Saturday, March 8, 2014
Doug Berman at Sentencing Law & Policy discusses the provision. In part:
For a variety of reasons, I expect bills to reform severe sentencing laws like the Justice Safety Valve Act and the Smarter Sentencing Act will continue to get a lot more attention than this Recidivism Reduction and Public Safety Act. But, for a variety of reasons, I think this bill, which may have the broadest support among the most important political players in Congress, could end up being the most important and consequential for helping to transform the nature and future of the federal sentencing system.
Friday, March 7, 2014
As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.
Matthew B. Kugler (University of Chicago - Law School) has posted The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper presents new empirical data that seeks to quantify the privacy interests and expectations of regular people in the context of a border crossing. Courts have previously disagreed about whether travelers understand that their electronic devices are subject to search at the border, and whether such searches are more intrusive than routine examinations of traveler luggage. The data presented here show that, consistent with the view the 9th Circuit recently adopted in its controversial Cotterman decision, ordinary people believe that searches of their electronic devices impinge more on their privacy and dignity interests than do most traditional searches. In fact, survey participants tended to rate electronic searches as being almost as intrusive as strip and body cavity searches. In addition, the overwhelming majority of participants believed that their electronic devices could not be searched at a border crossing unless the customs agent had some level of individualized suspicion, suggesting that current doctrine creates substantial risk of surprise. These data will hopefully serve to shed light on the new issues raised by searches of electronic devices in an era of smartphones, tablets, and cloud computing.
Thomas Crofts and Arlie Loughnan (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted Provocation, NSW Style: Reform of the Defence of Provocation in NSW (Criminal Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Following a high profile and controversial case in which the defendant successfully invoked the provocation defence, the NSW government established a select parliamentary committee to review the defence and its operation. The Committee recommended that the current defence be 'relabelled' a defence of 'gross provocation,' which was structured substantially along the lines of the reform recommended by the Law Commission for England and Wales in 2004. The NSW government has recently responded with a different proposal for a partial defence of 'extreme provocation.' This article critically evaluates the proposed reform of the provocation defence in NSW.
Thursday, March 6, 2014
"Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?"
Doug Berman has this post at Sentencing Law & Policy, excerpting and discussing an AP story. From the excerpt:
Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars. The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.
The underlying study is available here.
Laurie L. Levenson (Loyola Law School Los Angeles) has posted Searching for Injustice: The Challenge of Post-Conviction Discovery, Investigation, and Litigation (Southern California Law Review, Forthcoming) on SSRN. Here is the abstract:
One of the biggest challenges for our criminal justice system today is dealing with post-conviction challenges in state and federal courts. In order to effectively and fairly address these challenges, we need changes in our post-conviction discovery, investigation and litigation procedures. Current procedures often choose finality over accuracy. This paper suggests reforms, including a move toward a more collaborative post-conviction process.
Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness. When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day – people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime. This is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.
The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court. This Article argues that these rights apply with full force in the routine criminal courtroom, in which arraignments, pleas, and sentencings, rather than trials, are taking place.
Kent Scheidegger at Crime & Consequences has this post excerpting and comment on this week's Supreme Court decision. In part:
In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.
Peter Margulies (Roger Williams University School of Law) has posted Evolving Relevance: The Metadata Program and the Delicate Balance of Secrecy, Deliberation, and National Security on SSRN. Here is the abstract:
The NSA’s metadata program, approved by the Foreign Intelligence Surveillance Court (FISC) under § 215 of the USA Patriot Act, has spurred a substantial debate over privacy, secrecy, and democratic deliberation. Critics argue that the bulk collection of metadata is far too sweeping to be "relevant to an authorized investigation" under the statute. Critics also target the secrecy surrounding the FISC’s decisions. That secrecy, critics charge, eviscerated the checks that public deliberation provides. The government has defended the program, arguing that the ability to query metadata with a narrow range of phone numbers specifically linked to terrorism preserves privacy while aiding counterterrorism investigators. Defending the checks and balances in place, the government points to vigorous pre-Snowden questioning of NSA surveillance by engaged legislators, Congress’s reenactment of § 215 in 2010 and 2011, and the FISC’s 2009 remedies for NSA noncompliance.
Matthew Dyson (University of Cambridge - Trinity College Cambridge) has posted Intended Consequences, Suspected Circumstances and the Criminal Law: Pace and Rogers  EWCA Crim 186 on SSRN. Here is the abstract:
Pace and Rogers is a new case on the mens rea for attempt, handed down on 18 February 2014. It interprets the Criminal Attempts Act 1981 (CAA 1981), s. 1(1) to require the defendant charged with an attempt to have intended every actus reus element of the intended offence. This note sets out some different interpretations of it, and what its impact might be. In short, the issue of the mens rea for an attempt had been largely settled since the CAA 1981, requiring only intention as regards the consequences of the crime, and a lower mens rea for circumstances. Now that position may be in doubt, but it is unclear how far the reasoning in Pace will be taken by later courts.
Jason Kreag (University of Arizona Rogers College of Law) has posted Letting Innocence Suffer: The Need for Defense Access to the Law Enforcement DNA Database on SSRN. Here is the abstract:
Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.
Wednesday, March 5, 2014
The D.C. Council voted to decriminalize possession of small amounts of marijuana for personal use on Tuesday, leaving the mayor to sign the bill into law.
If approved by Mayor Vincent Gray, the pot bill will have to weather a congressional review period before going into effect. But according to Washington's WRC-TV, Congress has "rarely used" its powers to veto D.C. laws.
Christopher Slobogin (Vanderbilt University - Law School) has posted Cause to Believe What?: The Importance of Defining a Search's Object -- Or, How the ABA Would Analyze the NSA Metadata Surveillance Program (Oklahoma Law Review, Forthcoming) on SSRN. Here is the abstract:
Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on the object of a search has particularly acute implications in the context of records searches. This article explores the ramifications of this gap in Fourth Amendment jurisprudence both generally and in connection with the NSA’s metadata program, with particular attention to how the American Bar Association’s Standards on Government Access to Third Party Records, the topic of the symposium for which this article was written, resolve the relevant issues.
"The Ninth Circuit convinces U.S. Attorney to vacate conviction, commends her for agreeing to do so"
Will Baude at TheVolokh Conspiracy follows up on his earlier post critical of the Ninth Circuit's berating of an assistant US Attorney at oral argument into confessing error. He notes that the court, contrary to his expectations, did write an opinion detailing the alleged wrongdoing, bu notes that the court never actually says that the conduct was wrongful, and that the opinion will have no precedential effect.
Tuesday, March 4, 2014
David B. Wexler (University of Puerto Rico - School of Law) has posted The International and Interdisciplinary Project to Mainstream Therapeutic Jurisprudence (TJ) in Criminal Courts: An Update, a Law School Component, and an Invitation (Alaska Journal of Dispute Resolution (2014 Forthcoming)) on SSRN. Here is the abstract:
This brief essay describes our international and interdisciplinary project, “Integrating the Healing Approach to Criminal Law,” formally launched as part of the Innovating Justice Forum of HiiL — the Hague Institute for the Internationalisation of Law. The project is an effort to apply principles of therapeutic jurisprudence (TJ) in the ordinary criminal and juvenile law systems, beyond the setting of special “problem-solving courts,” such as drug treatment courts and mental health courts, where TJ is best known.
Adam B. Shniderman (University of California, Irvine - Department of Criminology, Law and Society) has posted No Such Thing as a Sure Thing: Neuroscience, The Insanity Defense & Sentencing Mitigation (The Jury Expert Vol. 26, No. 1, pp. 11-14, 2014) on SSRN. Here is the abstract:
Neuroscience is often hailed as the silver bullet that will radically change the way the courts and individuals perceive criminal culpability. While this has come true to an extent with several Supreme Court decisions regulating juvenile punishment, evidence is less clear with respect to adults. A growing number of empirical studies are being conducted to assess how neuroscientific evidence impacts jury decision making. This article provides insight and guidance for trial lawyers by highlighting the relevant legal, the mixed findings of these published mock jury studies, and that there is no such thing as a sure thing when it comes to offering evidence of neurological dysfunction or impairment.