Saturday, August 31, 2019
Phillips & Marceau on Whom the State Kills
Scott Phillips and Justin F. Marceau (University of Denver and University of Denver Sturm College of Law) has posted Whom the State Kills on SSRN. Here is the abstract:
Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim. Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries. Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death. Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts. Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case – death sentences – were amplified in the ultimate stage of the case – executions. Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases. Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.
August 31, 2019 | Permalink | Comments (0)
Friday, August 30, 2019
Cicchini on Reasonable Doubt Instructions
Michael D. Cicchini has posted Reasonable Doubt and Relativity (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. But in reality, this lofty standard is only as strong as the words used to explain it to the jury.
Unfortunately, attempts to explain reasonable doubt often create confusion or even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof.
Unfortunately, attempts to explain reasonable doubt often create confusion or even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof.
August 30, 2019 | Permalink | Comments (0)
Marceau & Dewey on Carceral Animal Law
Justin F. Marceau and William Dewey (University of Denver Sturm College of Law and University of Denver Sturm College of Law) has posted Friends of Every Friendless Beast Carceral Animal Law and the Funding of Prosecutors (Canadian Journal of Comparative and Contemporary Law) on SSRN. Here is the abstract:
In the mid-nineteenth century, the founder of the American Society for the Prevention of Cruelty to Animals (ASPCA), Henry Bergh, saw criminal punishment as the lynchpin of the protection of animals. Bergh lobbied the New York legislature for the adoption of animal cruelty laws, and took it on himself to enforce those laws. Animal law has evolved considerably since then, but Bergh’s tactics have experienced a renaissance. The animal protection movement’s reliance on criminal law and incarceration to prop up animal status is the subject of a book-length critique by Justin Marceau in Beyond Cages: Animal Law and Criminal Punishment. Picking up on the book’s call for greater scholarly attention to the relationship between criminal justice and animal protection, this essay focuses scrutiny on three aspects of the modern animal protection’s fixation with criminal justice: (1) the animal protection movement’s renewed interest in privatizing the prosecutorial function; (2) the view that by framing the animal as a victim, social change will be more readily possible; and (3) more generally, the view that prosecutors will serve as catalysts for the sort of radical social change the animal protection movement is pursuing.
August 30, 2019 | Permalink | Comments (0)
Thursday, August 29, 2019
Cicchini on Preliminary Hearings
Michael D. Cicchini has posted Improvident Prosecutions (12 Drexel L. Rev. __ (forthcoming, 2019-20)) on SSRN. Here is the abstract:
Litigation has been called “a machine which you go into as a pig and come out of as a sausage.” With regard to modern criminal litigation, however, this life-ruining impact is strictly one-sided: the prosecutor files criminal complaints with reckless abandon and without repercussion or personal cost, while defendants bear the life-altering consequences of the litigation and, in many cases, the resulting convictions.
But prosecuting a felony accusation isn’t supposed to be that easy and carefree for the government. The preliminary hearing — a pretrial evidentiary hearing to determine probable cause — was designed to serve as a buffer between the government and the citizenry, and “to prevent hasty, malicious, improvident and oppressive prosecutions.” Unfortunately, in today’s assembly-line approach to criminal law, prosecutors and judges have developed many ways to bypass this procedural safeguard and keep the criminal justice machinery humming along.
But prosecuting a felony accusation isn’t supposed to be that easy and carefree for the government. The preliminary hearing — a pretrial evidentiary hearing to determine probable cause — was designed to serve as a buffer between the government and the citizenry, and “to prevent hasty, malicious, improvident and oppressive prosecutions.” Unfortunately, in today’s assembly-line approach to criminal law, prosecutors and judges have developed many ways to bypass this procedural safeguard and keep the criminal justice machinery humming along.
August 29, 2019 | Permalink | Comments (0)
Chan et al. on Restorative Justice and Violence
Janet Chan, Jane Bolitho and Jenny Bargen (Independent, University of New South Wales (UNSW) - School of Social Science and Policy and Independent) have posted Restorative Justice as an Innovative Response to Violence on SSRN. Here is the abstract:
Australian scholars have been at the forefront of debates and research regarding restorative justice and other non-traditional criminal justice responses to violence that have been advocated in recent decades. In her discussion of sexual violence, Daly (2011: 9) distinguishes between ‘conventional’ justice and ‘innovative’ justice responses: the former being concerned with helping victims to ‘cope better’ with the criminal justice processes, the latter with ‘addressing those things that many victims say they want, but rarely experience in the criminal justice system’. She sees the two types of responses as ‘residing on a continuum’ but does not explain what is ‘innovative’ about innovative justice responses. A recent report suggests that innovative justice has a wider focus: ‘improving victim’s access to justice and experience of justice, while also focus-ing on offender rehabilitation and community repair’, the emphasis being on ‘trying new approaches and creating a “menu” of justice options, recognizing that not all cases require the same justice response’.
August 29, 2019 | Permalink | Comments (0)
Wednesday, August 28, 2019
Deeks on Explainable AI
Ashley Deeks (University of Virginia School of Law) has posted The Judicial Demand for Explainable Artificial Intelligence (119 Colum. L. Rev. __ (forthcoming 2019)) on SSRN. Here is the abstract:
A recurrent concern about machine learning algorithms is that they operate as “black boxes,” making it difficult to identify how and why the algorithms reach particular decisions, recommendations, or predictions. Yet judges will confront machine learning algorithms with increasing frequency, including in criminal, administrative, and tort cases. This Essay argues that judges should demand explanations for these algorithmic outcomes. One way to address the “black box” problem is to design systems that explain how the algorithms reach their conclusions or predictions. If and as judges demand these explanations, they will play a seminal role in shaping the nature and form of “explainable artificial intelligence” (or “xAI”). Using the tools of the common law, courts can develop what xAI should mean in different legal contexts.
August 28, 2019 | Permalink | Comments (0)
Cicchini on Strickland's Application to Judicial and Prosecutorial Misconduct
Michael D. Cicchini has posted Constraining Strickland (7 Texas A&M L. Rev. __ (forthcoming, 2020)) on SSRN. Here is the abstract:
When a convicted defendant pursues an ineffective assistance of counsel (IAC) claim on appeal — for example, by alleging that the defense lawyer failed to call an important witness at trial — the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.
The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.
The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.
August 28, 2019 | Permalink | Comments (0)
Pasculli on Preventing Global Crime
Lorenzo Pasculli (Coventry University - Coventry Law School) has posted The Age of Prevention. Crime and Crime Prevention in the Global Era on SSRN. Here is the abstract:
After a short outline of the features of global crime and of the (mostly negative and exceptional) measures of prevention of global crime, the paper upholds the thesis according to which in order to prevent global crime we need more positive measures, capable to eliminate the deepest roots and the ultimate causes of crime, rather than mere individual restrictive measures which entail the risk to increase the reasons for more criminality and, eventually, a serious rethinking of the forms of public power towards a global society and a global system of also criminal justice.
August 28, 2019 | Permalink | Comments (0)
Tuesday, August 27, 2019
Cicchini on Combating Judicial Misconduct
Michael D. Cicchini has posted Combating Judicial Misconduct: A Stoic Approach (Buffalo Law Review, Forthcoming) on SSRN. Here is the abstract:
Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.
This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and bias within the context of the client’s case. This Stoic practice has two primary benefits.
This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and bias within the context of the client’s case. This Stoic practice has two primary benefits.
August 27, 2019 | Permalink | Comments (0)
Marlan on Psychedelic Decriminalization
Dustin Marlan (University of Massachusetts School of Law) has posted Beyond Cannabis: Psychedelic Decriminalization and Social Justice (Lewis & Clark Law Review, Vol. 23, No. 3, 2019) on SSRN. Here is the abstract:
Psychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals.
In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics?
In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics?
August 27, 2019 | Permalink | Comments (0)
Friehe & Mungan on Enforcer Liability for Wrongful Police Stops
Tim Friehe and Murat C. Mungan (University of Marburg and George Mason University - Antonin Scalia Law School, Faculty) have posted The Political Economy of Enforcer Liability for Wrongful Police Stops on SSRN. Here is the abstract:
This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and, consequently, that excessive policing practices emerge in equilibrium.
August 27, 2019 | Permalink | Comments (0)
Goodwin on Modern Slavery and Mass Incarceration
Michele Goodwin (University of California, Irvine School of Law) has posted The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration (Cornell Law Review, Vol. 104, 2019) on SSRN. Here is the abstract:
The Article makes two conceptual contributions. First, it tells a story about the Thirteenth Amendment forbidding one form of slavery while legitimating and preserving others. Of course, the text does not operate absent important actors: legislatures and courts. Yet, as explained by Reva Siegel, despite “repeated condemnation of slavery,” such united opposition to the practice "may instead function to exonerate practices contested in the present, none of which looks so unremittingly 'evil' by contrast." In this case, uncompensated prison labor inures economic benefits to the state and the companies capable of extracting it.
The Article argues that this preservation of the practice of slavery through its transformation into prison labor means only that socially, legislatively, and judicially, we have come to reject one form of discrimination: antebellum slavery, while distinguishing it from marginally remunerated and totally unremunerated prison labor, which courts legitimate.
The Article argues that this preservation of the practice of slavery through its transformation into prison labor means only that socially, legislatively, and judicially, we have come to reject one form of discrimination: antebellum slavery, while distinguishing it from marginally remunerated and totally unremunerated prison labor, which courts legitimate.
August 27, 2019 | Permalink | Comments (0)
Koehler on the Foreign Corrupt Practices Act
Mike Koehler (Southern Illinois University School of Law) has posted Has the Foreign Corrupt Practices Act Been Successful In Achieving Its Objectives? (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
As long as there has been law, inquisitive minds have contemplated the salient question of whether the law has been successful in achieving its objectives. In 1977, the U.S. enacted the Foreign Corrupt Practices Act (“FCPA”), the first law of its kind in the world governing the conduct of domestic actors in their interactions with foreign officials in foreign markets. Upon the 40th anniversary of the FCPA, it is appropriate to ask the salient question of whether the FCPA has been successful in achieving its objectives.
To answer this question, success in the FCPA context must first be defined.
To answer this question, success in the FCPA context must first be defined.
August 27, 2019 | Permalink | Comments (0)
Monday, August 26, 2019
Siebecker & Brandes on Corporate Compliance and Criminality
Michael R. Siebecker and Andrew M. Brandes (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Corporate Compliance and Criminality: Does the Common Law Promote Culpable Blindness? (Connecticut Law Review, Vol. 50, No. 387, 2018) 0n SSRN. Here is the abstract:
Could corporate directors and officers face criminal liability for actions that ostensibly comport with common law fiduciary duties? Answering this rather odd question has gained paramount importance following the United States Justice Department's recent promulgation of aggressive new prosecution policies targeting individual officers and directors responsible for major corporate misconduct. In September 2015, former Deputy Attorney General Sally Yates disseminated an official policy memorandum entitled, Individual Accountability for Corporate Wrongdoing. The Yates Memo instructs federal prosecutors to ferret out and punish individual executives, officers, and board members who commit crimes on behalf of the corporation. The recent indictment of several Volkswagen executives connected with the auto emissions defeat device scandal represents a prominent example of the new prosecutorial philosophy.
The shift in prosecutorialf ocus by the DOJ pursuant to the Yates Memo has created a substantial jurisprudential rift between federal standards for criminal prosecution of corporate agents and common law standards for fufilling the fiduciary duties of officers and directors.
The shift in prosecutorialf ocus by the DOJ pursuant to the Yates Memo has created a substantial jurisprudential rift between federal standards for criminal prosecution of corporate agents and common law standards for fufilling the fiduciary duties of officers and directors.
August 26, 2019 | Permalink | Comments (0)
Lee on Probable Cause
Cynthia Lee (George Washington University Law School) has posted Probable Cause with Teeth on SSRN. Here is the abstract:
Recent incidents involving African Americans who were arrested by police for engaging in activities that rarely lead to police intervention when individuals who are not African American engage in similar activities highlight the need for clarity regarding how much certainty of guilt is required before an officer can arrest an individual. The Supreme Court, however, has provided very little guidance on exactly how much certainty of guilt is required to establish probable cause, stating only that probable cause is more than a mere suspicion but less than proof needed to convict. In 1983, Justice Rehnquist lowered the bar significantly when he opined in Texas v. Brown that probable cause “does not demand any showing that such a belief be correct or more likely true than false.” Many lower courts have repeated Justice Rehnquist’s comment on probable cause as if it were settled law. In doing so, very few seem to recognize that Texas v. Brown was just a plurality opinion and the meaning of probable cause was not the main issue before the Court.
August 26, 2019 | Permalink | Comments (0)
Metz et al. on Risk and Low-Level Sentencing
Anne Metz, John Monahan, Brandon L. Garrett and Luke Siebert (University of Lynchburg, University of Virginia School of Law, Duke University School of Law and Masters in Public Health Candidate, University of Virginia School of Medicine; Research Assistant, University of Virginia School of Law) have posted Risk and Resources: A Qualitative Perspective on Low-Level Sentencing in Virginia (Journal of Community Psychology 2019; 47: 1476-1492) on SSRN. Here is the abstract:
Virginia's sentencing guidelines include alternative sanctions based on the use of a quantitative instrument called the Nonviolent Risk Assessment (NVRA) that identifies individuals convicted of drug and property crimes that are considered to be at lower risk of recidivism. Although nondispositive, the NVRA affords judges the discretion to grant alternative sentences to eligible low‐risk defendants. In this study, we explore how judges make use of the NVRA instrument when sentencing individuals convicted of low‐level drug and property crimes. Through semistructured interviews (N=24) and inductive thematic analysis, the research team identified contextual factors that influence the use of the NVRA results, including: the availability of alternative programs in a community, the role of court actors, particularly prosecutors, in shaping the sentencing outcomes, as well as an individual judge's willingness to defer to or reject negotiated plea agreements offered by the prosecutor. Our research shows that while some judges are aware of and embrace the benefits of the instrument, others lack knowledge altogether of its function and empirical basis. We identified seven themes that account for variation in how actuarial risk is utilized in the sentencing process. Our findings provide insight into the practical challenges of using risk‐based assessment as a tool for the sentencing of low‐level convictions. As more states adopt risk‐based approaches to sentencing, studying Virginia, which has gone farther than other states in legislating this strategy, becomes increasingly important.
August 26, 2019 | Permalink | Comments (0)
Aviram on Still Cheap on Crime?
Hadar Aviram (University of California, Hastings College of the Law) has posted Are We Still Cheap on Crime? Austerity, Punitivism, and Common Sense in Trumpistan on SSRN. Here is the abstract:
Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential. But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric. This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns. The paper concludes that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus.
August 26, 2019 | Permalink | Comments (0)
Sunday, August 25, 2019
Top-Ten Recent SSRN Downloads in Criminal Law eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 16 Jul 2019 |
130 |
| 2. |
Date Posted: 29 Jul 2019 [4th last week] |
81 |
| 3. |
Date Posted: 20 Jun 2019 [3rd last week] |
80 |
| 4. |
Date Posted: 20 Jun 2019 [7th last week] |
71 |
| 5. |
Date Posted: 28 Jun 2019 |
70 |
| 6. |
Date Posted: 25 Jun 2019 |
68 |
| 7. |
Date Posted: 09 Jul 2019 [9th last week] |
53 |
| 8. |
Date Posted: 10 Jul 2019 |
52 |
| 9. |
Date Posted: 12 Jul 2019 [10th last week] |
50 |
| 10. |
Date Posted: 08 Aug 2019 [new to top ten] |
49 |
August 25, 2019 | Permalink | Comments (0)
Saturday, August 24, 2019
Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 16 Jul 2019 |
317 |
| 2. |
Date Posted: 04 Jul 2019 |
271 |
| 3. |
Date Posted: 06 Aug 2019 |
204 |
| 4. |
Date Posted: 11 Jul 2019 |
141 |
| 5. |
Date Posted: 29 Jul 2019 [6th last week] |
81 |
| 6. |
Date Posted: 24 Jun 2019 [7th last week] |
72 |
| 7. |
Date Posted: 28 Jun 2019 [8th last week] |
70 |
| 8. |
Date Posted: 25 Jul 2019 [10th last week] |
68 |
| 9. |
Date Posted: 20 Jun 2019 |
63 |
| 10. |
Date Posted: 27 Jun 2019 [new to top ten] |
58 |
August 24, 2019 | Permalink | Comments (0)
Friday, August 23, 2019
Kirchengast on Enforceable Rights for Victims
Tyrone Kirchengast (The University of Sydney Law School) has posted Enforceable Rights for Victims of Crime in Adversarial Justice (Revista de Victimologia / Journal of Victimology, 3, 11-42) on SSRN. Here is the abstract:
The response to calls for the better integration of victims into systems of criminal justice has resulted in a range of innovative programs and pilots seeking to reposition the victim. However, crime victims have tended to be managed away from the criminal trial into alternative pathways to justice in order to meet this policy directive. While innovation can be found at the periphery of criminal law and justice, through restorative justice, problem-solving and intervention programs that complement or work alongside normative trial processes, the twenty-first century is witness to the emergence of victim rights and powers that aff ect trial process in more direct ways. This paper explores the emergence of enforceable rights for victims of crime that impact on normative trial processes in an adversarial context. It does this by considering new powers for victims that impact on decisions made in the pre-trial, trial and sentencing phases of the criminal trial, in addition to extra-crucial powers that lie beyond any one phase of the trial.
August 23, 2019 | Permalink | Comments (0)
