Showing papers in "Journal of Criminal Law & Criminology in 2015"

Paternal Incarceration and Adolescent Well-Being: Life Course Contingencies and Other Moderators.

Abstract: Parental incarceration has been found to be associated with a wide range of negative outcomes in both childhood and adolescence. This Article uses data from the National Longitudinal Study of Adolescent Health (Add Health) to focus on the conditions under which associations of paternal incarceration with adolescent delinquency and depression are strongest. Paternal incarceration is most consistently and positively associated with adolescent delinquency. Associations of paternal incarceration with adolescent depression are weaker and more contingent on gender and other moderating factors. One important moderator is the respondent's retrospective reports that he or she was physically or sexually abused by a parent or other adult caregiver during childhood. For example, in the absence of sexual abuse, paternal incarceration is associated with higher depression among girls. When coupled with reports of sexual abuse, in contrast, paternal incarceration is not associated with girls' depression, suggesting a potential protective effect. The child having ever coresided with his or her father is also found to moderate associations, with paternal incarceration most strongly associated with delinquency and depression among girls who had ever coresided with their fathers. Examination of the duration and timing of paternal incarceration also pointed to gender differences.

Lawful or Fair? How Cops and Laypeople Perceive Good Policing

Abstract: Legal authorities and the public live in two separate worlds. One world is suffused with law, and the other world is suffused with people’s lived experiences that support their evaluations of fairness. When legal authorities consider whether police policies and practices are desirable, a framework regarding the lawfulness of the relevant policies and practices dominates the conversation. Police departments, their policies, and police officers’ actions are viewed as right or wrong with reference to constitutional standards, as interpreted by prosecutors, judges, and other legal actors. In contrast, we argue that the public is generally insensitive to the question of whether police officers act consistently with constitutional standards. Instead, the public evaluates the propriety of police actions primarily by assessing whether police officers exercise their authority with “procedural fairness.” We rely on the results of an innovative nationwide experimental survey involving respondents from representative American cities, in which each respondent completes a questionnaire and then watches and reacts to three videos of police–citizen interactions. We argue that the actual lawfulness of police action has at best a minor influence on public evaluations of appropriate police behavior. Public judgments about whether police officers should be disciplined for misconduct are largely shaped by people’s procedural justice evaluations.

Some Sources Of Crime Guns In Chicago: Dirty Dealers, Straw Purchasers, And Traffickers

Abstract: In this Article, we seek to help guide law enforcement activities targeting gun acquisition by high-risk people by examining two potentially important sources of crime guns: licensed retail dealers and traffickers. Limited data availability is a key reason more is not currently known about how criminals obtain guns. This Article assembles a unique dataset that combines five years (2009–2013) of crime gun trace requests submitted to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) National Tracing Center (NTC) by the Chicago Police Department (CPD), linked to other CPD data sources about the person who was caught with the gun. From these data, we are able to identify which of the violators are or have been gang members and to compare their guns with those of violators who are not gang members. We focus in particular on how gang members obtain guns, since this population is at the highest risk for shooting someone and for being shot. We hypothesize that gang members may differ from others in how they access guns. This hypothesis could help explain why our earlier work found that the underground gun market as a whole in Chicago is characterized by high transaction costs that keep many

Transforming Piecemeal Social Engineering into "Grand" Crime Prevention Policy: Toward a New Criminology of Social Control

Abstract: This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal approach. We develop a graded framework for selecting responses that acknowledge the local, political, and organizational issues involved in identifying and choosing them. This framework determines when SCP interventions and policies can be crafted on the macro level to eliminate or greatly reduce the problem everywhere, and when interventions should be limited to a piecemeal, local approach to eliminate only the specific problem. Finally, we situate this analysis within the general context of the relationship between science and policy, noting the challenges in converting scientific observations into broad social policy and the expansion of crime control beyond criminal justice into the realm of government regulation and partnerships with nongovernmental agencies.

Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases

Abstract: How many of the terrorism convictions since September 11, 2001 have been the product of entrapment? Some scholars and journalists have suggested that the number is quite high. One report went so far as to claim that only 1% of terrorism prosecutions involve “real” terrorism. The government’s defenders, at the opposite extreme, come close to saying that entrapment in a terrorism case is a contradiction in terms.Little empirical basis exists for evaluating these competing claims. Existing literature on terrorism and entrapment is typically based on detailed discussions of a few egregious cases, rather than systematic analysis of the phenomenon. Yet estimating the prevalence of entrapment is critical for evaluating the ethics and effectiveness of contemporary counterterrorism policies.This Article remedies this dearth of information by creating and analyzing a database of terrorism prosecutions since 9/11 (n=580), and coding each of the cases involving an informant (n=317) for twenty indicators of potential entrapment. An analysis of the database reveals that entrapment indicators are widespread among terrorism cases, and that the most serious cases, involving specific plots to commit attacks, have significantly more indicators. Cases with several indicators account for a sizable proportion of all cases, especially among alleged cases of jihadi and left-wing terrorism. These results show that facts and allegations supporting an entrapment defense are not confined to a small number of cases, but rather are quite widespread in post-9/11 terrorism cases.The Article also examines the suggestion by a journalist that only 1% of terrorism cases have represented a real security threat. It estimates that the proportion of terrorism prosecutions likely to have thwarted genuine terrorism threats is somewhat higher, though still small — about 9% of all jihadi cases and 5% of jihadi cases involving informants.In light of these findings, the Article recommends that authorities rethink current counterterrorism strategies, concentrating on passive surveillance instead of attempts to coax law-abiding Muslims into terrorist schemes, and shifting more resources toward preventing right-wing terrorism. Finally, the Article proposes reforms that would require the government to have a reasonable suspicion of criminal activity before inducing a suspect into committing a crime, and that would base the entrapment defense on the defendant’s realistic likelihood of committing an offense without government prompting.

Correctional education can make a greater impact on recidivism by supporting adult inmates with learning disabilities

Abstract: This Comment brings attention to a group that is overlooked within our prisons—adult inmates with learning disabilities. These inmates currently face challenges in receiving appropriate educational programming. Recognizing that several studies support the proposition that education reduces recidivism, this Comment argues that correctional education programs must make reforms to accommodate adult inmates with learning disabilities in order for education to fully impact recidivism rates

Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research

Abstract: This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists.

Swift, Certain, and Fair Punishment: 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders

Abstract: Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs—the 24/7 Sobriety program in South Dakota and Hawaii’s Opportunity Probation with Enforcement—subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and effective mechanisms for dealing with substance abuse and crime. A few other states have adopted similar regimens, but most have not. The latter jurisdictions should consider creating their own programs based on the South Dakota and Hawaii models

The Posse Comitatus and the Office of Sheriff: Armed Citizens Summoned to the Aid of Law Enforcement

Abstract: The Sheriff's posse comitatus authority to call forth armed citizens to aid law enforcement is deeply rooted in the Anglo-American legal system, originating no later than the ninth century The posse comitatus power thrives in the twenty-first century United States Sheriffs today use their posse comitatus power frequently, sometimes daily This Article describes the historical roots, the modern uses, and the Second Amendment implications of posse comitatus The posse comitatus power does not belong exclusively to Sheriffs, but the power was originally created for them, and they remain the most frequent users Accordingly, Part I of this Article describes the origins and history of the Office of Sheriff This Part explains how the nature of the Anglo-Saxon office provided the foundation for the American sheriff as a constitutional officer, elected directly by the people, and enjoying great independence in the performance of his duties Whereas police chiefs are appointed to their place within (and not at the top of) the chain of command of a city government, sheriffs are autonomous Part II explicates the law and history of the posse comitatus from Anglo-Saxon times to the present The posse comitatus law of the 21st century United States is essentially the same as the posse comitatus law of England during the ninth century The Sheriff in carrying out his duty to keep the peace in his county may summon to his aid the able-bodied adults of the county; the Sheriff has complete discretion about whom to summon and how the persons summoned shall be armed Part III provides a case study of the posse comitatus in modern Colorado Posses have thwarted the escapes of criminals, including serial killer Ted Bundy Posses also serve as citizen volunteers on a regular, structured basis; the assist the sheriffs during county fairs, weather emergencies, and hostage situations, and they perform many other duties The most highly trained posse in Colorado is the Colorado Mounted Rangers, which provides armed assistance to many sheriffs' offices and police departments on an as-needed basis Finally, Part IV considers the relation between the posse comitatus and the Second Amendment The Second Amendment aims to foster a "well-regulated militia," and in furtherance of this purpose, the right of all the People to keep and bear arms is safeguarded The posse comitatus and the militia are not identical, but they overlap and are intertwined to such a degree that the disarmament of the one would inevitably destroy the other One consequence of the Second Amendment was to ensure that the citizenry will be armed so that there can be an effective posse comitatus Accordingly, sheriffs and other officials who have the authority to summon the posse comitatus are intended third-party beneficiaries of the individual right to keep and bear arms Sheriffs have proper third-party standing to defend and advocate for the Second Amendment rights of citizens in their jurisdictions A length Appendix summarizes the posse comitatus and related statutes which presently provide for citizens to be summoned to aid of law enforcement in almost every American state Language: en

Reasonable doubt and moral elements

Abstract: The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly underinclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements. Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard.

Missing the Mark: Gun Control Is Not the Cure for What Ails the U.S. Mental Health System

Abstract: Recent gun control legislation aimed at removing guns from the hands of the mentally ill in order to reduce violence is misguided. In fact, this only contributes to the mistaken belief that there is a direct link between mental illness and violence. This Article suggests that instead, policymakers should be focusing on modifying existing restrictive mental health laws and increasing the funding needed to provide adequate mental health services in the community. Family members, the community, and the individuals themselves must have access to adequate resources and support systems to increase the individual's chance of recovery and stability. In light of recent tragedies, a better solution to reducing gun violence includes offering community programs and preventive training in educational and workplace environments to allow for early detection and practice concentrates in the areas of mental health and health care law. She represents mental health and health care professionals; major hospital systems and community hospitals; institutional and community outpatient programs; skilled nursing facilities; higher education institutions; and individuals and families. She may be reached via e-mail at cwolf@abramslaw.com. intervention. The current system does not support those in need of treatment and only serves to exacerbate the stigma associated with mental illness.

Who Could it be Now? Challenging the Reliability of First Time In-Court Identifications After State v. Henderson and State v. Lawson

Abstract: Despite the recent advances in assessing the reliability of eyewitness identifications, the focus to date has largely been identifications made pretrial. Little has been written about identifications made for the first time in the courtroom. While in-court identifications have an extraordinarily powerful effect on juries, all such identifications are potentially vulnerable to post-event memory distortion and decay. Absent an identification procedure that effectively tests the witness’s memory, it is impossible to know if the witness’s identification of the defendant is a product of his or her original memory or a product of the extraordinarily suggestive circumstances created by the in-court identification procedure. In this article, the authors discuss the science related to memory and perception and how the courts have historically addressed claims of suggestiveness in the context of eyewitness identifications and, specifically, how they have handled first time in-court identifications. They analyze the issue of first time, in-court identifications under the new legal frameworks established by the Oregon Supreme Court in State v. Lawson (2012) and the New Jersey Supreme Court in State v. Henderson (2011), which both recognize 30 years of science proving that memories are malleable and easily influenced by outside forces. They argue that, in all states, first time, in-court identifications should be inadmissible, forcing the state to conduct a reliable out-of-court identification, whether pretrial or with leave during trial.

What is Wrong with Sex in Authority Relations? A Study in Law and Social Theory

Abstract: Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws on Max Weber’s theory of authority to suggest that SAR offenders engage in a novel type of abuse of authority. This abuse involves the overstepping of bureaucratic power into personal relationships and specifically the use of charisma of the office in sexual relations. This new conceptualization calls for a reconsideration of SAR criminalization as sex offenses and paves the way for an alternative regulation based on the notion of abuse of office, which is fundamentally understood as anticorruption regulation.

Prosecutors and Victims: Why Wrongful Convictions Matter

Abstract: Often, discussions of wrongful convictions focus almost entirely on the wrongfully convicted and ignore two important constituencies: prosecutors and crime victims. Both constituencies have unique connections to wrongful convictions and should be recognized as potentially powerful allies for change. Prosecutors are deeply committed to justice and to the outcomes of their cases; they can help identify and correct wrongful convictions and introduce policies to avoid wrongful convictions in the first place. Wrongful convictions matter to crime victims because convicting the wrong person leaves the real perpetrator free to commit more crimes, creates a new, innocent victim, and drains resources that could be devoted to victim services. The authors argue for a broader recognition of the strong interest prosecutors and crime victims have in avoiding wrongful convictions and a more robust role for both stakeholders in the discussion.

Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices

Abstract: The creators of today’s most successful technologies share an important willingness to push the envelope—a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuit of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers. This Article focuses on one type of criminal liability—accomplice liability—that can act as a dragnet on providers of technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. § 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose. This Article examines when the proprietors of technology with criminal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. This Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, file-sharing services, and anonymity networks like Tor. Ultimately, this Article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized—and future rulings on liability for new technologies are best predicted—by looking to the existence of “substantial unoffending uses” for the product or service provided by the accused technologist.