of searching the contents of Canadians’ personal electronic devices does not strike an appropriate balance between the individual’s reasonable expectation of privacy and the state’s interest in intruding upon that expectation to pursue the objectives of law enforcement. Most notably, the Supreme Court of Canada’s majority judgment in R v Fearon does not sit comfortably alongside fundamental aspects of the legal record, contrary to legal philosopher Ronald Dworkin’s theory of law as integrity. This suggests that a better constructive interpretation of the law is needed in order to determine the reasonableness of computer searches at customs, for instance by referring to how reasonableness is assessed in other constitutional contexts. Courts ought to apply a more robust proportionality analysis, like that developed under section 1 of the Charter, in order to demonstrate integrity and to make the law on search and seizure of electronic devices “the best that it can be.”
Andy Wang has posted Deserving of Life: A Mitigating Factor Approach to the Narrowing Mandate in Capital Sentencing (Harvard Journal on Legislation, Vol. 52, No. 2, 2015) on SSRN. Here is the abstract:
This article advocates for a new approach to death penalty sentencing based not “aggravating circumstances” of the offense or offender, but “mitigating circumstances” sufficient to eliminate the offender from death penalty eligibility.
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court put a stop to capital punishment on the grounds that the arbitrary manner in which it was then applied violated the Eighth Amendment. A year later in Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court allowed the death penalty to resume, but on the condition that it be applied according to the “narrowing mandate.” Under the mandate, the death penalty must be applied consistently and narrowly in order for it to be constitutional. In response to this mandate, state legislatures developed “aggravating factor” statutes to select which offenders could receive death as a punishment: statutes that sought to narrow the application of the death penalty to a consistent group of offenders, that is, those offenders that were particularly “bad”. Nonetheless, four decades of experience with aggravating factor statutes show that approaching the narrowing mandate from the perspective of who most deserves to die is intrinsically flawed.
Caitlin M. Plummer and Imran J. Syed (Wisconsin Innocence Project and Michigan Innocence Clinic) have posted Fighting Law with Science: The Challenging Path to Post-Conviction Relief in Cases that Arise During Periods of Shifts in Science (41 Vt. L. Rev. ___ ( 2016), Forthcoming) on SSRN. Here is the abstract:
In a recent article, we explored in depth the percolation delays in the law that follow shifts in science, and the significant consequences of those delays in the forensic science realm especially. While relevant scientific communities may have already come to repudiate certain forensic science techniques, that knowledge can take a period of years, even decades, to percolate down into the relevant legal communities - which causes errors in court to continue, even monumental errors of wrongful convictions in criminal cases. How to challenge and undo those errors, once they are exposed, is a thorny question that we previously set aside. We now seek to complete the circle by exploring the remedies available to defendants whose cases arose during the all-important period of percolation. Difficulties arise in post-conviction litigation because of the very nature of the error being challenged: The errors occurred in a cusp period of change, and whether they could or should have been discovered and addressed previously is a difficult supposition that courts require litigants to address. This article looks first at the many legal claims that defendants might make in court on collateral appeals, including some we previously thought inapplicable in the shifted-science realm. Although this article discusses legal remedies in detail we also note that true systemic reform and relief cannot come from the courts alone. Therefore the article also addresses what other governmental actors can do to effect meaningful reform overall, and efficient relief for individual defendants, noting commendable efforts already underway in various parts of the country by prosecutor offices, executive commissions, law enforcement agencies, and legislative bodies.
Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and, accordingly, could affect “the value” of nonmonetary sanctions — chiefly, imprisonment and capital punishment. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishment, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the United States has increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. At the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
Criticisms of the ALI’s draft sexual assault provisions, including a statement from the National Association of Criminal Defense Lawyers, have argued that the draft “encourages a shifting of the burden of proof to the accused.” In their barest form, these criticisms are susceptible to at least three readings. Two of them are not compelling, but the third is. In this post, I try to sketch these varying views. I have criticized the draft previously, here, here, and here. I draw from some of those criticisms in this post, but I do not seek here to repeat my prior criticisms in full.
One reading is that the ALI draft fails to honor the constitutional requirement of proof beyond a reasonable doubt on every element of a criminal offense. That criticism would be inapt, partly because the constitutional requirement does less than conventional wisdom might suggest in assuring the fairness of the criminal process.
Tuesday, April 26, 2016
Seth Mayer and Italia Patti (Auburn University and West Virginia University College of Law) have posted Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.
This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Policing Predictive Policing (Washington University Law Review, Vol. 94, Forthcoming) on SSRN. Here is the abstract:
Predictive policing is sweeping the nation, promising the holy grail of policing – preventing crime before it happens. Police have embraced predictive analytics and data-driven metrics to improve law enforcement tactics, practice, and strategy. Predictive “hot spots” become targets for intensive police surveillance. Targeted “hot people” become suspects. In big cities and small towns, data-based predictions drive police patrol schedules. Risk assessment algorithms target suspicious individuals. Increased data collection fuels a growing feedback loop requiring more robust data crunching systems.
All of these predictive innovations share one thing in common: a belief that crime can be understood by identifying and analyzing crime patterns and risk factors. The insight that risk can be isolated, analyzed, and forecast to deter criminal behavior has led to the creation of a new industry of predictive policing companies. Small start-ups and huge technology corporations are contracting with cities to provide predictive services. New products designed to study crime, social media patterns, and other clues are in development. Federal grants are financing pilot projects. Cities are investing millions in unproven predictive software. And, at this particular moment in American history with a heightened awareness of racial disparity in the criminal justice system, predictive policing has been promoted as a data-driven, race-neutral, objective solution to the failed policing policies of the past.
W. David Ball (Santa Clara School of Law) has posted Pay-for-Performance in Prison: Using Healthcare Economics to Improve Criminal Justice on SSRN. Here is the abstract:
For much of the last seventy-plus years, healthcare providers in the United States have been paid under the fee-for-service system, where providers are reimbursed for procedures performed, not outcomes obtained. Providers, insurers, and consumers are motivated by different individual and organizational incentives; costs and burdens of patient care are shifted from one part of the system to another. The result has been a system that combines exploding costs without concomitant increases in quality. Healthcare economists and policymakers have reacted by proposing a number of policies designed to reign in costs without sacrificing quality. One approach is to focus on the ultimate goal — improving health outcomes — by measuring those outcomes and reconfiguring incentives and structures to deliver healthcare in ways that are both efficacious and efficient. One particular strategy is pay for performance, under which providers are paid to improve health by whatever medically-appropriate method they choose. This means providers are no longer paid for simply doing a given “something” but, rather, are paid for doing “something effective.”
In this Article, I argue that the criminal justice system is similarly fragmented, expensive, and inefficient, marked by many of the same distorted individual and organizational incentives that have plagued health care. Most significantly, in all but a handful of jurisdictions, states wholly subsidize commitments to prison — the fee-for-service model of doing “something” — without tying any of these subsidies to outcomes obtained in prison. This means prison is paid for even if it is neither effective nor efficient. These similarities with the healthcare system suggest that an outcome-oriented, pay-for-performance framework borrowed from healthcare economics might, if applied to criminal justice, improve its efficacy and efficiency. I envision this Article as the first of several applying healthcare economics to criminal justice. It will focus on the similarities of the two systems, the ways in which an outcome orientation might provide a useful framework for controlling costs without making quality subservient, and the suggestion that we begin considering sentencing choices within that framework.
Monday, April 25, 2016
Bill Ong Hing (University of San Francisco - School of Law) has posted From Ferguson to Palestine: Disrupting Race-Based Policing (Howard Law Journal, Vol. 59, 2016 (Forthcoming)) on SSRN. Here is the abstract:
Since Michael Brown’s killing, “Ferguson” has become the battle cry of embattled black communities targeted by over-policing and activists protesting racist policing. The battle cry has been all too important, unfortunately, as more than a dozen other police on black shootings occurred over the next several months. The story has become all too familiar. A traffic stop or a call about someone acting out. The target might answer respectfully, blandly, or with some attitude. He or she might sprint to escape, sit still, or glance away with attitude. Whatever the trigger, the cop’s violent reaction can end with another unarmed black man or woman shot in the head.
This article is based on an understanding that police in many parts of the country often are guilty of abusing their authority in a racist manner. The over-policing of African American communities in many respects can be traced to the “broken windows” model of policing. The model focuses on the importance of disorder (e.g. broken windows) in generating and sustaining more serious crime. The problem is that this approach has evolved into a zero-tolerance mentality in the cop-on-the-street, manifested in constant harassment of young black males.