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Benforado on the Geography of Criminal Law

By Lawrence Solum

Adam Benforado (Drexel University - Earle Mack School of Law) has posted The Geography of Criminal Law (Cardozo Law Review, Vol. 31, No. 3, 2010) on SSRN. Here is the abstract:

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

To understand these dynamics, this Article establishes the foundation for a new spatial analysis of criminal law. By casting a wide net and capturing data across a diverse set of fields, this Article uncovers unappreciated but vital parallels, connections, and patterns concerning the ways in which physical space - and the meanings that we attach to spatial elements - affect (1) the proximate decision to commit a crime, (2) the likelihood a given person will become a criminal, (3) the experience of victimization, (4) the way in which policing is conducted, (5) what a crime is and how it is prosecuted, and (6) the consequences of being convicted.

As the first Article in a broader project, this systematic spatial analysis provides the basis for future work dedicated to understanding the origins of our criminal system and assessing whether our current legal structures - from the laws on the books to the practices of police officers to our approaches to punishment - align with our societal needs and values, and, thus, whether the structures we have in place ought to be changed. Instead of building its normative conclusions on geographical analysis alone, the project employs the lens of the mind sciences - including social psychology, social cognition, evolutionary psychology, and related fields - to investigate and explain identified spatial dynamics. This research offers the best hope for unlocking, among other concerns, why our justice system has focused on physically isolating criminals from society; why laws are frequently structured around protecting the physical boundaries of the body, home, and community; why more police shootings occur in certain areas than others; and why we have spatially-embedded laws that become inoperative when an individual leaves a jurisdiction.

Full post as published by Legal Theory Blog on March 23, 2010 (boomark / email).