CrimProf Blog

Boo! My scary new manuscript on knowledge and belief as criminal mental states

Nothing is more frightening than a manuscript the first sentence of which includes the word "undertheorized." So if you're looking for a Halloween scare, take a look at the manuscript I just posted on SSRN, Knowledge and Belief as Criminal Law Mental States (forthcoming, Ohio State Journal of Criminal Law). On the less scary side, it isn't very long, and I still have time to make changes, so you have a chance to save others the terror of investing energy in something that is wrong. I offer some descriptive and normative ideas about the prevalence of "knowledge" and "belief" not only in grading provisions, but also as the dividing line between criminal and noncriminal conduct. 

Koenig & Schindler on Impulse Purchases, Gun Ownership and Homicides

Christoph Koenig and David Schindler (University of Bristol and Tilburg University) have posted Impulse Purchases, Gun Ownership and Homicides: Evidence from a Firearm Demand Shock on SSRN. Here is the abstract:

 

Do firearm purchase delay laws reduce aggregate homicide levels? Using quasi-experimental evidence from a 6-month countrywide gun demand shock starting in late 2012, we show that U.S. states with legislation preventing immediate handgun purchases experienced smaller increases in handgun sales. Our findings are hard to reconcile with entirely rational consumers, but suggest that gun buyers behave time-inconsistently. In a second step, we demonstrate that states with purchase delays also witnessed 3% lower homicide rates during the same period compared to states allowing instant handgun access. We report suggestive evidence that lower handgun sales primarily reduced impulsive assaults and domestic violence.

Fissell on Nondelegation and Crimnal Law

Brenner Fissell (Hofstra University - Maurice A. Deane School of Law) has posted Nondelegation and Criminal Law on SSRN. Here is the abstract:

 

The nondelegation doctrine prohibits a legislature from delegating its power to an executive entity, yet it is famously underenforced—even when the delegation results in the functional creation of criminal offenses. However, this term the Supreme Court will consider whether the doctrine applies differently in this context. While the value of the nondelegation doctrine more generally has been the subject of extensive scholarly attention, its specific application to criminal law has received very little. This Article helps to fill that gap, and concludes that delegations resulting in criminalization should be unlawful—both at the federal and state levels. Applying the insights of prominent punishment theories, this Article argues that because criminal law must publicly express condemnation from the community, criminal offenses must be created by a democratically elected institution and not a bureaucratically controlled agency. Moreover, because a community will frequently aim to use the condemnatory feature of criminal law to address problems not resolvable by rational expertise, but instead by a majority’s choice of one value over a competing value, expert agencies lack the legitimacy and competence to make such choices.

Bellin on The Power of Prosecutors

Jeffrey Bellin (William & Mary Law School) has posted The Power of Prosecutors (New York University Law Review, Vol. 94 (2019 Forthcoming)) on SSRN. Here is the abstract:

One of the predominant themes in the criminal justice literature is that prosecutors, not legislators, judges, or police, dominate the justice system. Over 75 years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors, not judges, police, or legislators, “are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious echo chamber enabled by a puzzling lack of dissent. With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

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"Mass incarceration isn’t always the issue. Uneven incarceration is."

Doug Berman has this post at Sentencing Law & Policy, excerpting and commenting on a piece in the Washington Post. From his comment:

I commend this commentary for noting that "we are doing better" on crime and punishment in the US, while also noting that we also still have way too much violent crime and way too much prison punishment in our nation.  These realities should call for, especially after the last few days of hate-fueled crimes, some real soul-searching about what makes America less than great on these metrics.  I certainly have some thoughts on some factors that I think fuel these realities (e.g., disparities, drugs, guns, leadership), but what I think is most important is that any and everyone concerned about either crime or punishment give real thought to the progress we are making and how far we still have to go even when merely compared to any comparable nation. 

"How Jeff Sessions Is Undermining Trump’s Prison Reform Agenda"

From The Marshall Project, via the NACDL news scan:

According to inmates, halfway house staff and industry officials, scores of beds lie empty, with some estimates of at least 1,000 vacant spaces. They remain unused due to a series of decisions that have sharply reduced the number of prisoners sent to halfway houses. And home confinement, a federal arrangement similar to house arrest that allows prisoners to complete their sentences with minimal supervision, is being even more drastically curtailed.

. . .

Abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime. As a senator from Alabama, Sessions led the charge two years ago against a bill to ease sentences, and as attorney general he has instructed prosecutors to be more aggressive in charging defendants.

Morse on Neuroscience and Law

Stephen Morse (University of Pennsylvania Law School) has posted The Promise of Neuroscience for Law: Hope or Hype? (In The Palgrave Handbook of Philosophy and Public Policy 77-96 (David Boonin ed., 2018)) on SSRN. Here is the abstract:

 

This chapter addresses the potential contributions of neuroscience to legal policy in general and criminal justice in particular. The central question is whether neuroscience is relevant to legal policy. The chapter begins with speculation about the source of claims for the positive influence of neuroscience. It then turns to the scientific status of behavioral neuroscience. The next section considers the two radical challenges to current policies that neuroscience allegedly poses: determinism and the death of agency. The penultimate section addresses the question of the specific relevance of neuroscience to legal doctrine, practice and institutions. The final section points to some areas warranting modest optimism. The general conclusion, however, is that neuroscience is scarcely useful at present but may become more relevant as the science progresses.

Schiavone on Using Police Dogs to Apprehend Suspects

Ann Schiavone (Duquesne University School of Law) has posted K-9 Catch-22: The Impossible Dilemma of Using Police Dogs in Apprehension of Suspects (University of Pittsburgh Law Review, Vol. 80, No. 3, 2018) on SSRN. Here is the abstract:

In the past several years, the city of Pittsburgh, Pennsylvania has seen two canine police dogs (K-9s) killed in the line of duty, Rocco in January 2014, and Aren in January of 2016. Both were killed by stab wounds while attempting to apprehend suspects. The man who killed Rocco received significant jail for stabbing and killing the dog, while the man who killed Aren was fatally shot as a direct result of his actions toward the canine. While Rocco was vocally celebrated in the community, and sympathy primarily focused on the canine, the deaths of Aren and the suspect who killed him, Brian Kelley, Jr., led to a very different response. In the aftermath of the 2016 incident, there was significant vocal outcry from a variety of advocates (for both humans and animals) concerning the injustice of using K-9 officers to apprehend suspects and calling for a ban on such practices. Certainly, Pittsburgh’s experiences are not unique, although they present a vivid backdrop for the discussion of whether K-9s should be used for apprehension of suspects and under what circumstances.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Robot Criminals Ying Hu Yale University, Law School Date Posted: 26 Aug 2018 [2nd last week]	183
2.	Lies, Deceit, and Bullshit in Law Lawrence M. Solan Brooklyn Law School Date Posted: 05 Sep 2018 [4th last week]	122
3.	Online Child Sexual Exploitation: Towards an Optimal International Response Victoria Baines Bournemouth University - School of Computing Date Posted: 11 Sep 2018 [5th last week]	116
4.	Poor Wesley Hohfeld Peter K. Westen University of Michigan Law School Date Posted: 13 Oct 2018 [new to top ten]	87
5.	Execution by Nitrogen Hypoxia: The Search for Scientific Consensus Kevin Morrow Independent Date Posted: 29 Sep 2018 [7th last week]	81
6.	Neurohype and the Law: A Cautionary Tale Stephen Morse University of Pennsylvania Law School Date Posted: 06 Sep 2018 [9th last week]	72
7.	Ipeelee and the Duty to Resist Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau University of Ottawa - Civil Law Section and University of Ottawa - Faculty of Law Date Posted: 31 Aug 2018 [8th last week]	67
8.	Sex Offenders, Custody and Habeas Wendy Calaway University of Cincinnati - Blue Ash Date Posted: 28 Aug 2018 [10th last week]	58
9.	Justice and the 'Mental Causation' Fallacy John A. Humbach Pace University School of Law Date Posted: 31 Aug 2018 [new to top ten]	56
10.	Patty Hearst Reconsidered: Personal Identity in the Criminal Law Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 13 Sep 2018 [new to top ten]	51

This week's criminal law/procedure oral argument

Issue summary is from ScotusBlog, which also links to papers:

Tuesday

• Garza v. Idaho: Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Compelled Decryption and the Privilege Against Self-Incrimination Orin S. Kerr University of Southern California Gould School of Law Date Posted: 11 Oct 2018	709
2.	The Power of Prosecutors Jeffrey Bellin William & Mary Law School Date Posted: 08 Sep 2018	218
3.	Prosecuting in the Shadow of the Jury Anna Offit New York University School of Law Date Posted: 21 Aug 2018 [4th last week]	137
4.	Staying Faithful to the Standards of Proof Kevin M. Clermont Cornell Law School Date Posted: 08 Oct 2018 [6th last week]	122
5.	Artificial Intelligence and Policing: Hints in the Carpenter Decision Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 03 Sep 2018	117
6.	Gas Chromatography-Mass Spectrometer (GC/MS): In Scientific Evidence, Even 'Gold Standard' Techniques Have Limitations Joanna Gin and Edward J. Imwinkelried University of California, Davis and University of California, Davis - School of Law Date Posted: 14 Sep 2018 [7th last week]	86
7.	Policing the Admissibility of Body Camera Evidence Jeffrey Bellin and Shevarma Pemberton William & Mary Law School and Independent Date Posted: 11 Sep 2018 [9th last week]	61
8.	Video, Popular Culture, and Police Excessive Force: The Elusive Narrative of Over-Policing Susan A. Bandes DePaul University - College of Law Date Posted: 21 Aug 2018 [10th last week]	59
9.	The Jim Crow Jury Thomas Frampton Harvard Law School Date Posted: 04 Sep 2018 [new to top ten]	59
10.	Jail as Injunction Russell M. Gold Wake Forest University - School of Law Date Posted: 13 Sep 2018 [new to top ten]	47

Gilad et al. on Childhood Exposure to Crime

Michal Gilad, Abraham Gutman and Stephen Chawaga (University of Pennsylvania Law School, Philadelphia Inquirer and Independent) have posted The Snowball Effect of Crime & Violence: Measuring the Triple-C Impact (Fordham Urban Law Journal, Vol. 46, No. 1, 2018) on SSRN. Here is the abstract:

 

The Article is one of the first to take an inclusive look at Comprehensive Childhood Crime Impact (Triple-C Impact) — the monumental problem of exposure to crime during childhood. This problem is estimated to be one of the most damaging and costly public health and public safety problem in our society today. The Article presents an original empirical analysis revealing the states’ failure to provide effective recourse to the millions of children nationwide who suffer from exposure to crime and violence. Additionally, it provides an in-depth evidence-based investigation into the magnitude of the Triple-C Impact problem, and the full-range of adverse outcomes suffered by affected children, as well as our society as a whole, that result from the states’ deficient practices. The Article establishes the importance of developing effective policies that will enable early identification of, and intervention for, children harmed by crime exposure, in order to facilitate recovery from trauma. It demonstrates how improving state practices will prevent cascading injurious consequences, improving the lives and well-being of millions of children into adulthood, while also providing an almost unparalleled opportunity for savings on fiscal and social costs.

 

Gongola et al. on Children's Statements after Putative Confession Instructions

Jennifer Gongola, Nicholas Scurich and Thomas D. Lyon (University of California - Irvine, University of California - Irvine and University of Southern California - Gould School of Law) have posted Effects of Putative Confession Instruction on Perceptions of Children's True and False Statements (Forthcoming in Applied Cognitive Psychology) on SSRN. Here is the abstract:

 

The putative confession instruction (“[suspect] told me everything that happened and wants you to tell the truth”) during forensic interviews with children has been shown to increase the accuracy of children’s statements, but it is unclear whether adult’s perceptions are sensitive to this salutary effect. The present study examined how adults perceive children’s true and false responses to the putative confession (PC) instruction. Participants (n = 299) watched videotaped interviews of children and rated the child’s credibility and the truthfulness of his/her statements. When viewing children’s responses to the PC instruction, true and false statements were rated as equally credible, and there was a decrease in accuracy for identifying false denials as lies. These findings suggest that participants viewed the PC instruction as truth-inducing. Implications for the forensic use of the PC instruction are discussed.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• United States v. Haymond: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Smith on Good Persons and Good Prosecutors

Abbe Smith (Georgetown University Law Center) has posted Good Person, Good Prosecutor in 2018 (Fordham Law Review Online, Vol. 87, 2018) on SSRN. Here is the abstract:

 

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?” I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord — at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018.

Godsoe on Participatory Defense

Cynthia Godsoe (Brooklyn Law School) has posted Participatory Defense: Humanizing the Accused and Ceding Control to the Client (Mercer Law Review Vol. 69, p. 715, 2018) on SSRN. Here is the abstract:

This contribution to a Symposium on Disruptive Innovation in Criminal Defense focuses on participatory defense, a growing movement that humanizes the accused and empowers their families to assist or even challenge defense attorneys. By shifting notions of expertise and questioning deeply embedded power structures between attorneys and clients, participatory defense is more than disruptive—it is truly radical.

The movement has met with great success in individual cases and is contributing to systemic reform, yet has not been welcomed with open arms by all public defenders.

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Kreit on Safe Injection Sites

Alex Kreit (Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center) has posted Safe Injection Sites and the Federal 'Crack House' Statute (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws. A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision. They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths. To date, however, no U.S. city or state has sanctioned a safe injection site. Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs. This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

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Austin on LWOP

Regina Austin (University of Pennsylvania Law School) has posted 'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences (University of Pennsylvania Journal of Law and Social Change, Forthcoming) on SSRN. Here is the abstract:

 

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.

Diamond & Kaiser on Race, Jury Selection, and Backstrikes

Shari Seidman Diamond and Joshua Kaiser (Northwestern University, School of Law & American Bar Foundation and Dartmouth College) have posted Race and Jury Selection: The Pernicious Effects of Backstrikes (Howard Law Journal, Vol. 59, No. 3, 705-738) on SSRN. Here is the abstract:

 

A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn. Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror. Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black ones. Prosecutors were also more likely than defense attorneys to exercise backstrikes. This analysis reveals the nefarious implications of backstrikes for race-neutral jury selection.

Binnall on Felon Jurors

James M. Binnall (California State University, Long Beach) has posted Jury Diversity in the Age of Mass Incarceration: An Exploratory Mock Jury Experiment Examining Felon-Jurors' Potential Impacts on Deliberations (Psychology, Crime & Law, Forthcoming) on SSRN. Here is the abstract:

 

Today, nineteen million American citizens bear the mark of a felony conviction, far more than in any prior era. With that mark comes a host of record-based restrictions that curtail access to various political, social, and civic institutions. One such restriction impacts convicted felons’ eligibility for jury service. Forty-nine states, the federal government, and the District of Colombia statutorily limit convicted felons’ opportunities to serve as jurors. Justifying these restrictions, lawmakers and courts suggest that convicted felons, if allowed to serve, would diminish the quality of the deliberation process. This exploratory mock jury experiment is the first to assess jury deliberations that include felon-jurors, comparing 1) homogeneous juries comprised entirely of non-felon-jurors to diverse juries comprised of both non-felon and felon-jurors and 2) non-felon-jurors to felon-jurors. Results suggest that on theoretically derived measures of deliberation structure, deliberation content, and juror perceptions, diverse juries performed as well as homogeneous juries. Data also tend to demonstrate few statistically significant differences between felon-jurors and non-felon-jurors. Notably, on measures of novel case facts covered and time spoken as a proportion of deliberation duration, felon-jurors outperformed their non-felon counterparts, perhaps calling into question the purported threat they pose and the necessity of blanket felon-juror exclusion policies.