Showing papers in "Journal of Criminal Law & Criminology in 1997"

"Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops

Abstract: Under a Constitution that restrains the government vis-a-vis the individual and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time, it seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses. The defendant-petitioners presented both of these arguments-the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops-to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction-toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.

Survey Research and Self-Defense Gun Use: An Explanation of Extreme Overestimates

Abstract: Editor's note: In Fall 1995, the Journal published an article by Professors Gary Kleck and Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. CRIM. & CRIMINOLOGY 150 (1995). As part of its Policy and Perspectives section, the Journal now publishes the views of Professor David Hemenway on the Kleck-Gertz paper, a reply by Professors Kleck and Gertz, and the views of Professor Tom Smith on both the Hemenway and Kleck-Gertz papers. As always, the views expressed here are those of the authors.

Criminal Behavior and Age: A Test of Three Provocative Hypotheses

Abstract: Issues about age and crime are among the most important in criminology. This is due largely to Hirschi and Gottfredson,' who contend that the familiar inverted J-curve association between age and crime is invariant, inexplicable with social science variables, and involves no interaction between age and any variable that explains or correlates with crime. These three hypotheses bear on several trends and issues. First, they challenge the criminal careers perspective that life cycle patterns of offending take many forms, each requiring specific explanations and longitudinal research for testing." If all people, including frequent offenders, commit more crime in the late teen years than later, then career offending is different only in amount, and the necessity of explaining different trajectories with special theories is vitiated. Moreover, if the causes of

Three Strikes: Can We Return to Rationality

Abstract: OF HABITUAL OFFENDER STATUTES ACROSS

The illegitimacy of one-sided speculation: getting the defensive gun use estimate down

Abstract: It is obvious to us that David Hemenway (H) had no intention of producing a balanced, intellectually serious assessment of our estimates of defensive gun use (DGU). Instead, his critique serves the narrow political purpose of "getting the estimate down," for the sake of advancing the gun control cause. An honest, scientifically based critique would have given balanced consideration to flaws that tend to make the estimate too low (e.g., people concealing DGUs because they involved unlawful behavior, and our failure to count any DGUs by adolescents), as well as those that contribute to making them too high. Equally important, it would have given greatest weight to relevant empirical evidence, and little or no weight to idle speculation about possible flaws. H's approach is precisely the opposite--one-sided and almost entirely speculative. Readers who have any doubts about the degree to which H's paper is imbalanced might carry out a simple exercise to assess our claim: count the number of lines H devotes to flaws tending to make the estimate too high and the number devoted to flaws making the estimate too low. We submit that the ratio is over 100-to-1, i.e., almost entirely devoted to speculations about why the estimate is too high.

Mens Rea and Inchoate Crimes

Abstract: and a concrete level On the abstract level, the purpose is "to do C [the actus reus], unless X [a criminalizing condition] obtains" On the concrete level, given D 1's belief that X does not obtain, his purpose is merely "to do C" Therefore, D, has both an abstract internally conditional purpose and a concrete internally unconditional purpose And we see no evidence in the case law or in the Model Penal Code that the courts are or should be interested in D1's abstract purpose rather than his concrete purpose In any event, whether we are right or wrong in our reply to this objection-and we would be delighted were the objection well taken and the state of the law more in accord with what we recommendthere is no reason to treat the defendant with an abstract internally conditional purpose differently from the defendant whose criminal purpose is internally unconditional but externally conditional In other words, there is no reason why D1 should fare better if he actually thinks to himself, "I would not assault V were he a federal officer, which he is not," or "I would not have sex with Lolita if she were under eighteen, which she is not," than if he does not subjectively entertain the possibility of his contemplated conduct's criminality but would desist were he made aware of that fact And there is absolutely no indication that the cases and commentators who endorse the Feola symmetry approach to the mens rea of inchoate crimes would be at all hesitant to convict the latter defendant (None of the cases or commentators even hint at the relevance of a counterfactual inquiry regarding external conditions, except, of course, for proponents of asymmetry like Enker and Fletcher) B THE ELEMENT IN QUESTION IS A CIRCUMSTANCE AND REQUIRES A MENS REA OF NEGLIGENCE FOR THE COMPLETED CRIME Let us take the three crimes in the previous section-assaulting a federal officer, statutory rape, and driving a car with an expired registration-and assume now that the crimes require that defendant be negligent with respect to whether the victim is a federal officer, the girl is under eighteen, and the registration has expired (Again, we 1997] 1163

A call for a truce in the DGU war

Abstract: For almost a decade scholars have been debating about how many defensive gun uses (DGUs) occur annually. Gary Kleck and colleagues, citing a series of polls culminating in the 1993 Kleck-Gertz survey, argue that at least 2.55 million people use a firearm for protection against criminals each year. Hemenway and others, relying on the National Crime Victimization Surveys (NCVSs), contend that only about 55,000 to 80,000 victims use guns against offenders in a given year. The estimates are wide apart and their academic champions staunchly defend their respective figures as correct and accurate, while dismissing the opposing figures as invalid and implausible. Neither side seems to be willing to give ground or see their opponents' point of view. This is unfortunate since there is good reason to believe that both sides are off-the-mark.

Statistical Aspects of Cases concerning Racial Discrimination in Drug Sentencing: Stephens V. State and U.S. V. Armstrong

Abstract: Statistical evidence has been accepted in a wide variety of legal cases, including trademark confusion,' product liability,2 and jury and employment discrimination.3 Recently, statistics introduced on behalf of defendants who have challenged the fairness of sentencing practices have been poorly received by courts, as compared to their acceptability in equal pay and related fair employment cases. In this article we argue that the usefulness of aggregating the results of many prosecutorial decisions into a statistical analysis may not be adequately appreciated by the legal system. This lack of appreciation may be partially due to the fact that rarely is any data set perfect; one can almost always assert that information about some potentially relevant variable

Comment on Ingraham's Moral Duty to Talk and the Right to Silence

Abstract: Professor Barton L. Ingraham opened an illuminating debate about fundamental legal principles usually assumed to be at the bedrock of American democracy in his reply' to my article in this journal. My article described how England's new limits to the right to silence allow judges and juries to consider as evidence of guilt both a suspect's failure to answer police questions during interrogation and a defendant's refusal to testify during trial.2 Proponents of this new law argued that it would "dissuade offenders from thwarting prosecution simply by saying nothing," force suspects to confess, increase convictions, and thereby reduce crime.3 Opponents countered that even the innocent may "have valid reasons for remaining silent, and that the proposal would not reduce crime, but rather would increase the likelihood of coerced or false confessions and erroneous convic-

Defining "Use" of a Firearm

Abstract: In Bailey v. United States, the United States Supreme Court held that in order to "use" a firearm in relation to a drug-trafficking crime within the meaning of 18 U.S.C. Sect 924(c)(1), a criminal defendant must actively employ the weapon. In separate and unrelated cases, petitioners Roland J. Bailey and Candisha S. Robinson were convicted in the United States District Court for the District of Columbia of, inter alia, using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sect 924(c)(1). Different panels of the United States Court of Appeals for the District of Columbia affirmed and reversed the petitioners' convictions, respectively. The D.C. Circuit subsequently consolidated the two cases for en banc reconsideration, wherein the court affirmed both Bailey's and Robinson's convictions. Bailey and Robinson then jointly petitioned for certiorari and the Supreme Court of the United States granted the petition in order to clarify the meaning of "use" under Sect 924(c)(1). This Note argues that the Court properly concluded that a defendant must "actively employ" a firearm in a manner that makes the firearm an operative factor in the predicate crime in order to violate 18 U.S.C. Sect 924(c)(1). The Note then explains how the unanimous decision, written by Justice O'Connor, narrowed the scope of Sect 924(c)(1) from the broad, far-reaching scope that O'Connor herself had implied in the majority opinion in Smith v. United States, a previous Supreme Court decision regarding the scope of conduct reached by the statute. Finally, this Note discusses whether the Court's recommendation that prosecutors charge offenders who mix guns and drugs under the "carry" prong of Sect 924(c) could lead lower courts to expand the statute's scope to reach the very conduct that the Court excluded in Bailey. As a normative matter, the Note argues that an astute definition of "carrying a firearm" should not include storing a firearm which is proximate to and accessible during a drug transaction. Language: en