Thursday, September 3, 2015
From The New York Times:
The Justice Department will regularly require federal agents to seek warrants before using secretive equipment that can locate and track cellphones, the agency announced Thursday, the first regulations on an increasingly controversial technology.
. . .
The device, commonly called a cell-site simulator or StingRay, tricks cellphones into connecting with it by acting like a cell tower, allowing the authorities to determine the location of a tracked phone. In doing so, however, the equipment also connects with all other phones in the area, allowing investigators to collect information on people not suspected of any crime.
The device is also capable of capturing calls, text messages, emails and other data. Until Thursday’s regulations, the rules for the use of that information and the duration it could be kept had not been detailed and varied across the department’s offices and agencies.
The story is at Jurist:
The Association of State Correctional Administrators (ASCA) [official website], in partnership with the Arthur Liman Public Interest Program at Yale Law School[website] released [press release] a report [PDF] Wednesday estimating that between 80,000 to 100,000 prisoners were in what correctional officials call "restrictive housing" in 2014. The survey defined solitary confinement as holding an inmate separate from the general population for 22-23 hours a day for 30 days or more. The groups emphasized the continued need for prison officials to set time limits on the amount of time a prisoner can be held in solitary confinement and creating a more formal policy of sentencing an inmate to solitary confinement.
Peter K. Westen (University of Michigan Law School) has posted Retributive Desert as Fair Play (Kimberly Ferzan & Stephen Morse, Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford: Oxford University Press, 2015)) on SSRN. Here is the abstract:
The moral intuition that culpable wrongdoers deserve to suffer is so strong and pervasive that some advocates of retributivism, including Michael Moore, base their positions entirely upon it. Yet, given the enormity of state-imposed punishment, it is incumbent upon students of punishment to seek broader principles of justice by which such intuitions can be explained. The moral principle that I believe most plausibly explains and justifies criminal desert is Herbert Morris’s theory of unfair advantage. I argue that commentators have failed to address Morris theory in its strongest possible form and failed to examine critically the arguments against it. Morris’s theory not only supplies normative content to intuitions of desert, it also reveals that ‘paying back a debt’ -- the original meaning of the Latin retributio -- is not a “faded and dead metaphor,” as Michael Moore asserts, but an apt description of what it is to deserve suffering for culpable wrongdoing.
Jose M. Fernandez , Stephan Gohmann and Joshua C. Pinkston (University of Louisville - Department of Economics , University of Louisville - College of Business - Department of Economics and University of Louisville) have posted Breaking Bad: Are Meth Labs Justified in Dry Counties? on SSRN. Here is the abstract:
This paper examines the influence of local alcohol prohibition on the prevalence of methamphetamine labs. Using multiple sources of data for counties in Kentucky, we compare various measures of meth manufacturing in wet, moist, and dry counties. Our preferred estimates address the endogeneity of local alcohol policies by using as instrumental variables data on religious affiliations in the 1930s, when most local-option votes took place. Alcohol prohibition status is influenced by the percentage of the population that is Baptist, consistent with the “bootleggers and Baptists” model. Our results suggest that the number of meth lab seizures in Kentucky would decrease by 24.4 percent if all counties became wet.
Susan Yeh (George Mason University School of Law) has posted Revealing the Rapist Next Door: Property Impacts of a Sex Offender Registry (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
How do homebuyers respond to perceived crime risks about sex offenders in the neighborhood? I evaluate local property and crime responses to Internet sex offender registry listings. Among more permanent listings, a nearby offender depresses house prices by up to 4 percentage points. I document that the majority of registered sex offenders are transient, with durations of less than 6 months at an address. While a growing literature suggests that housing stability is important in reducing criminal behavior, the market perceives heightened crime risks to be attached to the listings of registered offenders with more stable housing, but not to those who are transient or who have moved away. Prices correspond more strongly to long-term offender locations than to locations of actual sex crimes. I find small, localized reductions in rapes involving weapons within 0.1 miles of offender addresses and increases in sex crimes farther away.
A trope heard throughout criminal justice circles today is that the system is a dystopia. Although most of the discussion and proposed remedies have centered on sentencing or release, this article focuses on clemency, which has become a controversial subject. The last few Presidents have rarely exercised their pardon power or have used it for ignoble reasons. The former withers the clemency power; the latter besmirches it.
President Obama sought to kick start the clemency process through the Clemency Project 2014, which sought to provide relief to the 30,000 crack cocaine offenders unable to take advantage of the prospective-only nature Fair Sentencing Act of 2010. That initiative, however, is unlikely to jump-start the clemency power since it is quite limited — to drug offenders unable to benefit from the new crack-to-powder sentencing ratio. But the vast expansion in the size of the federal correctional system, combined with the corresponding increase in the costs of federal corrections, may spur the president to renew his resort to clemency. If so, the question becomes, How?
Wednesday, September 2, 2015
Colin Miller has this post at EvidenceProfBlog. In part:
Under this procedure, CrimeStoppers tip information would be given to the judge to review in camera. If the judge thought that this information contained possible Brady material, he would turn the information over to the defense. If the judge thought that this information did not contain possible Brady material, it would be returned to the State. Interestingly enough, this is the exact procedure followed in Texas.
"Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress"
Doug Berman has this post at Sentencing Law & Policy. In part:
I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.
As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.
Jeffrey Fagan , Anthony A. Braga , Rod K Brunson and April Pattavina (Columbia Law School , Harvard University - Harvard Kennedy School (HKS) , Rutgers, The State University of New Jersey- Rutgers University, Newark and University of Massachusetts Lowell) have posted Stops and Stares: Street Stops, Surveillance and Race in the New Policing on SSRN. Here is the abstract:
The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local social and crime conditions. In this article, we examine racial disparities under a unique configuration of the street stop prong of the “new policing” – the inclusion of non-contact observations (or surveillances) in the field interrogation (or investigative stop) activity of Boston Police Department officers.
Marc Edelman (City University of New York - Baruch College, Zicklin School of Business) has posted Speech: The Legal Status of Fantasy Sports in a Changing Business Environment (Northern Kentucky Law Review, 2015) on SSRN. Here is the abstract:
This speech discusses how the United States has moved in such a short period of time from an era where "daily fantasy sports" contests had been seen as similar to illegal sports gambling into an era in which one cannot turn on a television set to ESPN without seeing commercials for one-day fantasy sports leagues. This speech also discuss perceptions of the legality of "daily fantasy sports" under both state and federal law. As explained throughout this speech, the legality of "daily fantasy sports" indeed is not a one-size-fits-all solution. Rather, whether a given fantasy sports contest is legal depends on the individual contest's game rules and states of operation.
Scott Howe (Chapman University, The Dale E. Fowler School of Law) has posted Moving Beyond Miranda: Concessions for Confessions (Northwestern University Law Review, Vol. 110, Forthcoming) on SSRN. Here is the abstract:
The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, intelligent, and voluntary decisions. States could promote these outcomes by providing valuable sentencing concessions to those who confess.
Law enforcement officials have tremendous discretion to determine the amount and style of policing that occurs in their jurisdiction. These decisions — concerning whom to police and how much — are primarily matters of distributive justice, and are made at the level of the police department rather than on the street. These departmental decisions spread a variety of important social resources across communities, as well as imposing certain burdens on those communities as part of the prevention or investigation of crime.
The police decide to apportion social resources through making policy, just as any other administrative agency concerned with resource-allocation might. Yet these policy decisions are mostly unregulated by the courts, and (unlike other some other agencies) closed to public input.
From The New York Times:
More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier. In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.
Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing. Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.
Tuesday, September 1, 2015
From The New York Times:
One day after a bystander’s cellphone video was released that appeared to show sheriff’s deputies fatally shooting a Hispanic man who had his hands raised in surrender, officials here voted Tuesday to finance additional body cameras for deputies out in the field, as Latino activists, lawmakers and civil rights groups continued to question and condemn the shooting.
. . .
Mr. Flores, shirtless and pacing in the yard outside a home in the video, appears to raise his arms as the officers approach. Seconds later, he is shown falling to the ground after being shot by both deputies. A utility pole obstructs the view of Mr. Flores’s left arm in the moments before the shooting. But Michael Thomas, the bystander who recorded the video and supplied it to KSAT, said Tuesday that Mr. Flores had both arms raised and did not appear to be making threatening moves toward the deputies.
The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.
Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.”
Jonathan J. Koehler (Northwestern University - School of Law) has posted Communicating Probabilistic Forensic Evidence in Court (Forthcoming, In Allan Jamieson & Scott Bader (Eds.). A Guide to Forensic DNA Profiling. John Wiley & Sons, Ltd. Chichester, UK) on SSRN. Here is the abstract:
This chapter examines the different ways that forensic science matches may be characterized at trial and how jurors think about those matches. The focus is on common but erroneous match characterizations, and misconceptions jurors may have about the meaning of a match. There is also discussion about the significance of error rates and how presentation of match statistics affects jurors’ beliefs about the strength of the evidence. A final section counsels forensic scientists to avoid mischaracterizing the strength of match evidence and to be forthcoming about the assumptions behind the statistics they offer.
Cheryl Nelson-Butler (Southern Methodist University - Dedman School of Law) has posted Bridge Over Troubled Water: Safe Harbor Laws for Sexually Exploited Minors (North Carolina Law Review, Vol. 93, No. 1281, 2015) on SSRN. Here is the abstract:
This Article contributes to the emerging legal scholarship on child sex trafficking by exploring the impact and the potential of recently enacted safe harbor laws. Scholars have already begun to explore the need for new legal responses to domestic child sex trafficking. But, few scholars have explored whether state safe harbor laws are consistent with emerging best practices and model legislation such as the Uniform Act on Prevention of and Remedies for Human Trafficking. Thus, several key questions remain ripe for scholarly debate. For example, do safe harbor laws effectively shift the paradigm from punishment to protection of sexually exploited minors? Do state safe harbor laws represent a new and improved legal approach to child prostitution? Do these safe harbor laws adequately protect sexually exploited children from further exploitation?
This Article argues that, while safe harbor laws for prostituted minors have great potential to protect sexually exploited minors in the United States, “prosecution-based models,” such as the New York Safe Harbour for Sexually Exploited Minors Act (“NYSHA”), fail to address some of the key public policy goals behind safe harbor laws.
Monday, August 31, 2015
The Law Commission of India [official website] has recommended [report, PDF] that the death penalty be abolished as a mode of punishment for all crimes except terrorism. This is the first time the Commission has addressed the death penalty since 1967, when they recommended the retention of the death penalty in India. The Supreme Court of India [official website] has upheld the death penalty in the past, though they have restricted it to "the rarest of rare cases, to reduce the arbitrariness of the penalty." In their concluding remarks, the Commission stated that "[t]he death penalty does not serve the penological goal of deterrence any more than life imprisonment," which, in India, truly means imprisonment for the duration of one's life. Further, in singling out acts of terrorism as those punishable by the death penalty, the Commission noted that there are many concerns that the abolition of the death penalty for these crimes will affect national security. Reasoning that the death penalty diverts attention from other problems infecting the criminal justice system, transforming retribution into vengeance. "The notion of an eye for an eye, tooth for a tooth has no place in our constitutionally mediated criminal justice system."