CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, November 21, 2017

Ginther et al. on Decoding Guilty Minds

Matthew R. GintherFrancis X. ShenRichard J. BonnieMorris B. HoffmanOwen D. Jones and Kenneth W. Simons (Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law) have posted Decoding Guilty Minds (Forthcoming in Vanderbilt Law Review (2018)) on SSRN. Here is the abstract:
 
A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them.

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November 21, 2017 | Permalink | Comments (0)

Howlin on Wrongful Conviction, Circa 1882

Niamh Howlin (Sutherland School of Law, University College Dublin) has posted Maamtrasna: The Trial of Myles Joyce in 1882 on SSRN. Here is the abstract:
 
At Maamtrasna, County Galway, five members of the Joyce family were brutally killed in August 1882. The initial victims were John Joyce his mother, Margaret Joyce, his wife, Bridget Joyce, his daughter, Margaret Joyce (also known as Peggy). John’s son, Michael Joyce, died of his injuries the following day. The sole survivor of the attack was Patsy Joyce, John’s youngest son, aged around nine or ten years. 

Myles Joyce was convicted in November 1882 of murdering his cousin, Margaret Joyce. He was one of ten men arrested. Two of these men, Anthony Philbin and Thomas Casey, later testified against the others. Five pleaded guilty and received prison sentences; these were Michael Casey, Martin Joyce (Myles’s brother), Patrick Joyce (another brother of Myles), Tom Joyce (Patrick’s son) and John Casey. Three men, Myles Joyce, Patrick Joyce and Patrick Casey were tried, convicted and hanged. Given the number of victims, accused persons and accusers, and the remote, tight-knit nature of the area, it is unsurprising that there were various relationships between the main protagonists. They were neighbours, cousins, brothers, fathers and sons, many of whom shared the same names and surnames. 

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November 21, 2017 | Permalink | Comments (0)

Caruso on The Public Health-Quarantine Model

Gregg D. Caruso (SUNY Corning) has posted The Public Health-Quarantine Model (Forthcoming, Oxford Handbook of Moral Responsibility, Eds. Dana Nelkin and Derk Pereboom. New York: Oxford University Press) on SSRN. Here is the abstract:
 
One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per se face significant independent moral objections (Pereboom 2014:153). Despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular incapacitation, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health-quarantine model (Caruso 2016, 2017a)—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own since it prioritizes prevention and social justice. 

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November 21, 2017 | Permalink | Comments (0)

Monday, November 20, 2017

"Eliminating Police Bias When Handling Drug-Sniffing Dogs"

From NPR, via the NACDL news scan:

Seven years ago, a researcher named Lisa Lit published a study that she now calls "a real career-ender."

On the surface, the study tested the abilities of fourteen certified sniffer dogs to find hidden "targets." In reality, the dogs' human handlers were also under the magnifying glass. They were led to believe there were hidden target scents present, when in fact there were none. Nevertheless, the dogs "alerted" to the scents multiple times — especially in locations where researchers had indicated a scent was likely.

November 20, 2017 | Permalink | Comments (0)

"Four thoughts on the briefing in Carpenter v. United States"

Orin Kerr has this post at Lawfare. In part:

I think Carpenter's position is misguided, but his basic theory is the most direct and clear argument for equilibrium-adjustment that I have seen articulated in a legal brief. As some readers know, I have argued that the Court does and should update Fourth Amendment rules to maintain the balance of government power as technology changes. The idea that is that some technological shifts so transform the level of government investigative power (whether expanding it or restricting it) that they justify new rules to restore the prior level of government power. I have called this "equilibrium-adjustment," as the court adjusts the legal rule to restore the prior equilibrium.

 

 

November 20, 2017 | Permalink | Comments (0)

"15 men exonerated in one day -- and 7 Chicago cops taken off the street"

From CNN, via the NACDL news scan:

The men whose charges were tossed alleged that Watts and his team of officers planted drugs on them during arrests between 2003 and 2008, then falsified police reports, leading to their convictions, according to the Exoneration Project, a free legal clinic at the University of Chicago Law School that presented the cases to county prosecutors.
 
A Cook County judge on Thursday approved prosecutors' decision to drop the charges. All the men had served their sentences for the crimes in question, according to the Exoneration Project: 14 are free, and one remains incarcerated on unrelated charges.

November 20, 2017 | Permalink | Comments (0)

Harris et al. on Accounting Malfeasance and Sarbanes-Oxley

Peter HarrisKatherine KinkelaLiz Washington Arnold and Michelle Liu (New York Institute of Technology, New York Institute of Technology, The Citadel and New York Institute of Technology) have posted Corporate Accounting Malfeasance and Financial Reporting Restatements in the Post-Sarbanes-Oxley Era (Review of Business & Finance Studies, v. 8 (1) p. 41-48) on SSRN. Here is the abstract:
 
The U.S. Congress passage of the Sarbanes-Oxley Act of 2002 (SOX) was a direct response to the accounting scandals of the 1990s and an attempt to reform the financial/business reporting process. Due to corporate malfeasance in the United States since the mid 1990s, there has been a significant increase in the number of companies restating their financial statements. After a large increase in restatements over the first years after SOX, for the past five years, fewer companies are restating financial statements. This paper provides an overview of corporate accounting malfeasance, the state of corporate accounting malfeasance, reasons for its occurrence, comprehensive listings of the types of corporate accounting malfeasance activities, and the U.S. legislative response. The paper also theorizes that not only is corporate accounting malfeasance is here to stay, but malfeasance is an inherent part of the U.S. and global financial system, regardless of the policies implemented by the Securities and Exchange Commission (SEC), other regulatory bodies, or leading institutions of the accounting profession. The paper suggests that certain aspects of the Sarbanes-Oxley Act have been effective in helping companies to detect fraud more easily, and corporations have added internal controls and provided restatements of financial statements to demonstrate their commitment to compliance. Future commitment to internal controls for corporations and auditors is necessary to ensure transparency in financial statements.

November 20, 2017 | Permalink | Comments (0)

Barry on Death Penalty Abolition

Barry kevinKevin M. Barry (Quinnipiac University - School of Law) has posted The Law of Abolition (Journal of Criminal Law and Criminology, Vol. 107, No. 4, 2017) on SSRN. Here is the abstract:
 
Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands.

When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, for the first time and all in one place, the opinions of judges who have advocated abolition of the death penalty over the past half-century, and suggests, through this “law of abolition,” what a Supreme Court decision invalidating the death penalty might look like. Although no one can know for sure how history will judge the death penalty, odds are good that the death penalty will come to be seen as one of the worst indignities our nation has ever known and that a Supreme Court decision abolishing it will, in time, be widely accepted as right.

November 20, 2017 | Permalink | Comments (0)

Koehler et al. on Juror Judgments about Forensic Science Testimony

Jonathan J. KoehlerN. J. SchweitzerMichael J. Saks and Dawn E. McQuiston (Northwestern University - Pritzker School of Law, Arizona State University, Arizona State University (ASU) - Sandra Day O'Connor College of Law and Wofford College) have posted Science, Technology, or the Examiner Experience: What Influences Jurors' Judgments About Forensic Science Testimony? on SSRN. Here is the abstract:
 
The impact of forensic science evidence on jurors’ judgments is critically important to the criminal justice system. The assignment of low or high weight to such testimony can be the difference between acquittal or conviction. Many of the traditional forensic sciences (e.g., fingerprints and bitemarks) draw their strength largely from the subjective judgments of examiners who testify about whether evidentiary prints or other markings are consistent with (or “match”) known markings from a person or object. In an online experiment (Experiment 1) and a realistic jury simulation using actual jurors or jury-eligible adults (Experiment 2), this paper investigates three factors that might affect how jurors think about and use forensic science evidence. These factors are (a) whether the forensic science method had been scientifically tested, (b) the forensic scientist’s background and experience, and (c) how sophisticated the forensic science technology is. The results show a strong and consistent effect for examiner background and experience on evidence strength judgments, no effect for forensic technology sophistication, and a limited and inconsistent effect for scientific testing (present in the online experiments, absent in the realistic jury simulation). These findings raise concerns about potential undue influence of examiner background and experience on jurors’ judgments, and lack of clear influence of scientific testing. The implications of our findings for criminal justice practices and policies are considered.

November 20, 2017 | Permalink | Comments (0)

Sunday, November 19, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
229
2.

Corpus Linguistics as a Tool in Legal Interpretation

Brooklyn Law School and Hofstra University
161
3.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Vanderbilt University - Law School
158
4.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
145
5.

The Real Law of Virtual Reality

Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
107
6.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
66
7.

Ordinary Meaning and Corpus Linguistics

UC Santa Barbara - Department of Linguistics and University of the Pacific - McGeorge School of Law
65
8.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
65
9.

Immigration Equity's Last Stand: Sanctuaries & Legitimacy in an Era of Mass Immigration Enforcement

University of Georgia Law School
55
10.

Reforming the Law on Police Use of Deadly Force: De-Escalation, Pre-Seizure Conduct, and Imperfect Self-Defense

George Washington University Law School
54

November 19, 2017 | Permalink | Comments (0)

Saturday, November 18, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402

The George Washington University Law School
1,096
2.

Criminalizing Race: Racial Disparities in Plea Bargaining

Loyola Law School Los Angeles
958
3.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
229
4.

Understanding 'Sanctuary Cities'

University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School
224
5.

Zombie Predictions and the Future of Bail Reform

Upturn and Georgetown University Law Center
140
6.

State Criminal Appeals Revealed

Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students
126
7.

The Proficiency of Experts

University of Virginia School of Law and University of Virginia School of Law
106
8.

The Intake Prosecutor: Prosecutorial Screening Before the Police Make Warrantless Arrests

William & Mary Law School
93
9.

Criminal Justice, Inc.

University of Chicago Law School
86
10.

Immigration Defense Waivers in Federal Criminal Plea Agreements

University of Texas at Austin - School of Law, University of Texas School of Law and University of Texas at Austin - School of Law
79

November 18, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

Levenson on The Politics of Ethics

Levenson LaurieLaurie L. Levenson (Loyola Law School Los Angeles) has posted The Politics of Ethics (Mercer Law Review, Forthcoming) on SSRN. Here is the abstract:
 
One of the most challenging endeavors in revamping ethical rules is to adopt new rules regarding prosecutorial conduct. Viewing themselves as “ministers of justice,” prosecutors are reluctant to believe that they need additional rules governing their ethical conduct. They are particularly resistant to rules proposed by others, especially defense counsel. Prosecutors tend to view these as an unnecessary intrusion and a threat to prosecutorial independence. However, it is critical that prosecutors and defense counsel resist the temptation to politicize the process of evaluating, adopting and revising ethical rules. The impact of these rules is far too important to be compromised by political interests.

November 17, 2017 | Permalink | Comments (0)

Raza on Cyber Crimes

Aqa Raza has posted Laws Relating to Cyber Crimes: Theories and Legal Aspects on SSRN. Here is the abstract:
 
This paper mainly deals with the laws relating to the cyber crimes in India. The objectives of this research paper are four-fold: firstly, to analyze the concept of jurisdiction and the various theories to determine jurisdiction in cases where such offences are committed relating to cyber crimes; secondly, to analyze the jurisdiction theories applicable under Cybercrime Convention; thirdly, to analyze the jurisdiction theories applicable under the Information Technology Act, 2000; and fourthly, to analyze whether there can be one jurisdiction theory that may globally be applicable to all cyber crimes. For the sake of convenience, this research paper has been divided into various parts. The paper focuses on the various theories of jurisdiction and the jurisdiction principles applicable under the Cybercrime Convention, 2001 on cybercrime. The jurisdiction principle applicable under the Information Technology Act, 2000 have also been discussed in the paper.


 

November 17, 2017 | Permalink | Comments (0)

Thursday, November 16, 2017

Minson on Maternal Imprisonment

 
It is my contention that all the harms suffered by a child whose parent is being punished through imprisonment have their origin in prison culture and stigmatisation relating to the parent’s imprisonment, and consequently these harms are different to those suffered due to parent and child separation experienced for any other reason, for example marital breakdown or bereavement. Drawing on Comfort’s work I suggest that the harms raise particular concerns and have ‘corrosive’ damaging impacts on children because their origin is in punishment within the criminal justice system: the criminal justice system is distinct… in that it is charged with exacting control and distributing punishment, and hence a spillover effect is inherently more corrosive to bystanders than that of an institutional process concerned with providing a social good, such as medical treatment or education. 

I offer the suggestion that harms which children of imprisoned mothers experience come from two different social acts and attach to children in two specific ways.

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November 16, 2017 | Permalink | Comments (0)

Wesson on Crime Fiction

Wesson marianneMarianne Mimi Wesson (University of Colorado Law School) has posted The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction (51 New Eng. L. Rev. 101 (2017)) on SSRN. Here is the abstract:
 
Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. The essay considers as well the protagonists’ insights (often useful, too often nonexistent) regarding issues of gender, race, and economic status — in their own professional lives, and as determinants of how one accused of a crime, or victimized by one, will experience the institutions of criminal justice. The essay concludes with some worried observations about what the election of Donald Trump may portend for crime fiction, in its likely corrosion of the rule of law and thus of the institutions of criminal justice.

November 16, 2017 | Permalink | Comments (0)

Mungan on Wrongful Convictions and Deterrence

Mungan muratMurat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Wrongful Convictions, Deterrence, and Stigma Dilution on SSRN. Here is the abstract:
 
There is no consensus in the economics of law enforcement literature regarding the likely effects of wrongful convictions on deterrence. While many assert that wrongful convictions and wrongful acquittals are likely to cause similar reductions in deterrence, others, most notably Lando (2006), have claimed that certain types of wrongful convictions are unlikely to affect deterrence. However, the stigmatizing effects of convictions are not taken into account in the formulation of either view. Frequent wrongful convictions naturally make criminal records less meaningful, because they reduce the proportion of truly guilty individuals among the convicted population. This stigma dilution effect, along with similar effects regarding the probability of stigmatization, are formalized via a model wherein criminal records act as noisy signals of offenders' characteristics. The analysis reveals that when criminal records cause stigmatization, wrongful convictions reduce deterrence, even if they are caused by adjudication mistakes which were previously shown to have no effect on deterrence. This suggests that pro-defendant biases in various criminal procedures can potentially be explained through interactions between stigmatization and wrongful convictions.

November 16, 2017 | Permalink | Comments (0)

Wednesday, November 15, 2017

"He thought he had a free court-appointed lawyer. Then he got a bill for $10,000"

From The Texas Tribune, via the NACDL news scan:

In Texas and across the country, defendants are sometimes asked to repay part or all of the costs of their court-appointed lawyer through a practice called recoupment. Texas counties recouped more than $11 million from poor defendants in 2016, 4.5 percent of the total amount spent on indigent defense statewide.

Data maintained by the Texas Indigent Defense Commission shows wild variation in how much money Texas counties recoup from poor defendants. Johnson County, where Unterburger was charged, recouped nearly 15 percent of the money it spent on indigent defense last year. According to the data, Andrews County made back nearly 70 percent of its public defense costs in 2016, while 51 others recouped nothing at all.

November 15, 2017 | Permalink | Comments (0)

"U.S. Commission on Civil Rights issues statement in support of sentencing provisions of Sentencing Reform and Corrections Act of 2017"

Doug Berman at Sentencing Law & Policy links to and excerpts the statement, which supports a bill that "proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges in more cases."

November 15, 2017 | Permalink | Comments (0)

"More Defenders Get Access to 'Bad Cops' Database"

From WNYC, via NACDL news scan:

State law makes police disciplinary records confidential without a court order. Even though prosecutors have a constitutional obligation to disclose material that could help the defense, there's no real requirement they go looking for such evidence that might kill a case. As a result, many defendants never had a chance to learn about the misconduct history of police officers involved in their case — records that could sway jurors.

So Legal Aid launched the database in 2015, which it formally calls the Cop Accountability Project.

Paralegal Julie Ciccolini has been adding records ever since, including information from lawsuits, news reports, Internal Affairs and Civilian Complaint Review Board filings that are sometimes revealed in court, and even offensive social media posts that might call into question an officer’s truthfulness.

The database also tracks when judges deem an officer’s testimony not credible. The database has information on more than 160 officers with a formal credibility ruling against them, including nearly 80 a judge deemed incredible in the last three years.

November 15, 2017 | Permalink | Comments (0)

Finchett-Maddock on Street Art and Graffiti

Lucy Finchett-Maddock (Sussex School of Legal Studies) has posted In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti (Duncan Chappell and Saskia Hufnagel, Art Crime Handbook (Palgrave MacMillan, Forthcoming)) on SSRN. Here is the abstract:
 
This piece seeks to demonstrate the striating role of property within street art and graffiti, creating a threshold where criminal and intellectual property meet to both outlaw and protect street art at the same time. Street art reveals a legal vacuum for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy, illustrating where law means all and nothing at once. Legal sanction is argued as affecting the aesthetics of street art, where criminalisation protects the rights of property owners over the creative rights of artists, reasserting the exclusionary nature of law, intertwined with reasserting the ‘outsider’ nature of their art. This is argued as not coincidental, but that notions of aesthetics are not only prioritised by the art ‘establishment’, but also supported by law, to the detriment of other forms of aesthetics such as street art and graffiti. As such, street art and graffiti reveals the elixir of property in both the art and legal establishments, coming to pass as a result of violent histories of expropriation through art property and real property. Ultimately, street art and graffiti is argued as a protest against the legal-aesthetic hegemony, the analysis of criminal, real and intellectual property meeting points telling us more about the congenital role of art in law and vice versa than solely explaining the legalities of random acts of illicit expression.

November 15, 2017 | Permalink | Comments (0)