Law Commons^™

The Effect Of Private Police On Crime: Evidence From A Geographic Regression Discontinuity Design, John M. Macdonald, Jonathan Klick, Ben Grunwald

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Research demonstrates that police reduce crime. The implication of this research for investment in a particular form of extra police services, those provided by private institutions, has not been rigorously examined. We capitalize on the discontinuity in police force size at the geographic boundary of a private university police department to estimate the effect of the extra police services on crime. Extra police provided by the university generate approximately 45-60 percent fewer crimes in the surrounding neighborhood. These effects appear to be similar to other estimates in the literature.

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

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Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

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This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each …

Taming Negotiated Justice, Stephanos Bibas

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After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …

Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson

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Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels

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The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).

XPFs, the subject of this Article, include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the offense, as well …

Plotting Premeditation's Demise, Kimberly Kessler Ferzan

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Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.

This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts …

Attempts, In Language And In Law, Mitchell N. Berman

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On what grounds does the law punish attempted offenses? The dominant answer is that the law punishes attempts to commit an offense precisely because they are attempts (extra-legally), and it is true as a general moral principle that if one should not X, one should not attempt to X. If this is right, then the proper contours of the law of attempts should track the contours of what are attempts (extra-legally). At least to a first approximation, that is, law should track metaphysics. Call this the “Attempt Theory” of attempt liability. Gideon Yaffe’s recent book, "Attempts," is a rigorous and …

Danger: The Ethics Of Preemptive Action, Larry Alexander, Kimberly Kessler Ferzan

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The law has developed principles for dealing with morally and legally responsible actors who act in ways that endanger others, the principles governing crime and punishment. And it has developed principles for dealing with the morally and legally nonresponsible but dangerous actors, the principles governing civil commitments. It has failed, however, to develop a cogent and justifiable set of principles for dealing with responsible actors who have not yet acted in ways that endanger, others but who are likely to do so in the future, those whom we label "responsible but dangerous" actors (RBDs). Indeed, as we argue, the criminal …

Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan

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The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …

Risk And Inchoate Crimes: Retribution Or Prevention?, Larry Alexander, Kimberly Kessler Ferzan

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In this book chapter we give a definition of inchoate crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment …

Domestic Violence Lawmaking In Asia: Some Innovative Trends In Feminist Lawmaking, Rangita De Silva De Alwis

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Domestic violence lawmaking intersects global human rights norms and domestic women's movements. Domestic violence is both a global and local phenomenon. The World Bank argues that domestic violence accounts for one in five lost years in women aged 15-44. The costs range from direct expenses such as medical care and social services to productivity and labor market costs to the psychological toll imposed by the intergenerational transmission of violence. The international women's movement and the international human rights conventions have confirmed that violence in the home is neither a private issue nor a cultural practice. Domestic violence was placed on …

Will The Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code, Kimberly Kessler Ferzan

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No abstract provided.

Introduction: Punishment And Culpability, Mitchell N. Berman

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No abstract provided.

Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson

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No abstract provided.

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

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No abstract provided.

Mobile Phones And Crime Deterrence: An Underappreciated Link, Jonathan Klick, John Macdonald, Thomas Stratmann

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Between 1991 and 2001, crime rates dropped by about a third across all crime categories. We suggest that the introduction and growth of mobile phone technology may have contributed to the crime decline in the 1990s, specifically in the areas of rape and assault. Given that mobile phones increase surveillance and the risks of apprehension when committing crimes against strangers, an expansion of this technology would increase the costs of crime as perceived by forward-looking criminals. We use the available mobile phone data to show that there is a strongly negative association between mobile phones and violent crimes, although data …