Australian Prime Minister Malcolm Turnbull [official website] on Monday proposed new counter-terrorism legislation [press release] that would allow for indefinite detention. Turnbull announced plans to introduce Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, which would allow for the indefinite detention of convicted terrorists who have served their sentences but are still deemed a threat to public safety. According to Turnbull, this would be, "supervised by the courts similarly to the arrangements that apply in a number of our jurisdictions for sex offenders and extremely violent individuals." The legislation would also allow for "control orders" to be placed on individuals as young as 14 years of age and would add a new offense of advocating genocide.
Friday, July 29, 2016
Dov Fox and Alex Stein (University of San Diego: School of Law and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Dualism and Doctrine (Philosophical Foundations of Law and Neuroscience 105-136 (Michael Pardo & Dennis Patterson ed., Oxford University Press, 2016)) on SSRN. Here is the abstract:
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.
This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality.
From The New York Times:
The longstanding official deference to the viewpoint of police officers is enshrined in the laws of some states and Supreme Court rulings. And the ambush attacks that left eight officers dead in Dallas and Baton Rouge, La., this month left many in the country with a jarring sense of the dangers of police work.
But that deference is being questioned in an era when millions of people are viewing footage of police shootings and making their own judgments. As more encounters are captured by surveillance systems, bystanders’ cellphones or officers’ body cameras, the public is scrutinizing, case by case, officers’ decisions to use lethal force. The law’s posture toward the police is being measured against human lives, with the names of the dead becoming watchwords in the national debate over reforming the criminal justice system.
Some lawyers and activists say the legal standards — on top of the circumstances of individual police killings — have contributed to racial tensions and the challenges confronting American policing.
Doug Berman has this post at Sentencing Law & Policy, excerpting the Commission's press release. From the press release:
Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”
Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.
From The New York Times:
The officials charged include Liane Shekter Smith, who led the state environmental agency’s Drinking Water and Municipal Assistance unit until she was fired in February. Prosecutors told Judge Nathaniel C. Perry III of Genesee County that said she withheld information about the severe health risks of using the water after the lead contamination had begun and failed to protect the residents of Flint.
The other Department of Environmental Quality employees charged were Adam Rosenthal and Patrick Cook, water regulators who prosecutors said doctored reports about Flint’s water quality. Mr. Rosenthal was also charged with tampering with evidence related to the levels of lead in Flint’s water.
Also charged were Nancy Peeler, the Early Childhood Health Section manager in the state Health and Human Services Department; Robert Scott, a data analyst for the department, and Corinne Miller, a state epidemiologist. Prosecutors said the three were made aware of a spike in the number of Flint children with elevated lead levels in their blood but concealed the results.
The story is in The Mercury News. In a forum about this case, I argued that there are conditions in which recall would be appropriate. But I agree with the letter's analysis of the details of the case. Its bottom line:
It is possible to imagine a sentence so patently lawless or corrupt, or proving a pattern of bias, that it justifies the conclusion that a judge is unfit. The question is whether this is such a sentence. Although the sentence may be lenient, there is nothing so far to establish that it is lawless, corrupt, or the product of a pattern of bias on the part of Judge Persky.
Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has posted two pieces on juvenile justice on SSRN, the first co-authored with Franklin E. Zimring (University of California, Berkeley) and the second co-authored with Mary Beloff (University of Buenos Aires (UBA) - Faculty of Law). The first is titled One Theme or Many? The Search for a Deep Structure in Global Juvenile Justice (published in Juvenile Justice in Global Perspective (Franklin E. Zimring, Maximo Langer & David S. Tanenhaus eds., NYU Press, 2015)). Here is the abstract:
This chapter uses the global portrait of juvenile justice found in the rest of this volume — that includes chapters on juvenile justice in China, Europe, India, Latin America, Muslim-majority states, Poland, Scandinavia, South Africa, and South Korea and Japan — to discuss possible explanations for the almost ubiquitous existence of separate juvenile courts around the world. After briefly analyzing the role that power, emulation, and structural factors have played in the global diffusion of the juvenile court, we discuss what theory of juvenile courts may underlie their actual practices. We argue that the main function that juvenile courts have performed has been letting juvenile offenders grow up out of crime and that such a function also provides the best justification for the continuing existence of these courts.
Paul Heaton, Sandra G. Mayson and Megan Stevenson (RAND Corporation, University of Pennsylvania Law School and University of Pennsylvania Law School) have posted The Downstream Consequences of Misdemeanor Pretrial Detention on SSRN. Here is the abstract:
In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.
Thursday, July 28, 2016
Robert J. Currie (Dalhousie University - Schulich School of Law) has posted Electronic Devices at the Border: The Next Frontier of Canadian Search and Seizure Law? on SSRN. Here is the abstract:
Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying s.8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada's borders, however, do not reflect this case law. This is a situation made all the more complex by the more generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case as a leaping-off point, this paper explores how s.8 should be applied to searches of electronic devices in the possession of people entering Canada, concluding that an appropriate analysis would impose more robust privacy protection than has been seen to date. It also examines the issue of whether individuals can be compelled to unlock devices or surrender passwords during border searches.
Camelia Simoiu, Sam Corbett-Davies and Sharad Goel (Stanford University, Stanford University and Stanford University) have posted Testing for Racial Discrimination in Police Searches of Motor Vehicles on SSRN. Here is the abstract:
In the course of conducting traffic stops, officers have discretion to search motorists for drugs, weapons, and other contraband. There is concern that these search decisions are prone to racial bias, but it has proven difficult to rigorously assess claims of discrimination. Here we develop a new statistical method --- the threshold test --- to test for racial discrimination in motor vehicle searches. We use geographic variation in stop outcomes to infer the effective race-specific standards of evidence that officers apply when deciding whom to search, an approach we formalize with a hierarchical Bayesian latent variable model. This technique mitigates the problems of omitted variables and infra-marginality associated with benchmark and outcome tests for discrimination. On a dataset of 4.5 million police stops in North Carolina, we find that the standard for searching black and Hispanic drivers is considerably lower than the standard for searching white and Asian drivers, a pattern that holds consistently across the 100 largest police departments in the state.
Doug Berman has this post at Sentencing Law & Policy, excerpting a recent Bloomberg commentary by Noah Feldman. From the excerpt:
In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague. As a result, thousands of convicted felons are now asking courts to have their sentences reduced.
The legal rules for considering such post-conviction requests are tricky and technical. But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle. In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases.
Jennifer L. Doleac, Rasmus Landersø and Anne Sofie Tegner Anker (University of Virginia - Frank Batten School of Leadership and Public Policy, Rockwool Foundation Research Unit and Rockwool Foundation Research Unit) have posted The Effects of DNA Databases on the Deterrence and Detection of Offenders on SSRN. Here is the abstract:
Countries around the world use databases of criminal offenders' DNA profiles to match known offenders with crime scene evidence. The purpose is to ease police detection work and to increase the probability that offenders get caught if they reoffend, thereby deterring future criminal activity. However, relatively little is known about the behavioral effects of this law enforcement tool. We exploit a large expansion of Denmark's DNA database in 2005 to measure the effect of DNA profiling on criminal behavior. Individuals charged after the expansion were much more likely to be added to the DNA database than similar offenders charged just before that date. Using a regression discontinuity strategy, we find that the average effect of the DNA database is a reduction in recidivism. By using the rich Danish register data, we further show that effects are heterogeneous across observable offender characteristics; it is mainly offenders initially charged with violent crime that are deterred from committing new crimes. We also find that DNA profiling has a positive detection effect, increasing the probability that repeat offenders get caught. Finally, we find evidence that DNA profiling changes non-criminal behavior: offenders added to the DNA database are more likely to get or remain married. This is consistent with the hypothesis that, by deterring future criminal behavior, DNA profiling changes an offender’s life course for the better.
Jason Michael Chin (University of Toronto - Faculty of Law) has posted What Irreproducible Results Mean for the Law of Scientific Evidence (35(1), The Advocates' Journal, 17-20, 2016) on SSRN. Here is the abstract:
In 2015 Brian Nosek and several collaborators performed perhaps the most important scientific study of the year, and they did it by attempting to copy the work of others. That is not as contradictory as it sounds, or at least it shouldn’t be.
While the conventional wisdom is that most scientific findings have been vetted and reproduced many times before they reach scientific consensus, the reality is that such rigor is exceedingly rare. Nosek sought to remedy this, wrangling up a group of 270 other researchers (The Open Science Collaboration) and attempting to redo 100 psychology experiments already published in leading peer reviewed journals. The question: would these recreations find the same results as the initial studies? Prior to Nosek’s endeavor, the conventional wisdom was that while published science contains some false positives, they are a small minority and are quickly identified through a robust self-correction process. The conventional wisdom was wrong, and to an extent most never dreamed of – only 36% of the studies were reproducible.
Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis - School of Law and Case Western Reserve University School of Law) have posted Racial Discrimination and Jury Selection on SSRN. Here is the abstract:
In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.
Wednesday, July 27, 2016
A controversy has emerged over how to interpret statutes under which the government can undertake either civil or criminal action against a person. Should courts interpret these statutes like any other civil statutes, and defer to agencies to resolve ambiguities? Or should courts treat these statutes like pure criminal provisions, and use the rule of lenity to resolve ambiguities in a defendant-friendly fashion?
This Essay, prepared for the Missouri Law Review Symposium on "The Future of The Administrative State," explains why the rule of lenity should never apply to the substantive provisions of the income tax laws, even though the government can proceed either civilly or criminally against taxpayers.
This commentary offers a reflection on the state of neuroscientific evidence, as revealed by four empirical studies recently published in the Journal of Law and the Biosciences. I suggest that these studies lead to four broad conclusions about the current state of neuroscientific evidence in criminal courts. First, neuroscientific evidence is being used more than in years past, but still being used quite infrequently. Second, the legal contexts in which neuroscientific evidence is proffered vary widely, both within and across countries. Third, prosecutors as well as criminal defense attorneys are introducing brain evidence. Fourth, differences in legal structures and legal doctrine help to explain some of the variation in the introduction of neuroscientific evidence. In the second part of the commentary, I consider a series of unanswered questions that the studies also raise.
Oxford University Press has just published Doug Husak's book, Ignorance of Law: A Philosophical Inquiry. I highly recommend it, and not just for philosophers. The book defends a much broader scope for a mistake-of-law defense than current law provides, exploring the implications of philosophical accounts of responsibility to make his case. He focuses on the implications of a "reason-responsiveness" theory on the question of whether mistakes of law and fact should be treated symmetrically, concluding in principle that they should. But he does not ignore "quality-of-will" theories, finding that they too suggest an increased scope for a mistake defense. And he pays careful attention to some of the compromises that might be necessary in transforming moral philosophy into legal standards. While some may favor more or fewer compromises, all will benefit from Husak's careful and lucid exploration. And the benefits extend beyond mistake of law, as the book displays the breadth of Husak's knowledge of criminal doctrine. Those unfamiliar with philosophical approaches to criminal law generally will learn a great deal about a wide range of topics.
From The Baltimore Sun:
The startling move was an apparent acknowledgement of the unlikelihood of a conviction following the acquittals of three other officers on similar and more serious charges by Circuit Judge Barry G. Williams, who was expected to preside over the remaining trials as well.
It also means the office of Baltimore State's Attorney Marilyn J. Mosby will secure no convictions in the case after more than a year of dogged fighting, against increasingly heavy odds, to hold someone criminally accountable in Gray's death.
. . .
At a news conference in West Baltimore, near where Gray was arrested, Mosby defended her decision to bring the charges against the officers, and said that "as a mother," the decision to drop them was "agonizing."
. . .
She said there is an "inherent bias" whenever "police police themselves." She said the charges she brought were not an indictment of the entire Baltimore Police Department, but she also broadly condemned the actions and testimony of some officers involved in Gray's arrest or in the department's investigation of the incident — alleging "consistent bias" at "every stage."
From The New York Times:
. . .
But Judge Friedman put restrictions on Mr. Hinckley. He will have to work or volunteer at least three days a week, and if he fails to show up, his absence must be reported to the authorities. He must live with his mother for at least the first year and carry a cellphone that tracks his movements.
The judge forbade Mr. Hinckley from speaking to or contacting the news media, and he can drive unaccompanied only within a 30-mile radius of Williamsburg, although he can also drive by himself to monthly hospital appointments in the Washington area.
Tuesday, July 26, 2016
"District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender"
Doug Berman at Sentencing Law & Policy excerpts this interesting case. From the excerpt:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. . . .
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. . . .
The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.