Showing papers in "Journal of Criminal Law & Criminology in 2009"

Desistance and the "Feared Self": Toward an Identity Theory of Criminal Desistance

Abstract: This Article develops both a framework for a theory of desistance from crime and an analytical strategy with which to examine desistance. With respect to the former, an identity theory of the desistance from crime that is more cognitive and individualistic than some and more forward-looking than others is sketched out. This framework contributes to and complements existing theoretical arguments by building upon the work of others through integrating several diverse bodies of work that range from social psychology to collective movements in sociology. In this framework, offenders have “working selves” as criminal offenders with a set of preferences and social networks consistent with that self. In addition to the working self, or the self in the present, there is a future, or possible, self that consists both of desires as to what the person wishes or hopes to become (the positive possible self) and anxiety over what they fear they may become (the feared self). Persons are committed to their working self until they determine that the cost of this commitment is greater than the benefits. A perception that one may in fact turn out to become the feared self, a perception assisted by the linking of life failures, or what has been called the “crystallization of discontent,” provides the initial motivation to change the self. This initial motivation brings with it a change in preferences and social networks that stabilize the newly emerging self. This identity theory of desistance can be empirically developed by thinking about it in terms of a structural break in an individual-level time series of offending. This theory

The Criminalization of Poverty

Abstract: The welfare system and the criminal justice system in the United States are becoming ever more tightly interwoven. Scholars, however, have not yet examined the processes involved in these developments and what these developments mean for both the welfare system and for criminal jurisprudence. Many people, including welfare recipients, treat the welfare and criminal justice systems as analytically distinct. As a practical matter, however, the systems now work in tandem.This Article maps the criminalization of welfare. First, this Article describes the social construction of welfare fraud, tracing how "welfare queens" and welfare cheating came to be the targets of considerable governmental attention and resources. The Article then describes the various ways that criminal justice goals and strategies have become embedded in the welfare system, as well as the ways that the welfare system has become a tool of law enforcement. Next, the Article examines the treatment of welfare recipients in the courts, where the poor have been relegated to an inferior status of rights-bearing citizenship, a status on par with parolees and probationers. In the end, the Article encourages more careful policy analysis of these criminalizing practices, proposes a de-coupling of the economic security and crime control functions of the state, and offers recommendations for ensuring the constitutional rights of welfare recipients. Specifically, administrative and criminal procedures must adapt to the transformations in welfare law to ensure that welfare recipients enjoy basic constitutional protections. More research is suggested to measure the unmeasured and the externalized costs associated with the criminalization of welfare.

When is a Police Officer an Officer of the Law?: The Status of Police Officers in Schools

Abstract: A key component of the "school to prison pipeline" is the constant presence of police officers in schools. School resource officers, though employed by the school district rather than the police department, should be treated legally as police officers, requiring them to follow commonly accepted standards of police conduct in investigating and interrogating crime in schools. This approach is better for all players in the school discipline scene: school officials, police officers and, most importantly, students.

Do Executions Lower Homicide Rates?: The Views of Leading Criminologists

Abstract: The question of whether the death penalty is a more effective deterrent than long-term imprisonment has been debated for decades or longer by scholars, policy makers, and the general public. In this Article we report results from a survey of the world’s leading criminologists that asked their expert opinions on whether the empirical research supports the contention that the death penalty is a superior deterrent. The findings demonstrate an overwhelming consensus among these criminologists that the empirical research conducted on the deterrence question strongly supports the

Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing

Abstract: Only the innocent deserve the benefits of the principle of legality. This assertion naturally offends our notions of justice. It would be unacceptable for courts of criminal justice to institutionalize such an approach. Yet, in the context of prosecuting mass atrocities, genocide, crimes against humanity, and war crimes, international criminal courts appear to be resigned to such a principle, if not openly embracing it. Although ranking among the most fundamental principles of criminal law, nulla poena sine lege (no punishment without law) receives surprisingly little attention in international criminal justice. Indeed, that it may be considered the 'poor cousin' of nullum crimen sine lege (no crime without law), which has attracted far greater consideration. Whereas nullum crimen addresses the punishability of the conduct in question, nulla poena deals with the legality of the actual punishment ore penalty itself. Given that they work in tandem as principles of legality, the neglect of nulla poena sine lege is difficult to justify, although not without explanation. As one prominent scholar observes, nulla poena “affects only proven criminals” while nullum crimen “protects the mass of respectable citizens.” While most criminal justice systems have made considerable efforts to close this gap over the years, international criminal justice has not. The potential contribution of nulla poena sine lege has been overlooked on the international level by policy makers, drafters, and judges. Likewise, there exists a lacuna in academic scholarship on this subject. Under-theorization of nulla poena in international criminal justice stalls the maturation in international law of this long standing criminal law principle, keeps dormant its contribution to justice, and challenges the legitimacy of international punishment. This article aims to redress this imbalance by (1) developing the normative content of nulla poena sine lege under international law, (2) critically evaluating the statutes of international criminal courts and their sentencing jurisprudence on genocide, crimes against humanity and war crimes, and (3) advancing a theory for understanding the role and potential contribution of nulla poena to international justice. I argue for an understanding of nulla poena that goes beyond its simple caricature as a principle of negative rights, designed merely to prevent retroactive punishment, to one that captures its full contribution to justice, including equality before the law, consistency in punishment, and legitimacy in international prosecutions. By advancing an international standard for nulla poena sine lege, I hope to lay a foundation on which international sentencing can more readily achieve the goals of the international community in prosecuting and punishing perpetrators of mass atrocities.

Legal disparities in the capital of capital punishment

Abstract: Death penalty opponents charge that wealthy defendants who can hire legal counsel are exempt from capital punishment, but that indigent defendants who receive court-appointed counsel are frequently condemned to death. The critique is based on sensational stories, but anecdotes cannot establish a causal relationship. To explore the issue systematically, the current research examines the impact of legal counsel on the District Attorney's decisions to seek the death penalty and juries' decisions to impose death sentences against adult defendants indicted for capital murder in Harris County (Houston), Texas from 1992 to 1999 (n=504). Harris County is the largest jurisdiction in the nation to use the appointment method rather than the public defender method to deliver indigent capital defense, though by no means the only such jurisdiction. The empirical comparison of hired counsel to appointed counsel in Harris County reveals three central findings: (1) Defendants who hired counsel for the entire case were never sentenced to death; (2) Defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death; (3) Hiring counsel is not the province of the wealthy, as almost all of the capital murder defendants in this study were poor. Though not the focus of the research and a finding that must be considered tentative, the data also reveal that defendants who hired counsel for the entire case were much more likely to be acquitted. To be clear, the findings are not an indictment of appointed attorneys, but rather an indictment Of the structural deficiencies inherent in the appointment method. The research concludes with a call for Harris County-the capital of capital punishment-to establish a Public Defender Office with a specific Capital Defender Office. Though not a panacea, the public defender method comes much closer to the adversarial ideal of evenly matched partisans doing battle to produce justice.

Adolescent Transfer, Developmental Maturity, and Adjudicative Competence: An Ethical and Justice Policy Inquiry

Abstract: Based on the empirical evidence, automatic adolescent transfer to adult criminal court poses significant processing, treatment, and recidivism problems for youths, especially when issues of developmental maturity and trial fitness are brought to the fore. These concerns notwithstanding, legal tribunals increasingly rely on mandated waivers (both legislative and prosecutorial) as a basis to further judicial decision-making whose aim is punishment for serious juvenile offending and the protection of society from such future criminality. This qualitative study examines the prevailing state supreme court and appellate court opinions on this matter. By engaging in textual analysis, both the jurisprudential intent that informs these opinions and the ethical reasoning by which this intent is communicated are

The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence

Abstract: With increasing frequency, the criminal law has been used to punish athletes who act with excessive violence while playing inherently violent sports. This development is problematic as none of the theories that courts employ to justify this intervention adequately take into account the expectations of participants and the interests of the ruling bodies of sports. This Essay proposes a standard for the interaction of violent sports and criminal law that attempts to reconcile the rules of violent sports with the aims of the criminal law.

Off-Court Misbehavior: Sports Leagues and Private Punishment

Abstract: This Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy-from players' unions and commentators alike–especially when a commissioner invokes the "in the best interest of the sport" clause of the professional sports league's constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory-juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports-and analyzes the legal and cultural limitations to this approach.

Deterrence in a sea of 'just deserts': Are utilitarian goals achievable in a world of 'limiting retributivism'?

Abstract: Recent scholarship on theories of criminal punishment has increasingly focused on retributivist justifications for punishment. While within this retributivist camp opinions differ as to the particulars of such policies, there is general agreement that criminals getting what they deserve, that is, their 'just deserts,' should be the underlying goal and rationale of the criminal justice system. From this point, these scholars argue that a criminal should receive punishment according to what the criminal deserves. Some forms of retributivism, however, have attempted to draw support from other theories of criminal punishment. By borrowing elements of other theories, specifically utilitarian theories, scholars have attempted to bolster support for retributivist policies. A particularly well received form of retributivism and the focus of this Comment, 'limiting retributivism,' argues that a range of punishments will fall within the criminal's just deserts, and that utilitarian concepts can alter the punishment within the aforementioned range. This Comment scrutinizes limiting retributivism's appeal to utilitarian theories of punishment to determine if such a system of punishment can achieve many of the outcomes sought by utilitarian theories, specifically deterrence. This Comment argues that the answer to this question, while complex, is ultimately no. I begin my inquiry by expounding on the history of retributive and utilitarian theories of punishment, and the specific concepts of limiting retributivism and what 'factors' exist in determining a criminal's just deserts. Then, I shift focus and analyze the practical effects of these factors in light of recent behavioral psychology and behavioral law and economics research on cognitive biases. Subsequently, I describe why these insights into human psychology and the effects of cognitive biases will actually lead to under-deterrence of criminal activity. I develop this point by acknowledging that while this research also questions utilitarianism's proposal for deterrence through ex ante incentives, the under-deterrence effect of limiting retributivism is far higher than that of utilitarianism. I also highlight why such under-deterrence is fundamentally contrary to utilitarian goals of punishment. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast criminal rules with no appeal to or use of other theories of punishment. I also propose that utilitarians, in collaboration with behavioral law and economics scholars, can further understanding of how the criminal law may incorporate behavioral psychology insights to create more effective ex ante incentives.

Justifying killing in self-defense

Abstract: Based on first appearances, one might think that self-defense is easy to justify. A bad guy threatens to kill you, so you kill him. Enough said. However, once one scratches the surface, self-defense becomes far more complicated. Why is it permissible to kill "the bad guy"? If one is a consequentalist, one must account for how the aggressor's life gets discounted.2 And, if the consequentalist seeks to include deterrent values in the mix (such as discouraging all aggression), then the right to self-defense becomes contingent, ultimately depending on how the math works out in any given case.3 A rights-based approach appears more promising but also quickly runs into difficulties. If the defender has a right to life, so too does the aggressor. What happens to the latter's right? If one thinks that the aggressor "forfeits" his right to life, what explains why the right is

Aces and Eights: Why the Unlawful Internet Gambling Enforcement Act Resides in Dead Man's Land in Attempting to Further Curb Online Gambling and Why Expanded Criminalization if Preferable to Legalization

Abstract: The legalization of Internet gambling is a hotly contested issue among its various supporters and detractors, despite the topic remaining in relative obscurity within criminal law scholarship. Advocates for online poker are particularly vocal in the belief that their activity should be exempt from any form of a gambling ban. Recent academic articles, as well as current legislative proposals, have in fact advocated for an environment where Internet gambling is regulated and taxed by the federal government. This Comment is intended to balance the Internet gambling debate by presenting economic and social arguments against a legalization regime. It also seriously questions whether Internet poker is deserving of an exemption from a gambling ban. Before reaching these issues, this Comment surveys the current focal point of Internet gambling law, the Unlawful Internet Gambling Enforcement Act, as well as other existing and proposed gambling legislation. Ultimately, this Comment concludes that clearly defining "unlawful Internet gambling" and then broadening the criminalization of the activity to reach both operators and participants is a preferable approach to proposals that call for regulation and taxation.

When Human Experimentation is Criminal

Abstract: Medical researchers engaged in human experimentation commit criminal acts seemingly without consequence. Whereas other actors who violate bodily integrity and autonomy are routinely penalized with convictions for assault, fraud, and homicide, researchers escape criminal punishment. This Article begins to scrutinize this under-criminalization phenomenon and provides a framework for understanding why researchers are not prosecuted for their crimes. It argues that their exalted social status, combined with the perceived social benefit of their research, immunizes them from use of the criminal sanction. Whether these constitute sufficient grounds to give researchers a pass from punishment is a significant question because the state's failure to act creates expressive harms. It displays attitudes towards victims and perpetrators that negatively affect the values of autonomy and dignity in medical research. Moreover, alternative sanctions not only lack the same expressive impact, but may also inadequately police criminal harm. This Article concludes that this implicit immunity is harmful to society and inconsistent with criminal law policy.

Protecting Pregnant Women: A Guide to Successfully Challenging Criminal Child Abuse Prosecutions of Pregnant Drug Addicts

Abstract: This Comment is intended to enable advocates for pregnant women to challenge the impermissible and unconstitutional prosecutions of pregnant drug users for criminal child abuse and endangerment. The Comment surveys the history of such prosecutions, and considers the policy justifications for them, before turning to an analysis of the frameworks that state appellate and supreme courts have applied in holding that these prosecutions may not proceed under various state laws. In summarizing the various challenges that may be brought to criminal prosecutions of pregnant drug addicts, this Comment illuminates the strategies that have been successful in previous cases, and offers various notes for those challenging future prosecutions.

The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule

Abstract: This article presents a critical assessment of Herring v United States, 129 SCt 695 (2009), holding the Fourth Amendment exclusionary rule inapplicable whenever "the error was the result of isolated negligence attenuated from the arrest" The opinion of the Chief Justice for the majority is criticized as (1) falsely claiming that cost/benefit balancing is an established basis for selectively applying the exclusionary rule at a criminal trial because of a police violation of the Fourth Amendment; (2) falsely representing that the Court's precedents support the proposition that the exclusionary rule may be selectively applied depending upon the degree of "culpability" attending the Fourth Amendment violation; (3) asserting as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in instances of a negligent violation of the Fourth Amendment has a reduced "deterrent effect"; (4) purporting to cabin the holding by requiring that the negligence also be "attenuated," but doing so only by passing reference and without any explanation of what attenuation means in the instant or any other case or why attenuation is relevant to the critical reduced "deterrent effect" conclusion; and (5) inflicting upon trial and appellate courts new and uniquely difficult tasks to be performed in adjudicating Fourth Amendment claims

Duress and the Underlying Felony

Abstract: In a robbery that turns unintentionally fatal, a person participating under duress would be convicted offelony murder in some states but would have a complete defense to the crime in others This Comment explores the availability of the duress defense for felony murder Six states prohibit the duress defense for all murder, felony murder included Seven states bar the defense for murder generally, but make an exception for felony murder if the duress excuses the defendant's participation in the underlying felony Two states treat duress as a defense for all cases of murder This Comment discusses the background of the felony-murder rule and the duress defense It analyzes the rationales underlying the differing state approaches but finds that denying the duress defense to a coerced actor in a felony murder-regardless of the reasoning-produces unacceptable results Where duress would serve as valid defense to the underlying felony, this Comment concludes that the duress defense should also excuse a coerced actor from liability for felony murder In states that rely upon the common law duress defense, courts should recognize that the common law has evolved to embrace duress as a defense to felony murder Furthermore, courts in those states, which have codified into statute the common law prohibition of the duress defense for all murder, should interpret their statutes to allow the defense by distinguishing felony murder from premeditated murder

The cognitive psychology of mens rea

Abstract: This Article provides a comprehensive-though admittedly speculative-explanation of how jurors use projection and prototyping, two simulation-based theories of mind-reading, to make mental-state attributions in criminal cases. The first two Parts explain why jurors are unlikely to use a functionalist method of mind-reading in a case that focuses on the defendant's mens rea. The next three Parts introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism-perceived similarity between juror and defendant-that determines which one a juror will use in a particular case. The final two Parts explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.

Blue Sky Steroids

Abstract: Performance-enhancing substance use has attracted considerable political and media attention. However, relatively little analysis of the reasons for regulating substance use in professional sports exists. Most of the ostensible reasons for regulating performance-enhancing substance use are belied by leagues' inadequate commitment to the justifications in other contexts. Further, most of the methods of proposed regulation would be ineffective and unworkable. In place of the standard test-and-punish regime advocated by doping authorities, this Essay argues that performance-enhancing substance policy should be modeled after federal and state securities regulation. Instead ofpunishing use, regulators should require disclosure of all substances used, and punish only omissions and fraud of a material nature. The goals of a regulation regime would be better achieved without unintended negative consequences through a market approach based on minimum disclosure requirements.

Mens rea for sexual abuse: the case for defining the acceptable risk

Abstract: The persistence of strict criminal liability for child sexual abuse is attributable, at least in part, to the shortcomings of the existing alternatives, namely, the recklessness and criminal negligence standards. These two standards require juries to define the acceptable level of risk on a case-by-case basis. Juries are ill-equipped to make this calculation in sexual abuse cases, however, and their efforts to do so almost invariably are skewed by evidence of the victim's unchastity. This Article first explores the shortcomings of the recklessness and criminal negligence standards in this setting, and then attempts to develop a viable alternative. Under the proposed alternative, the legislature, not the jury, would define the acceptable risk of sexual imposition. It would calculate this invariant probability threshold in much the same way that juries calculate the acceptable risk in recklessness and criminal negligence cases-by assigning values to the gravity of the potential harm and to the social utility of the conduct. Under this scheme, the jury would be responsible only for deciding whether the risk of sexual imposition exceeded this invariant probability threshold in the defendant's case.

What Can Rico Not Do: Rico and the Non-Economic Intrastate Enterprise that Perpetrates only Non-Economic Racketeering Activity

Abstract: The First and Sixth Circuits Courts of Appeal have split on whether ? 1962(c) of the Racketeer Influenced and Corrupt Organizations Act requires the Government to prove substantial effects on interstate commerce where the defendant commits non-economic racketeering activity and is associated with a non-economic intrastate enterprise. This Comment concludes that while requiring substantial effects on interstate commerce represents a jurisprudential sea change, federal courts should employ a more stringent standard to determine whether an enterprise or the defendant's racketeering activity affects interstate commerce. This Comment also visits the First Circuit Court of Appeals' erroneous application of the principles set forth in the Supreme Court's decision in Gonzales v. Raich to the Racketeer Influenced and Corrupt Organizations Act, and discusses the potential impact of Raich on future RICO decisions.