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Showing papers in "Journal of Criminal Law & Criminology in 2013"



Journal Article
TL;DR: In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options: if she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison as discussed by the authors.
Abstract: In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. This article discusses the study, which involved dozens of college students and took place over several months. The study revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

43 citations


Journal Article
TL;DR: The authors examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment, concluding that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.
Abstract: Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration. For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration. Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole. It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it. This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment. While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation. To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways. First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

43 citations


Journal Article
TL;DR: In this article, the authors argue that separating privacy from security has important practical consequences, and that security flaws should be penalized more readily, and more heavily, than privacy ones, because there are no competing moral claims to resolve, and because security flaws make all parties worse off.
Abstract: Legal scholarship tends to conflate privacy and security. However, security and privacy can, and should, be treated as distinct concerns. Privacy discourse involves difficult normative decisions about competing claims to legitimate access to, use of, and alteration of information. It is about selecting among different philosophies, and choosing how various rights and entitlements ought to be ordered. Security implements those choices – it intermediates between information and privacy selections. This Article argues separating privacy from security has important practical consequences. Security failings should be penalized more readily, and more heavily, than privacy ones, because there are no competing moral claims to resolve, and because security flaws make all parties worse off. Currently, security flaws are penalized too rarely, and privacy ones too readily. The Article closes with a set of policy questions highlighted by the privacy versus security distinction that deserve further research.

20 citations


Journal Article
TL;DR: This article explored the possibility of cultural differences in punitive attitudes and found that people from all three cultures were in agreement about the moral wrongfulness of most baseline crimes, indicating that enhanced American and Canadian punitiveness is not due to an increased sense of moral outrage.
Abstract: The United States has the highest incarceration rate in the world and a more punitive approach to criminal justice issues than comparable Western democracies. One potential explanation for this distinctiveness is that Americans, as individuals, are uniquely punitive toward criminals. The present study explores the possibility of cultural differences in punitive attitudes. Census-representative samples of Americans, Canadians, and Germans were asked to assign sentences to a variety of people who had committed different offenses. Even though Canada has much more lenient sentencing policies than the United States in practice, Americans and Canadians generally did not differ from each other in sentencing attitudes. Both assigned slightly longer sentences than did Germans, however. Americans, therefore, do not appear to be uniquely punitive at the individual level. Also, people from all three cultures were in agreement about the moral wrongfulness of most baseline crimes, indicating that enhanced American and Canadian punitiveness is not due to an increased sense of moral outrage. Institutional explanations for American Exceptionalism in policies are discussed.

15 citations





Journal Article
TL;DR: The authors analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis, concluding that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.
Abstract: This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence. It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing. In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

6 citations




Journal Article
TL;DR: A psychologist, a lawyer, and a shoe salesman attempting to mingle at a cocktail party, and as it will show, psychologists and lawyers have much to discuss.
Abstract: One of us has tacked a cartoon to the office door that shows three elderly gentlemen holding cocktails, obviously ill at ease in each other's company—one looking down, a second glancing up, and a third whose gaze seems adrift. The caption reads, \"A psychologist, a lawyer, and a shoe salesman attempting to mingle at a cocktail party.\" This is obvious hyperbole because, as everyone knows, shoe salesmen can talk to all sorts of people,' and as we will show, psychologists and lawyers have much to discuss.^ Two recent books. Jury Decision Making: The State of the




Journal Article
TL;DR: A critique of this restitution revolution is made in this paper, where the authors argue that instead of restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm.
Abstract: Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment, and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography. Rather than restoring victims and encouraging them to move forward with their lives, restitution roots victims in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution, and proposes several alternative approaches that better identify and address the consequences of child pornography.


Journal Article
TL;DR: In this article, the authors examined the tension between these two positions, both from the standpoint of current U.S. jurisprudence and scholarship, and from the respective purposes of criminal and tort law in deterring and punishing socially-undesirable behavior.
Abstract: Cybercrime is a growing problem in the United States and worldwide. Many questions remain unanswered as to the proper role and scope of criminal law in addressing socially-undesirable actions affecting and conducted through the use of computers and modern information technologies. This Article tackles perhaps the most exigent question in U.S. cybercrime law, the scope of activities that should be subject to criminal sanction under the Computer Fraud and Abuse Act (CFAA), the federal "anti-hacking" statute. At the core of current CFAA debate is the question of whether private contracts, such as website "Terms of Use" or organizational "Acceptable Use Policies" should be able to define the limits of authorization and access for purposes of criminal sanction under the CFAA. Many scholars and activists argue that such contracts should not, because they may result in ridiculous consequences such as the criminalization of misrepresenting one's "desirability" on an online dating website. Critics of such arguments rebut that failing to allow contract-based restrictions opens the door for hackers to engage in many types of activity not otherwise subject to criminal sanction. This Article examines the tension between these two positions, both from the standpoint of current U.S. jurisprudence and scholarship, and from the standpoint of the respective purposes of criminal and tort law in deterring and punishing socially-undesirable behavior. The Article concludes by proposing a legislative revision to the CFAA that substantially mitigates the risk of overbroad criminalization, while leaving intact the ability of the law to deter and punish the most serious acts affecting and utilizing computers.

Journal Article
TL;DR: In this paper, the authors argue that the modern equation of "papers" with "effects" conflicts with both the text and original understanding of the Fourth Amendment, and that Boyd's per se prohibition of seizing papers solely for use as evidence is not historically inevitable either.
Abstract: Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.



Journal Article
TL;DR: In this paper, the authors argue that the modern equation of "papers" with "effects" conflicts with both the text and original understanding of the Fourth Amendment, and that Boyd's per se prohibition of seizing papers solely for use as evidence is not historically inevitable either.
Abstract: Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.

Journal Article
TL;DR: In this article, the mental element of crime and factors of criminal responsibility deterioration are not based on abstract criterion and the analysis of Custom impact on legal concepts and inference of criminal articles clarifies that custom should be taken into account in correct understanding of law and it cannot be denied by lawyers and judges in theory and practice.
Abstract: The principle of Legality leads to the fact that a significant number of jurisprudents consider Custom as one of the guidance resources. The analysis of Custom impact on legal concepts and inference of criminal articles clarifies that custom should be taken into account in correct understanding of law and it cannot be denied by lawyers and judges in theory and practice. This article shows that the mental element of crime and factors of criminal responsibility deterioration are not based on abstract criterion. It also determines Custom role on the above mentioned items. Since the legislator does not define the legal factors of criminal articles, Custom should come into discussion. Moreover public manners in society are utilized as a Custom criterion in evaluation of mental factors leading to criminal behavior. Thus, Custom is considered as a mandatory resource.