Showing papers in "Journal of Criminal Law & Criminology in 2019"

“I heard it through the grapevine”: a randomized controlled trial on the direct and vicarious effects of preventative specific deterrence initiatives in criminal networks

Abstract: A rich body of literature exists on deterrence, yet little is known about how deterrence messages are communicated through social networks. This is an important gap in our understanding, because such communication gives rise to the possibility that social institutions can utilize the vicarious effect of the threat of punishment against one individual to reduce the rate of reoffending amongst their criminal associates. To test this, we identified criminals with an extensive offending history (prolific offenders) and their co-offenders using social network analysis and then conducted a randomized controlled trial to measure the effect on both prolific offenders and their cooffenders of delivering a “specific deterrence” message. The treatment— preemptive engagements with prolific offenders by a police officer offering both ‘carrots’ (desistance pathways) and ‘sticks’ (increased sanction threat)—was applied to the prolific offenders, but not to their co-offenders. The outcomes suggest that a single officer–offender engagement leads to a crime suppression effect in all comparisons, with 21.3%, 11.0%, and 15.0% reductions for specific, vicarious, and total network deterrence effects, respectively. The findings suggest that (a) social network analysis based on in-house police records can be used to cartographically understand social networks of offenders, with an aim of preventing crime; (b) deterrence messages promulgated by the police have the capacity to reduce crime beyond what was previously assumed, as the cascading of threats in cooffending relationships carries a vicarious crime reduction impact; (c) unlike “reactive specific deterrence” (i.e., a threat of punishment following a specific and detected crime) which can have perverse effects on certain offenders, preventative specific deterrence is a promising crime policy.

Artificial Intelligence and Role-Reversible Judgment

Abstract: Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to be a meaningful sense in which the participants’ roles in the decisional process could always be inverted. Role-reversibility infuses the act of judgment with a ‘there but for the grace of god’ dynamic and, in doing so, casts judgment as the result of self-rule. After defending role-reversibility in concept, we show how it bears out in the paradigm case of criminal jury trials. Although it was not the historical impetus behind the jury trial—at least, not in any strong sense—we argue that role-reversibility explains some of the institution’s core features and stands among the best reasons for its preservation. Finally, for the sci-fi enthusiasts among us, role-reversibility offers a prescription as to when the legal system will be ready for robo-jurors and robo-judges: when it incorporates robo-defendants.

Measuring change: from rates of recidivism to markers of desistance

Abstract: Reducing the incidence of crime is a primary task of the criminal justice system and one for which it rightly should be held accountable. The system’s success is frequently judged by the recidivism rates of those who are subject to various criminal justice interventions, from treatment programs to imprisonment. This Article suggests that, however popular, recidivism alone is a poor metric for gauging the success of criminal justice interventions or of those who participate in them. This is true primarily because recidivism is a binary measure, and behavioral change is a multi-faceted process. Accepting recidivism as a valid, stand-alone metric imposes on the criminal justice system a responsibility beyond its capacity, demanding that its success turn on transforming even the most serious and intractable of offenders into fully law-abiding citizens. Instead of measuring success by simple rates of recidivism, policymakers should seek more nuanced metrics. One such alternative is readily available: markers of desistance. Desistance, which in this context means the process by which individuals move from a life that is crime-involved to one that is not, is evidenced not just by whether a person re-offends but also by whether there are increasing intervals between offenses and patterns of de-escalating behavior. These easily obtainable metrics, which are already widely relied on by criminologists, can yield more nuanced information about the degree to which criminal justice interventions correlate with positive (or negative) life changes. They also resemble more closely the ways in which other fields that address behavioral change such as education attempt to measure change over time. Measuring the success of criminal justice interventions by reference to their effects on desistance would mean seeking evidence of progress, not perfection. Such an approach would allow criminal justice agencies to be held accountable for promoting positive change without asking them to do the impossible, thereby creating new pathways by which the criminal justice system could be recognized for achieving real and measurable progress in crime reduction.

Mass incarceration paradigm shift?: Convergence in an age of divergence

Abstract: The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm. Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms—dignity, proportionality, legitimacy, and rehabilitation—that have checked draconian prison terms in Europe, Canada, and beyond. In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases. Partly drawing upon the principles in these decisions, twenty-two states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment. The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent—and strikingly similar to those in other Western democracies. Historiography sheds light on why the academy has largely overlooked this relative paradigm shift. As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence. This Article advances a comparative theory of punishment to analyze these developments. In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns. Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy. Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies. They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement. However, American justice appears particularly susceptible to unpredictable swings and backlashes. While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era. Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction. The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction. American justice may cyclically oscillate between repressive or humanitarian aspirations, and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term.

Death with Dignity for the Seemingly Undignified: Denial of Aid in Dying in Prison

Abstract: The medical community has fundamentally changed how we think about life and death. Humans in privileged parts of the world are living longer and have access to life-saving treatment. The focus on quantity of life then has shifted to emphasizing quality of life and questioning whether longevity should at the expense of comfort or satisfaction. The conversation surrounding quality of life, and by extension end-of-life care, has included whether a competent adult has a right, or should have a right to end their own life on their own terms. The history of aid in dying is wrought with political ideology, notions of morality, and discussions of autonomy. In the wake of an aging population, aid in dying is more relevant now than ever. Aid in dying is often supported by notions of autonomy and dignity in choosing the conditions of if, when, and how to end one’s life, however, there is one noticeable segment of the population entirely left out: incarcerated individuals. The incarcerated population is particularly relevant to the aid in dying conversation because, as the justice system continues to balloon and incarcerate more people, prisons are overcrowded, underfunded, and ill-equipped to support terminally ill and aging inmates. This leaves the aging incarcerated population vulnerable. As states continue to contemplate and pass legislation that permits aid in dying in particular circumstances, one is left wondering how, if at all, this legislation will affect those incarcerated. Early signs, in the form of prison policies and regulations, of how prisons will approach aid in dying for qualifying inmates suggests that the same dignitary respect afforded to non-incarcerated folk is explicitly forbidden to inmates in prison. This Comment seeks to answer the question of who may choose to die on their own terms, in their own way. If we find that incarcerated individuals have a right to aid in dying, are there reasons or justifications for why we should not permit it?

Third-Class Citizenship: The Escalating Legal Consequences of Committing a "Violent" Crime

Abstract: For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous—pushing the person into a veritable third-class citizenship. This Article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction. The Article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime. While the Article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

Managing Digital Discovery in Criminal Cases

Abstract: The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions. This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely. In crafting such regulation, courts and legislators can build on the civil procedure model, which has grappled with the challenges of electronic discovery for over two decades. The civil procedure experience suggests that cooperation between the parties, active judicial involvement, and more detailed rules are essential to the effective management of digital discovery. The civil litigation model has its limitations, however, and policymakers must chart new ground to address some of the unique demands of criminal cases. Recognizing the significant resource and bargaining disparities in criminal cases, judges need to limit certain negotiated waivers of discovery so as to prevent abuse. Where the interests of justice demand it, courts may also need to help defendants obtain access to digital discovery in detention or gather digital evidence from third parties. These and other measures can help ensure that the cost and complexity of digital discovery do not undermine the fairness and accuracy of criminal proceedings.

Motus Animi in Mente Insana: An Emotion-Oriented Paradigm of Legal Insanity Informed by the Neuroscience of Moral Judgments and Decision-Making

Abstract: Legal insanity is deeply rooted in an intellectualistic conception of the capacity for moral rationality. The vast majority of insanity standards essentially consider the integrity of the defendant’s cognitive faculties at the time of the offense. However, the cognitivist model of legal insanity collides with the body of neuroscientific and behavioral literature about the critical role of emotions in moral judgments and decision-making processes. Drawing upon this scientific knowledge, this Article reforms the intellectualistic substance of the capacity for moral rationality that underlies the insanity doctrine by including emotions in its relevant psychological set. Hence, it provides a revised model of legal insanity, one that gives more prominence to individuals’ emotional faculties in relation to the crime committed. The analysis highlights that the legal reconsideration of the role of emotions within the capacity for moral rationality turns the insanity defense into a tripartite, more dimensional test—one inclusive of emotional, cognitive, and volitional prongs. Normative arguments in support of the proposed alternative paradigm of legal insanity are illustrated and discussed.

Regulating High-Frequency Trading: The Case for Individual Criminal Liability

Abstract: The popular imagination of securities trading is a chaotic, physical stock exchange—a busy floor with hurried traders yelling, “buy, buy, buy!” While this image is a Hollywood and media favorite, it is no longer accurate. In 2019, most securities trading is conducted electronically on digital markets. One type of trading strategy, high-frequency trading, utilizes algorithms, data centers, fiber optic cables, and supercomputers to obtain an edge in the market. High-frequency trading has leveraged advancements in technology to constitute over half of all trading volume in a given day. High-frequency trading, however, has come under scrutiny in recent years as it has increased market susceptibility to certain forms of criminal conduct. In 2017, the U.S. Court of Appeals for the Seventh Circuit upheld the first conviction of a high-frequency trader for spoofing, a type of trader misconduct that is made more susceptible by high-frequency trading. While scholars have debated whether high-frequency trading should be regulated more than other types of trading and if so, what the regulations might look like, no one has analyzed criminal law as a vehicle to regulate high-frequency trading. This Comment makes the case that individual criminal liability is an ideal tool to regulate misconduct in the high-frequency trading space. Two features of high-frequency trading make the strategy particularly challenging to regulate: 1) it is difficult to draw a line between legitimate and illegitimate behavior in high-frequency trading; and 2) it is difficult to pinpoint an exact definition of what high-frequency trading is. Criminal liability has several advantages over civil liability with respect to these challenges. First, the mens rea component and higher standard of proof required in criminal liability will ensure that high-frequency traders found criminally liable engaged in illegitimate behavior with a higher degree of certainty. Second, the threat of criminal prosecution will better serve the goal of deterring high-frequency trader misconduct. Within the context of criminal liability, individual criminal liability is preferable to corporate criminal liability because the former better furthers the goal of deterrence. The identity problem that corporate liability helps to solve—in some corporate contexts it is impossible to pinpoint culpability on any single individual—is not an issue in high-frequency trading; and individual criminal liability is socially more preferable as a matter of policy. Accordingly, the government should increase criminal enforcement of high-frequency traders to promote its goal of safeguarding market integrity.

The Federal Bank Robbery Act: Why the Current Split Involving the Use of Force Requirement for Attempted Bank Robbery is Really an Exception

Abstract: The Federal Bank Robbery Act had been on the books for seventy years by the time the federal appellate courts began to openly quarrel about the necessary elements of attempted bank robbery under the first paragraph of the Act, 18 U.S.C. § 2113(a). Specifically, the circuits disagree as to whether proof of actual force is required to sustain a conviction of attempted bank robbery, or if attempted force is sufficient for a conviction. Legal scholars have repeatedly framed this split in authority as a consequence of competing methods of statutory interpretation. In this Comment, however, I argue that it is neither a true split, nor the result of competing methods of interpretation. In fact, a close examination of the case law reveals that in those instances where the majority circuits have held that attempted force is sufficient for a conviction, the courts are skipping the statutory analysis altogether. Further scrutiny of the facts in each of the majority cases shows that this non-canonical approach to statutory interpretation—or, more accurately, the absence of an approach—only occurs when certain distinguishing facts are present: (1) foreknowledge of the attempt by law enforcement; and (2) the corresponding opportunity for law enforcement to intervene before somebody gets hurt. As such, I contend the so-called split is more accurately categorized as an exception to the statutorily prescribed actual force requirement, firmly rooted in one of the primary policy considerations behind the passage and current enforcement of the Act: protecting innocent bystanders from harm.

Mens Rea Reform and Its Discontents

Abstract: This Article examines the contentious debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of conduct that is quite common. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes. Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform. Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up—when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants. Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.