Law Commons^™

A Behavioral Justification For Escalating Punishment Schemes, Murat C. Mungan

Scholarly Publications

The standard two-period law enforcement model is considered in a setting where individuals usually, but not exclusively, commit crimes only after comparing expected costs and benefits. Where escalating punishment schemes are present, there is an inherent value in keeping a clean criminal record; a person with a record may unintentionally become a repeat offender if he fails to exert self-control, and be punished more severely. If the punishment for repeat offenders is sufficiently high, one may rationally forgo the opportunity of committing a profitable crime today to avoid being sanctioned as a repeat offender in the future. Therefore, partial deterrence …

Mercenary Criminal Justice, Wayne A. Logan

Scholarly Publications

To some degree, money has always figured in criminal justice. Early on, private enforcers of the criminal law received payments for their work. Remuneration played a less explicit but still prominent role in the nineteenth and twentieth centuries as public actors carried out the work of criminal justice. Today, amid significant budget pressures brought on by the Great Recession and the costs of running the nation’s massive criminal justice apparatus, courts and other system actors rely heavily on a growing number of legal financial obligations (“LFOs”) as revenue sources. When this happens, courts and other system actors become mercenaries, in …

Optimal Warning Strategies: Punishment Ought Not To Be Inflicted Where The Penal Provision Is Not Properly Conveyed, Murat C. Mungan

Scholarly Publications

Law enforcers frequently issue warnings, as opposed to sanctions, when they detect first-time offenders. However, virtually all of the law and economics literature dealing with optimal penalty schemes for repeat offenders suggest that issuing warnings is a sub-optimal practice. Another observed phenomenon is the joint use of warnings and sanctions in law enforcement: person A may receive a sanction, whereas person B is only warned for committing the same offense. This situation can be explained through the use of hybrid warning strategies, a concept not yet formalized in the law enforcement literature, where law enforcers issue warnings to x% …

Dirty Silver Platters: The Enduring Challenge Of Intergovernmental Investigative Illegality, Wayne A. Logan

Scholarly Publications

This Essay addresses a longstanding concern in American criminal justice: that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development that has assumed added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.

The Essay offers the first comprehensive examination of this phenomenon …

Informal Collateral Consequences, Wayne A. Logan

Scholarly Publications

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law. Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in …

Rational Criminal Addictions, Manuel A. Utset

Scholarly Publications

No abstract provided.

Inchoate Crimes Revisited: A Behavioral Economics Perspective, Manuel A. Utset

Scholarly Publications

No abstract provided.

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Scholarly Publications

This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.

Response To Comments By Professors Baer, Candeub, Medwed, Painter, And Prentice, Manuel A. Utset

Scholarly Publications

No abstract provided.

Corporate Actors, Corporate Crimes And Time-Inconsistent Preference, Manuel A. Utset

Scholarly Publications

No abstract provided.

Policing Identity, Wayne A. Logan

Scholarly Publications

Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …

Brady, Trust, And Error, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Waiving Innocence, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Don't Say You're Sorry Unless You Mean It: Pricing Apologies To Achieve Credibility, Murat C. Mungan

Scholarly Publications

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature. This is perhaps because apologies are regarded as ’cheap talk’ and are deemed to be non-informative of an individual’s conscious state. In this paper, I develop a formal framework in which one can analyze remorse and apologies. I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere ’cheap talk’ and could send correct signals regarding an offender’s true conscious state, making them credible. This will lead victims, upon receiving apologies, …

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Scholarly Publications

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (1) repeat offenders and first-time offenders, (2) murder and voluntary manslaughter, and (3) remorseful and non-remorseful offenders.

This Article proposes a richer economic theory of crime that captures the rationales behind these practices and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only for the deterrent effect of …

Mcdonald's Other Right, Samuel L. Wiseman

Scholarly Publications

No abstract provided.

"Mosaic Theory" And Megan's Laws, Wayne A. Logan

Scholarly Publications

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational …

Megan's Laws As A Case Study In Political Stasis, Wayne A. Logan

Scholarly Publications

No abstract provided.

Police Mistakes Of Law, Wayne A. Logan

Scholarly Publications

This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts condone seizures based on what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for unrelated, more serious offenses (usually relating to guns or drugs). The Article surveys the important rule-of-law, separation-of-powers, and legislative-accountability reasons supporting continued judicial adherence to the historic no-excuse …

The Adam Walsh Act And The Failed Promise Of Administrative Federalism, Wayne A. Logan

Scholarly Publications

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed …

Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium addressing indigent defense-related issues, examines litigation challenging a Florida law that expressly prohibits courts from granting public defender motions to withdraw on the basis of an alleged conflict of interest caused by excessive caseload or underfunding.

Erie And Federal Criminal Courts, Wayne A. Logan

Scholarly Publications

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addressed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article …

Repeat Offenders: If They Learn, We Punish Them More Severely, Murat C. Mungan

Scholarly Publications

Many legal systems are designed to punish repeat offenders more severely than first time offenders. However, existing economic literature generally offers either mixed or qualified results regarding optimal punishment of repeat offenders. This paper analyzes optimal punishment schemes in a two period model, where the social planner announces possibly-different sanctions for offenders based on their detection history. When offenders learn how to evade the detection mechanism employed by the government, escalating punishments can be optimal. The contributions of this paper can be listed as follows: First, it identifies and formalizes a source which may produce a marginal effect in the …

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …

Reasonableness As A Rule: A Paean To Justice O'Connor's Dissent In Atwater V. City Of Lago Vista, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium dedicated to “great” Fourth Amendment dissents, examines Justice Sandra Day O’Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O’Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the “everyday lives of Americans.” Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck …

The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson

Scholarly Publications

Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.

This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …

Easterday And The Erosion Of The Financial Inability Defense, Steve R. Johnson

Scholarly Publications

Several tax crimes in the code involve failure to pay known or assessed tax liabilities. For generations, there has been controversy over whether a taxpayer’s lack of funds from which to make payment should preclude conviction for those crimes. The potency of the financial inability defense1 has waned over the years. The recent decision of a divided Ninth Circuit panel in Easterday continues that trend, but the defense should still have life in some situations and some courts.

Part I of this report describes the tax crimes to which a financial inability defense may be relevant. Part II discusses Easterday. …

Group-Conflict Resolution: Sources Of Resistance To Reconciliation, Erin O'Hara O'Connor

Scholarly Publications

In the past few years a number of scholars in a variety of intellectual disciplines have contributed to a better understanding of dyadic conflicts and their resolution. In particular, sociologists, psychologists, anthropologists, lawyers, and others have explored the dynamics of apology and its role in deescalating disputes and promoting forgiveness and reconciliation. Furthermore, we have a better understanding today of the benefits to individuals from forgiveness and reconciliation. Victims who are able to forgive their transgressors have better psychological and physical health and lead richer lives.2 Because lawyers tend to focus their attentions on legal disputes, a growing body of …

Using Criminal Punishment To Serve Both Victim And Social Needs, Erin O'Hara O'Connor, Maria Mayo Robbins

Scholarly Publications

The criminal offender often commits two distinct wrongs with each criminal act. First, the offender commits a wrong against the victim, who is left feeling both aggrieved and vulnerable. Second, the offender wrongs society by engaging in conduct that violates social norms, thereby undermining others’ senses of personal security. The two wrongs are often addressed in different ways, and an exclusive or even primary focus on one can interfere with effective redress of the other.

For example, “criminal justice” in early western legal systems often began with vigilante justice, which was left entirely to victims and their allies. Even when …

Discrimination, Coercion, And The Bail Reform Act Of 1984: The Loss Of The Core Constitutional Protections Of The Excessive Bail Clause, Samuel R. Wiseman

Scholarly Publications

No abstract provided.