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Recidivism And Time Served In Prison, Daniel P. Mears, Joshua C. Cochran, William D. Bales, Avinash S. Bhati

Journal of Criminal Law and Criminology

A justification for lengthier stays in prison stems from the belief that spending more time in prison reduces recidivism. Extant studies, however, have provided limited evidence for that belief and, indeed, suggest the effect of time served may be minimal. Few studies have employed rigorous methodological approaches, examined time spans of more than one to two years, or investigated the potential for the relationship between recidivism and time served to be curvilinear. Drawing on prior scholarship, this paper identifies three sets of hypotheses about the functional form of the time served and recidivism relationship. Using generalized propensity score analysis to …

Secular Dissent: Protecting Non-Believers From Coercive Religious Parole Programs, Phillip Grudzina

Journal of Criminal Law and Criminology

It is common practice for states to contract with third party organizations to run their parole rehabilitation programs. A majority of these organizations emphasize religious themes as a means of recovery from alcohol and substance abuse problems. However, for parolees who reject a belief in God, there are rarely any secular alternatives available. Those whom object are often given the choice between forced participation in religious activities or revocation of their parole. For years, courts have held that such practices violate parolees’ First Amendment rights. Nonetheless, most states have failed to implement policies to prevent such violations from reoccurring. Due …

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Journal of Criminal Law and Criminology

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

The Exercise Of Power In Prison Organizations And Implications For Legitimacy, John Wooldredge, Benjamin Steiner

Journal of Criminal Law and Criminology

Extrapolating from Bottoms and Tankebe’s framework for a social scientific understanding of “legitimacy,” we argue that differences in how correctional officers exercise “power” over prisoners can potentially impact their rightful claims to legitimate authority. Given the implications of this argument for the “cultivation” of legitimacy (as discussed by Weber), the study described here focused on (a) individual and prison level effects on the degree to which officers generally rely on different power bases when exercising their authority, and (b) whether more or less reliance on different power bases at the facility level impacts prisoners’ general perceptions of officers as legitimate …

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Journal of Criminal Law and Criminology

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty …

Cinderella Story? The Social Production Of A Forensic “Science”, Gary Edmond, Emma Cunliffe

Journal of Criminal Law and Criminology

The last decade has witnessed unprecedented criticism of the forensic sciences from academic commentators and authoritative scientific and technical organizations. Simultaneously, podiatrists have begun to promote themselves as forensic scientists, capable of assisting investigators and courts in their endeavors to identify offenders. This article traces the emergence of forensic podiatry, particularly forensic gait analysis. Forensic gait analysis is a practice that involves comparing persons of interest in crime-related images (such as CCTV and surveillance recordings) with reference images of suspects, where the primary focus is on movement and posture. It tends to be applied when other techniques, such as the …

Parental Kidnapping, Criminal Contempt Of Court, And The Double Jeopardy Clause: A Recommendation For State Courts, Valerie Brummel

Journal of Criminal Law and Criminology

In states such as Illinois, courts invoke the Double Jeopardy Clause of the United States Constitution to protect parental kidnappers who have already been held in contempt of court from subsequent prosecution under state child kidnapping laws. State courts should not apply the Double Jeopardy Clause to protect parental kidnappers; instead, they should follow the example of the Ohio state courts by recognizing that contempt of court and child kidnapping are not the same crime for double jeopardy purposes. The many differences between the crimes of contempt and parental kidnapping, the disparity between sanctions delivered by the court for contempt …

The Foreign Corrupt Practices Act: Unbridled Enforcement And Flawed Culpability Standards Deter Smes From Entering The Global Marketplace, Stephen S. Laudone

Journal of Criminal Law and Criminology

In the wake of the Watergate Scandal, which exposed a variety of corporate as well as political abuses, the Securities and Exchange Commission (SEC) discovered that a staggering number of large corporations had made questionable or illegal payments exceeding $300 million to foreign government officials, politicians, and political parties. In 1977, Congress passed the Foreign Corrupt Practices Act (FCPA) to curb the negative impact of these corrupt payments on United States foreign policy objectives regarding the promotion of democracy and the free market system.

In the decades since the passage of the FCPA, the government has expanded the use of …

Police Body Cameras In Large Police Departments, Barak Ariel

Journal of Criminal Law and Criminology

Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn …

“Half Cocked”: The Persistence Of Anachronism And Presentism In The Academic Debate Over The Second Amendment, Saul Cornell

Journal of Criminal Law and Criminology

James Lindgren’s recent forward to The Journal of Criminal Law and Criminology’s 2015 symposium on “The Past and Future of Guns,” purports to be a neutral and scholarly account of the current state of the debate on the meaning of the Second Amendment. Lindgren’s introductory essay fails to achieve both of these goals. Rather than survey the pre-Heller scholarship in a comprehensive and even-handed manner, Lindgren provides a distorted and superficial account of the historical literature. He compounds this error by ignoring the vast post-Heller scholarly literature, failing to note that much of this recent body of scholarship has been …

Missing White Woman Syndrome: An Empirical Analysis Of Race And Gender Disparities In Online News Coverage Of Missing Persons, Zach Sommers

Journal of Criminal Law and Criminology

At any given time, there are tens of thousands of Americans categorized as “missing” by law enforcement. However, only a fraction of those individuals receive news coverage, leading some commentators to hypothesize that missing persons with certain characteristics are more likely to garner media attention than others: namely, white women and girls. Empirical investigation into this theory is surprisingly sparse and also limited in multiple ways. This paper aims to fill those voids by empirically exploring whether that inequality, dubbed “Missing White Woman Syndrome,” truly exists. Based on a multi-method approach using Federal Bureau of Investigation data and data culled …

The Eighth Amendment's Milieu: Penal Reform In The Late Eighteenth Century, Erin E. Braatz

Journal of Criminal Law and Criminology

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which …

The Nature And Function Of Prosecutorial Power, Jordan A. Sklansky

Journal of Criminal Law and Criminology

The key to the growing prominence of prosecutors, both in the United States and elsewhere, lies in the prosecutor’s preeminent ability to bridge organizational and conceptual divides in criminal justice. Above all else, prosecutors are mediating figures, straddling the frontiers between adversarial and inquisitorial justice, between the police and the courts, and between law and discretion. By blurring these boundaries, prosecutors provide the criminal justice system with three different kinds of flexibility—ideological, institutional, and operational—and they strengthen their own hands in a legal culture that increasingly disfavors institutional rigidity and hard-and-fast commitments. At the same time, though, the mediating role …

Product Counterfeiting Legislation In The United States: A Review And Assessment Of Characteristics, Remedies, And Penalties, Jeremy M. Wilson Ph.D, Brandon A. Sullivan Ph.D, Travis Johnson, Roy Fenoff Ph.D, Kari Kammel

Journal of Criminal Law and Criminology

Product counterfeiting crimes have detrimental effects on consumers, brand owners, public health, the economy, and even national security. Over time, as product counterfeiting crimes and the response to them have evolved, U.S. federal legislation has developed and state legislation has followed suit, but with considerable variation across the states. The purpose of this article is to place product counterfeiting in the context of intellectual property rights, provide a historical review of relevant federal legislation, and systematically examine the extent to which state laws differ in terms of characteristics, remedies, and penalties. Additionally, we calculate indices of civil and criminal protections …

A Victim Of Abuse Should Still Have A Castle: The Applicability Of The Castle Doctrine To Instances Of Domestic Violence, Cristina G. Messerschmidt

Journal of Criminal Law and Criminology

In light of a nation-wide discussion about expanding self-defense laws, as well as an increased recognition of domestic violence, the phrases “stand your ground” and “retreat to the wall” have taken on entirely new meanings. In cases of domestic abuse, which happen largely inside the home, self-defense laws become more difficult to navigate when victims retaliate against their abusers. Generally, individuals using deadly force against their attackers cannot do so until they “retreat to the wall”—until they do everything possible to safely escape the attack and avoid taking a human life. It is then, and only then, that they are …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Journal of Criminal Law and Criminology

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

The Long Goodbye: After The Innocence Movement, Does The Attorney-Client Relationship Ever End?, Lara A. Bazelon

Journal of Criminal Law and Criminology

Inspired by the Innocence Movement, the American Bar Association has placed an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new rule imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent.

The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in wrongful conviction cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and …

Criminalizing Terrorism In Canada: Investigating The Sentencing Outcomes Of Terrorist Offenders From 1963 To 2010, Joanna Amirault, Martin Bouchard, Graham Farrell, Martin A. Andresen

Journal of Criminal Law and Criminology

Despite having endured significant terrorist incidents over the past 50 years, terrorism-specific offenses were not criminalized in Canada until the implementation of the Anti-Terrorism Act (ATA) in 2001. One of the primary goals of this legislation was to provide law enforcement with the tools necessary to proactively prevent terrorist incidents; however, the effectiveness of these new legal measures in preventing terrorist incidents, and the potential for the increased punishment of offenders sanctioned under them, remains unclear. Using a sample of convicted terrorist offenders (n = 153) from the Officially Adjudicated Terrorists in Canada (OATC) dataset, the current study investigates …

Fulfilling Daubert's Gatekeeping Mandate Through Court-Appointed Experts, Stephanie Domitrovich

Journal of Criminal Law and Criminology

No abstract provided.

Looking Backwards At Old Cases: When Science Moves Forward, Jules Epstein

Journal of Criminal Law and Criminology

Forensic evidence—be it in the form of science-derived analyses such as DNA profiling or drug identification, or in more subjective analyses such as pattern or impression [latent print, handwriting, firearms] examinations—is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in Maryland v. Kulbicki, addresses the inadequacies of the Court’s analysis, and suggests some factors for judges confronted …

Sleuthing Scientific Evidence Information On The Internet, Carol Henderson, Diana Botluk

Journal of Criminal Law and Criminology

No abstract provided.