CrimProf Blog

"Top Trends in State Criminal Justice Reform, 2017"

Doug Berman at Sentencing Law & Policy links to and excerpts this report. From the excerpt:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2017.

"Radically Reforming America's Parole and Probation Systems"

From The Takeaway, via the NACDL news scan:

Approximately 4.7 million people are in the United States parole and probation system, more than double the number of incarcerated persons. While there has been a lot of research and advocacy surrounding prison reform, there has been much less research and discussion about parole and probation reform.

Today, Columbia University’s Justice Lab is releasing two reports focusing on a radical parole system overhaul and how reform can reduce the rate of recidivism and mass incarceration. One report is focused on national efforts, while the second is specifically looking at New York state and city.

McGreal on The Sentencing Guidelines' Effect on Fiduciary Duties

Paul E. McGreal (Creighton University) has posted Caremark in the Arc of Compliance History: Evolution of a Corporate Director's Fiduciary Duty to Oversee Compliance with the Law (Temple Law Review, Vol. 90, No. 1, 2018) on SSRN. Here is the abstract:

 

In the compliance and ethics field, In re Caremark International Incorporated Derivative Litigation is one of the few judicial decisions that professionals will know by name. In 1996, the Delaware Chancery Court’s Caremark decision was the first to recognize a director’s fiduciary duty to oversee a corporation’s compliance and ethics program, which instantly raised the visibility and urgency of compliance and ethics in the boardroom. And even though this duty was later confirmed by the Delaware Supreme Court in a case by another name, the compliance and ethics community still refers to the “Caremark duty” due to the original decision’s path-breaking analysis and impact. 

Two decades later, we can ask where Caremark falls within the ongoing history of compliance and ethics. This article does so by describing the parallel evolutions of the Caremark duty and another compliance and ethics landmark – the 1991 United States Sentencing Guidelines for organizations that provided sentencing leniency for organizations with an effective compliance and ethics program.

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Shima Baradaran Baughman (University of Utah School of Law) has published a book entitled The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System (Cambridge University Press). From the publisher's website:

Mass incarceration is one of the greatest social problems facing the United States today. America incarcerates a greater percentage of its population than any other country and is one of only two countries that requires arrested individuals to pay bail to be released from jail while awaiting trial. After arrest, the bail decision is the single most important cause of mass incarceration, yet this decision is often neglected since it is made in less than two minutes. Shima Baradaran Baughman draws on constitutional rights and new empirical research to show how we can reform bail in America. Tracing the history of bail, she demonstrates how it has become an oppressive tool of the courts that disadvantages minority and poor defendants and shows how we can reform bail to alleviate mass incarceration. By implementing these reforms, she argues, we can restore constitutional rights and release more defendants, while lowering crime 

Pickett et al. on Nonresponse Bias in Criminal Justice Research

Justin Pickett, Frank Cullen, Shawn D. Bushway, Ted Chiricos and Geoffrey Alpert (School of Criminal Justice, University at Albany, SUNY, University of Cincinnati, University at Albany, Florida State University and University of South Carolina) have posted The Response Rate Test: Nonresponse Bias and the Future of Survey Research in Criminology and Criminal Justice on SSRN. Here is the abstract:

 

There is a disciplinary assumption in our field that surveys with low response rates produce biased estimates, which leads to the use of simple rules for judging the quality of survey data. Surveys with “low” response rates fail this “response rate test” and become difficult to publish. Most of our research methods texts list these rules: e.g., “A response rate below 60% is a disaster, and even a 70% response rate is not much more than minimally acceptable”. Editors embrace this view, and often reject out of hand any study failing to reach this conventional standard. We argue that our field’s use of response rate rules in evaluating scholarship is based more on disciplinary custom than on survey science. In this paper, we describe the long-term downward trend in response rates and address confusion about nonresponse bias and its relation to response rates. Using Groves and Peytcheva’s (2008) meta-analytic data, we present evidence about the magnitude of the estimate- and study-level relationships between response rates and two different measures of nonresponse bias in univariate estimates. We then discuss several consequences of using the “response rate test” to judge data quality.

Bagaric et al. on Penalties for White-Collar Crime

Mirko Bagaric, Theo Alexander and Jenny Awad (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Deakin University, Geelong, Australia - Deakin Law School and Independent) have posted Submission to the Senate Economics References Committee: Penalties for White-Collar Crime on SSRN. Here is the abstract:

 

This submission was made to the Senate Economics References Committee in relation to its inquiry into penalties for white-collar crime, for which a public hearing was held on 6 December 2016. 

The purpose of the inquiry was to identify and deal with any inconsistencies and inadequacies of current criminal, civil and administrative penalties for corporate and financial misconduct or white-collar crime[.]

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McGowan on The Conflicts Paradox

David McGowan (University of San Diego School of Law) has posted The Criminal Conflicts Paradox on SSRN. Here is the abstract:

 

Prosecutors may seek to disqualify defense counsel based on conflicts among defendants. In doing so prosecutors do not assert rights of current, former, or prospective clients, as in the usual conflicts assertion. They instead assert other interests, the most concrete of which is the interest in not wasting resources in a retrial if a conviction is tainted by a conflict. 

Wheat v. United States sets a lenient standard for assessing such assertions. Judges may disqualify defense counsel even if the relevant parties are willing to waive conflicts that should be waivable as both a positive and normative matter. Wheat rested this standard on a set of concerns that are insufficient to justify its holding. As colloquy at argument showed, the Court was particularly concerned that defendants would not be held to waivers but instead would challenge on appeal even knowing and intelligent waivers of waivable conflicts.

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Jochnowitz on Norris on The Innocence Movement

Leona Deborah Jochnowitz (Northern Vermont University, Johnson State College) has posted Review and Concept Paper; Norris, Robert J., 2017; Exonerated: A History of the Innocence Movement on SSRN. Here is the abstract:

 

The most salient theme of the book is that the Innocence Movement represents one piece of a broader historical and contemporaneous social reform perspective in the pursuit of social and legal justice. The movement cannot be seen in isolation, but is historically part of the movements for social justice rising from the civil rights era and the Earl Warren procedural due process era at the US Supreme Court. And besides the history of the roots in social justice movements, the study of wrongful convictions reveals important contemporaneous issues of criminal justice reform, as well as broader social issues, beyond the “narrow confines of innocence.” “All of the factors that impact what we see in criminal justice also affect wrongful convictions; race class gender, politics, and moral emotions all impact the extent to which people receive justice.” And, further, a study of the legal system and justice itself is an important lens to view larger social problems. The interviewees confirm this. “…Criminal Justice will always tell you a good amount about what is wrong with your society, about what is wrong with your culture…” The issue of prison reform is made even more palatable and enhanced by the fact that in addition to suffering deplorable conditions and abuse in prison, it is happening to undeserving innocent persons. And, beyond prison issues, wrongful convictions allow you to see “fundamental issues like race, authority, and the relationship between citizen and state” more clearly… Debates over the war on drugs and mass incarceration …are intimately tied to conversations about race, class, families, and neighborhoods.” As evidence of the broad reach of the Innocence movement, Norris perceptively suggests that the innocence movement was invigorated by the tough on punishment policies, “punitive turn” because more persons were severely affected.

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Diamond on Practicing Indian Criminal Law

James D. Diamond (University of Arizona - Indigenous Peoples Law And Policy Program) has posted Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians (Criminal Justice, Volume 32, Number 4, Winter 2018) on SSRN. Here is the abstract:

 

As a result of changes in federal law, criminal defendants or defense attorneys are now more likely to find themselves appearing in American Indian tribal courts. This article summarizes the very knotty jurisdictional maze that surrounds criminal law and American Indians or Indian tribes. It explains recent changes in the handling of domestic violence cases in tribal courts following 2013 congressional action and the enhanced enforcement now occurring by tribal police and prosecutors. Finally, the article offers general advice to lawyers not familiar with practicing law in tribal courts.

"In Supporting the Gymnastics Victims, Judge Aquilina Got It Right"

Paul Cassell has this post at The Volokh Conspiracy. In part:

Another important purpose of a victim impact statement is driving home to the defendant the full consequences of what he has done. It is possible that Nassar's victims were able to cause him to appreciate, at least to some small degree, what he had done to these women. Early in the sentencing process he complained to the judge about being forced to listen to all the victims, but by the end he was apologizing and claiming to have been shaken to his core.

Yet another important purpose of a victim impact statement has been often overlooked in some of the critical commentary. Apart from any impact on the sentencing process or the defendant himself, a victim impact statement can have important therapeutic benefits for victims.

 

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Daredevil: Legal (and Moral?) Vigilante Stephen E. Henderson University of Oklahoma - College of Law Date Posted: 30 Nov 2017 [2nd last week]	89
2.	Backdoor Man: A Radiograph of Computer Source Code Theft Cases Ioana Vasiu and Lucian Vasiu Babes-Bolyai University - Faculty of Law and Independent Date Posted: 02 Jan 2018 [3rd last week]	74
3.	The 'New' District Court Activism in Criminal Justice Reform Jessica Roth Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 17 Jan 2018 [new to top ten]	69
4.	Mental Health Courts and Sentencing Disparities E. Lea Johnston and Conor Flynn University of Florida - Levin College of Law and University of Florida - Levin College of Law Date Posted: 11 Jan 2018 [new to top ten]	66
5.	Moral and Criminal Responsibility: Answering and Refusing to Answer R. A. Duff University of Stirling - Department of Philosophy Date Posted: 18 Dec 2017 [4th last week]	61
6.	Balancing Section 230 and Anti-Sex Trafficking Initiatives Eric Goldman Santa Clara University - School of Law Date Posted: 01 Dec 2017 [5th last week]	59
7.	The Elusive Object of Punishment Gabriel Mendlow University of Michigan Law School Date Posted: 11 Dec 2017 [7th last week]	51
8.	Why Rape Should Be a Federal Crime Donald A. Dripps University of San Diego School of Law Date Posted: 08 Jan 2018 [8th last week]	51
9.	Privacy, Voyeurism, and Statutory Interpretation Michael Plaxton College of Law, University of Saskatchewan Date Posted: 18 Jan 2018 [new to top ten]	48
10.	Women, Crime and Character in Twentieth Century Law and Literature: In Search of the Modern Moll Flanders Nicola Lacey London School of Economics - Law Department Date Posted: 18 Jan 2018 [new to top ten]	47

Yacoub on Influences on Modern Criminal Law

Akmal Yacoub (Ohio State University (OSU), Michael E. Moritz College of Law, Students) has posted A History of Law and Its Influence on Modern Criminal Law of Common and Civil Legal Systems on SSRN. Here is the abstract:

 

Since the beginning of time law has evolved and developed, impacting all aspects of every legal system in the world today. Mosaic law, Ur-Nammu, Hammurabi, and Pharaonic laws have been instrumental in the formation of today’s legal systems. After a discussion of relevant history, a comparison will be made between the common law systems of the USA, and civil law system of Egypt to illustrate how early law has influenced the bedrock of justice and its application in modern criminal law of two of the world’s major legal systems.

Kahn-Fogel on Legislation and the Fourth Amendment

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted The Benefits of Using Investigative Legislation to Interpret the Fourth Amendment: A Response to Orin Kerr on SSRN. Here is the abstract:

 

In a recent article, Professor Orin Kerr examines three approaches courts have taken in determining the consequences of privacy legislation for interpreting the Fourth Amendment. Some courts have used an “influence” model, drawing on legislative wisdom to delineate the contours of Fourth Amendment protection. Other courts have used a “displacement” approach; those courts rely on the existence of privacy legislation as a basis for denying constitutional protection, thus preserving the institutional advantages of regulating searches and seizures through thoughtful statutory directives over the blunt instrument of the Fourth Amendment. Finally, courts have sometimes used an “independence” model, asserting that privacy legislation is irrelevant to Fourth Amendment analysis. Professor Kerr argues that privacy legislation provides a poor indication of the societal values that should arguably inform Fourth Amendment interpretation, that implementation of an influence or displacement approach would entail considerable logistical difficulty, and that the influence and displacement models incentivize legislative and executive gamesmanship that would compromise the benefits of having a dual regime of constitutional and statutory regulation of government searches and seizures. Consequently, he favors the independence model. Professor Kerr raises critical issues that any advocate of influence or displacement must address. Nonetheless, I believe he underestimates the benefits and overestimates the costs of using privacy legislation as a guide to Fourth Amendment protection, particularly under a soft influence model that would rely only on a constellation of statutes reflecting broad national consensus, and only with regard to the question of whether government conduct constitutes a Fourth Amendment search.

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Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Assessing Risk Assessment in Action Megan Stevenson George Mason University - Antonin Scalia Law School, Faculty Date Posted: 29 Aug 2017	452
2.	The Unconstitutionality of Criminal Jury Selection Brittany Deitch Harvard Law School Date Posted: 08 Dec 2017 [3rd last week]	182
3.	Rethinking the Boundaries of 'Criminal Justice' (Book Review) Benjamin Levin University of Colorado Law School Date Posted: 16 Dec 2017 [5th last week]	161
4.	Remorse Bias Eve Hanan University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 04 Dec 2017 [6th last week]	138
5.	Who Killed Habeas Corpus? Lynn Adelman U.S. District Court - Eastern District of WI Date Posted: 16 Jan 2018 [new to top ten]	113
6.	Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis? Riana Pfefferkorn Stanford University - Stanford Law School Center for Internet and Society Date Posted: 09 Jan 2018 [10th last week]	105
7.	Graduating Economic Sanctions According to Ability to Pay Beth A. Colgan University of California, Los Angeles (UCLA) - School of Law Date Posted: 05 Dec 2017	85
8.	Cops, Docs, and Code: A Dialogue between Big Data in Health Care and Predictive Policing I. Glenn Cohen and Harry Graver Harvard Law School and Harvard University, Law School, Students Date Posted: 05 Jan 2018 [9th last week]	84
9.	How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It David H. Kaye Pennsylvania State University, Penn State Law Date Posted: 12 Dec 2017 [8th last week]	70
10.	The 'New' District Court Activism in Criminal Justice Reform Jessica Roth Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 17 Jan 2018 [new to top ten]	68

Pope on Medically Assisted Suicide

Thaddeus Mason Pope (Mitchell Hamline School of Law) has posted Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures (Forthcoming in New Mexico Law Review) on SSRN. Here is the abstract:

 

Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.

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Miller on Victims' Duties to Resist Injustice

Eric J. Miller (Loyola Law School Los Angeles) has posted It Gets Worse Before it Gets Better: Victims' Duties to Resist Injustice (The Journal of Things We Like (Lots) Oct. 4, 2017) on SSRN. Here is the abstract:

 

This short article is a review of Ashwini Vasanthakumar, Epistemic Privilege and Victims’ Duties to Resist their Oppression, J. Applied Phil. (forthcoming).

The criminal justice system has sought to promote victims’ rights, to provide the victims of crime meaningful opportunities to participate in the prosecution of cases. But in promoting victims’ rights, the criminal justice system sometimes loses track of victim’s duties. In seeking to shield victims from further physical or psychological harm from the criminal injuries visited upon them, we sometimes fail to press victims to step forward to resist those who would wrong them.

Lundberg on When the Innocent Plead Guilty

Alex Lundberg (West Virginia University - Department of Economics) has posted When Do the Innocent Plead Guilty? on SSRN. Here is the abstract:

 

The implications of a strategic model of plea bargaining are threefold. First, prosecutors induce the innocent to plead guilty when trial costs are high. Second, plea bargaining unequivocally increases wrongful convictions. Lastly, police share an important role in minimizing wrongful convictions. Law enforcement cannot rely on prosecutors to sort the guilty from the innocent.

Som on The Insanity Defense

Eric M Som (City University London) has posted In Defense of the Insanity Defense: Why Every Jurisdiction Should Provide an Insanity Defense on SSRN. Here is the abstract:

 

This paper sets out the case for providing an independent insanity defense in every jurisdiction. A common objection to this practice is that the absence of an insanity defense does not prohibit a defendant from introducing evidence of his mental illness. This objection is misconceived. The justification for providing an independent insanity defense in every jurisdiction does not lie solely in issues associated with whether a defendant can introduce evidence about his mental illness. Instead, it lies within the interpretive theory of the insanity defense. In criminal law, both actors and observers create and interpret meaning. The criminal justice system relies on the interpretive perspectives from participants such as victims, witnesses, defendants, prosecuting attorneys, defense attorneys, and trial and appellate judges in creating and interpreting meaning. Although the jury makes the final, authoritative interpretation of a defendant’s conduct, each of these perspectives play a crucial role in shaping this final interpretation. Accordingly, jurisdictions that do not offer an independent insanity defense fail to incorporate a defendant’s perspective adequately into the final, authoritative interpretation, making such an interpretation defective.

Posch on Causal Mediation Analysis and Procedural Justice Policing

Krisztián Pósch (London School of Economics & Political Science (LSE) - Department of Methodology) has posted Prying Open the Black Box of Causality: A Causal Mediation Analysis Test of Procedural Justice Policing on SSRN. Here is the abstract:

 

This paper reviews causal mediation analysis as a method for estimating and assessing direct and indirect effects in experimental criminology and testing procedural justice theory by examining the extent to which procedural justice mediates the impact of contact with the police on various outcomes. Causal mediation analysis permits one to better interpret data from a field experiment that has suffered from a particular type of implementation failure. Data from a block- randomised controlled trial of procedural justice policing (the Scottish Community Engagement Trial) was analysed. All constructs were measured using surveys distributed during roadside police checks. The treatment implementation was assessed by analysing the treatment effect consistency and heterogeneity. Causal mediation analysis and sensitivity analysis were used to assess the mediating role of procedural justice. The results suggest that the treatment effect was consistent and fairly homogeneous, indicating that the systematic variation in the study is attributable to the design. Moreover, procedural justice acts as a mediator channelling the treatment’s effect towards normative alignment (NIE=-0.207), duty to obey (NIE=-0.153), sense of power (NIE=-0.078), and social identity (NIE=-0.052), all of which are moderately robust to unmeasured confounding. The NIEs for risk of sanction and personal morality were highly sensitive, while for coerced obligation and sense of power they were non-significant. This paper shows that causal mediation analysis is a versatile tool that can salvage experiments with systematic yet ambiguous treatment effects by allowing researchers to “pry open” the black box of causality. Most of the theoretical propositions of procedural justice policing were supported. Future studies are needed with more discernible causal mediation effects.

Lacey on Women, Crime and Character in Law and Literature

Nicola Lacey (London School of Economics - Law Department) has posted Women, Crime and Character in Twentieth Century Law and Literature: In Search of the Modern Moll Flanders on SSRN. Here is the abstract:

 

The twentieth century saw decisive changes in women’s legal, social, economic and political position. But how far have these changes been reflected in women’s position as subjects of criminalisation in the courts, in legal thought or in literary fiction? This paper takes up the story of the gradual marginalisation of criminal women in both legal and literary history, asking whether a criminal heroine such as Moll Flanders (1722) is thinkable again, and what this can tell us about conceptions of women as subjects of criminal law. How far do the conceptions of, and dilemmas about, female subjectivity, agency, capacity and character which emerge successively in 20th Century literary culture reflect and illuminate the relevant patterns and debates in criminal law and philosophy?