Announcements

The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.


Table of Contents

The Preventive Detention of Sex Offenders: Law and Practice

Patrick Keyzer, La Trobe University - School of Law
Bernadette M. McSherry, Melbourne Social Equity Institute, Monash Faculty of Law, Melbourne Law School

Identity, Legitimacy and ‘Making Sense’ of Police Violence

Ben Bradford, University of Oxford - Centre for Criminology
Jenna Milani, University of Oxford - Centre for Criminology
Jonathan Jackson, London School of Economics & Political Science - Department of Methodology

Private Prisons and the Marketplace for Crime

andré douglas pond cummings, Indiana Tech - Law School
Adam Lamparello, Indiana Tech - Law School

Systemic Facts: Toward Institutional Awareness in Criminal Courts

Andrew Manuel Crespo, Harvard Law School

The Criminal Justice Black Box

Samuel R. Wiseman, Florida State University College of Law

Values and Assumptions in Criminal Adjudication

Benjamin Levin, Harvard Law School


LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law

"The Preventive Detention of Sex Offenders: Law and Practice" Free Download
38 University of New South Wales Law Journal 792-822
La Trobe Law School - Law & Justice Research Paper Series Paper No. 16-1

PATRICK KEYZER, La Trobe University - School of Law
Email:
BERNADETTE M. MCSHERRY, Melbourne Social Equity Institute, Monash Faculty of Law, Melbourne Law School
Email:

In Australia, as in many other countries, there have long existed various legislative schemes governing ‘dangerous’ offenders, persons considered to be incapable of controlling their sexual instincts and ‘habitual’ criminals. These legislative schemes have been cyclical, falling in and out of favour in response to community concerns and governmental ‘law and order’ policies.

As well as indefinite detention laws for high risk offenders in general, Queensland and South Australia have specific schemes for the indefinite detention of sex offenders. In addition, over the past decade, post-sentence preventive detention and supervision schemes for sex offenders have been enacted in four Australian states as well as in the Northern Territory.

Hundreds of police and corrections officers, social workers, lawyers, psychologists and psychiatrists now work within the preventive detention and community supervision systems that have developed to manage these prisoners and supervisees. As the Queensland regime enters its 11th year of operation, there is considerable interest in how these regimes actually operate in practice, and what each jurisdiction can learn from the experience of others.

This article examines both the law and practice of preventive detention of those considered to be at high risk of re-offending in Australia. It draws on the results of empirical research on the views of those involved in implementing post-sentence preventive detention regimes for sex offenders. The first half of the article provides an overview of current Australian laws on indefinite and preventive detention, outlining three regimes: indefinite detention for ‘dangerous offenders’, special indefinite detention for sex offenders, and post-sentence preventive detention and supervision. It also examines the constitutionality of, and judicial responses to, these schemes.

The second half of the article focuses on the practice of post-sentence preventive detention of sex offenders, presenting the views of professionals who work in the area on what they think are the strengths and weaknesses of these schemes. These views reflect 86 in-depth interviews with police officers, corrective services officials, social workers, lawyers, psychologists and psychiatrists experienced in the operation of the schemes in Queensland, Western Australia and New South Wales. The interviews were conducted as part of an Australian Research Council Discovery Project (DP0877171) entitled Preventive Detention of High Risk Offenders: The Search for Effective and Legitimate Parameters.

The objective of the interviews was to determine how post-sentence prevention and supervision sex offender schemes are working in practice in the states of Queensland, Western Australia and New South Wales. In particular, this article analyses interviewees’ perspectives concerning treatment, resources, accommodation, monitoring of offenders, and breaches of supervision orders.

It is argued that while the legal parameters of preventive detention schemes may be settled, members of the judiciary have cautioned that they must be used sparingly and there is evident judicial reluctance to impose indefinite sentences. Most importantly, the views expressed by those implementing post-sentence preventive detention and supervision schemes reveal that there are serious concerns about their operation.

"Identity, Legitimacy and ‘Making Sense’ of Police Violence" Free Download

BEN BRADFORD, University of Oxford - Centre for Criminology
Email:
JENNA MILANI, University of Oxford - Centre for Criminology
Email:
JONATHAN JACKSON, London School of Economics & Political Science - Department of Methodology
Email:

This paper examines the extent to which police legitimacy and social identity predict public acceptance of police use of force. The study draws upon cross-sectional data from a 2015 survey of a representative sample of adults in England & Wales. Structural equation modeling is used to model conditional correlations between latent constructs. There are two main results. First, identifying more strongly with a social group that the police plausibly represent to people was consistently associated with greater acceptance of police use of force, whether or not that force seemed to be legally justified. Second, beliefs about the legitimacy of the police were associated with acceptance, but primarily in relation only to the use of force in situations where it appeared prima facie justifiable. Results suggest one possible set of reasons explaining why police retain public support in the face of scandals concerning excessive use of force. In terms of originality, this is one of only a very few investigations into (a) the association between legitimacy and public acceptance of apparently illegal or unethical police action and (b) the extent to which identification with a particular social group predicts judgments of police behavior. It is also one of the few papers that has explored the possibility of perverse outcomes arising from procedurally just policing.

"Private Prisons and the Marketplace for Crime" Free Download
Wake Forest Journal of Law & Policy, Forthcoming

ANDRÉ DOUGLAS POND CUMMINGS, Indiana Tech - Law School
Email:
ADAM LAMPARELLO, Indiana Tech - Law School
Email:

A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.

At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice. As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite. Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand. Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity. The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed. Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.

"Systemic Facts: Toward Institutional Awareness in Criminal Courts" Free Download
129 Harv. L. Rev. 2049, 2016
Harvard Public Law Working Paper No. 16-39

ANDREW MANUEL CRESPO, Harvard Law School
Email:

Criminal courts are often required, in the course of implementing existing doctrines of constitutional criminal law, to regulate other institutional actors within the criminal justice system — most notably, prosecutors and police officers. The one-off nature of constitutional criminal adjudication, however, often impedes such regulation, in part by denying courts an opportunity to “see? the systemic features of law enforcement behavior. This mismatch between criminal courts’ institutional task and their institutional capacity has inspired efforts to identify other means of addressing systemic failings of American criminal justice — including calls for a pivot to law enforcement self-regulation as a primary means of constraining state power in the criminal justice arena. The true capacity of criminal courts, however, has thus far been significantly underappreciated. For at an institutional level, criminal courts are not only deeply and serially engaged with the very governmental entities that constitutional criminal law seeks to regulate, but are also constantly collecting — often in a digital format readily amenable to organization, search, and analysis — valuable and detailed systemic facts about how other criminal justice actors operate. This information extends far beyond the truncated transactional horizon of a given case, and thus could allow courts to access a deep internal well of institutional knowledge about their local criminal justice systems. Uncovering the hidden potential of this latent institutional knowledge raises important questions about the opportunities for — and the responsibilities of — criminal courts to collect systemic facts, to analyze them, to make them transparent to litigants and to the public, and to integrate them into the process of constitutional criminal adjudication.

"The Criminal Justice Black Box" Free Download
Ohio State Law Journal, Vol. 77, 2017, Forthcoming
FSU College of Law, Public Law Research Paper No. 805

SAMUEL R. WISEMAN, Florida State University College of Law
Email:

“Big data? — the collection and statistical analysis of numerous digital data points — has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely-dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, no lucrative market for the data (apart from that for background checks) exists to induce the private sector to step in to fill the gap. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box? by uniformly collecting and reporting basic, anonymized data from criminal cases — including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition — would have significant benefits. It would allow researchers, reformers, and government actors to both more effectively study the system as a whole and to more easily identify jurisdictions violating the Constitution by, for example, routinely denying counsel or pretrial release and imprisoning defendants for inability (rather than unwillingness) to pay a fine or fee. This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. While participation in this uniform system is likely to be incremental, even partial data would improve our understanding of the system as a whole and aid efforts to enforce well established, but frequently violated, constitutional rights.

"Values and Assumptions in Criminal Adjudication" Free Download
Harvard Law Review Forum (2016)
Harvard Public Law Working Paper No. 16-41

BENJAMIN LEVIN, Harvard Law School
Email:

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account largely takes for granted the unmitigated benefit of more data and more information. I argue that Crespo’s account understates the indeterminacy of systemic facts and the ways in which data rely on interpreters and interpretations. To the extent our criminal justice system already suffers from the assumptions and biases of judges and other official actors, granting those same actors the ability to interpret a wealth of data or “facts? need not dictate a move toward greater justice or greater accuracy. Rather, it might allow the same actors to reach the same decisions, supported by the same underlying assumptions, but bolstered by a powerful new dataset. Ultimately, systemic factfinding might highlight the problems with criminal courts, but it would not necessarily provide a vehicle for reform or redress.

^top

About this eJournal

Sponsored by: Indiana University Maurer School of Law.


This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

Editor: Joseph L. Hoffmann, Indiana University

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

JEANNINE BELL
Professor of Law, Indiana University Maurer School of Law

PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology [Emeritus] Review Section Editor - Law & Social Inquiry, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Professor of Law and Political Science, SUNY Buffalo Law School

JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law