Wednesday, August 27, 2014
"America's Lack of a Police Behavior Database Is a Disgrace. That's Why I'm Leading a Team to Build One"
The story is at The New Republic. In part:
Progressive leaders in law enforcement have recently called on researchers at the Center for Policing Equity (CPE) to create the first national database on police behavior. That means we will know how many people are stopped, and how often force is used—and against whom. With the help of the National Science Foundation, the Department of Justice, and several philanthropic associations, the goal is to begin issuing reports from the database two years from now, perhaps even sooner. As a lead investigator of the database and president of CPE, I am excited about the insights we can gain about race and policing once we finally create an honest accounting of the issues. I am, like so many others though, troubled by why it has taken this long to make a plan to fix such a long-lasting problem.
Kent Roach (University of Toronto - Faculty of Law) has posted Be Careful What You Wish for?: Terrorism Prosecutions in Post-9/11 Canada ((2015) 34 Queens Law Journal Forthcoming) on SSRN. Here is the abstract:
The criminal law, particularly in Canada, is significantly more restrained and more just than indeterminate immigration detention accompanied by the threat of deportation to torture and the use of secret evidence not disclosed to the detainee. Nevertheless, this insight does not mean that “charge or release” or the “criminal law solution” does not carry its own fair share of often under-appreciated dangers. Many of these dangers occur at pre and post trial stages of prosecutions that are often ignored in criminal law scholarship. The dangers of the criminal law approach to terrorism examined in this article include widespread use of preventive detention and reverse onuses at bail, a reluctance to use stays of proceedings to provide protection against entrapment of the accused or non-disclosure to the accused of relevant but unused information, legislative overbreadth in creating terrorism offences and the danger of disproportionate punishment of those convicted of terrorism offences that may only have a remote connection to actual terrorist violence.
Brooks Holland (Gonzaga University School of Law) has posted Criminal Procedure in the October 2013 Term: Cell Phones and Some Other Stuff (41 Preview 321 (2014)) on SSRN. Here is the abstract:
This brief article reviews the U.S. Supreme Court's criminal procedure decisions in the October 2013 Term. Cases reviewed include:
- Kaley v. United States (pre-trial forfeiture and the right to counsel).
- Kansas v. Cheever (self-incrimination and mental health examinations).
- Fernandez v. California (third-party consent to search).
- Navarette v. California (anonymous 911 calls and reasonable suspicion).
- Riley v. California (warrantless searches of cell phones incident to arrest).
Deborah Davis and Richard A. Leo (University of Nevada, Reno and University of San Francisco - School of Law) have posted When Exoneration Seems Hopeless: The Special Vulnerability of Sexual Abuse Suspects to False Confession (Ros Burnett, ed., Wrongful Allegations of Person Abuse, Oxford Univ. Press, 2015, Forthcoming) on SSRN. Here is the abstract:
This chapter considers sources of vulnerability among innocent sexual abuse suspects to police-induced false confession. We suggest that sexual abuse suspects may be particularly vulnerable to false confession, primarily as a result of their enhanced sense of hopelessness that they might be believed or be able to establish their innocence. Moreover, we suggest this sense of hopelessness derives largely from two factors: first, their perception of the evidentiary situation they face; and, second, stereotypes associating fathers, step-fathers, priests, boy scout leaders, day care personnel and others with sexual abuse. That is, we suggest sexual abuse claims are often characterized by (1) seemingly credible claims of one or more victims, (2) against a suspect whose social category is consistent with stereotypes of sexual abusers, (3) lack of concrete physical evidence that could exonerate the suspect, and (4) testimony of professional and nonprofessional witnesses in seeming support of the occurrence of the abuse and/or the suspect’s guilt that likewise cannot be refuted by concrete evidence. Sexual abuse suspects may therefore be less likely than most other innocent suspects to expect (a) that their claims of innocence will be believed in the absence of concrete proof of innocence, (b) that there will be a way to prove their innocence, or even (c) that there will be a way to effectively cast doubt on the validity of the alleged victim(s)’ claims of guilt or other apparently abuse supportive testimony. A primary goal of interrogation tactics is to instill in suspects such a sense of hopelessness, which then makes it easier for the interrogator to convince the suspect that confession will result in better legal outcomes than denial. For many sexual abuse suspects this goal may have been effectively met before they enter interrogation.
Tuesday, August 26, 2014
Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and policy. In this online response to their wonderful piece, I discuss four additional problems at the intersection of big data and due process rights: (1) the need for developed electronic discovery rules in criminal cases; (2) the need to reconsider the meaning of Brady v. Maryland and the due process obligations of prosecutors and government agencies in the context of government data; (3) the parallel need to reconsider standards for effective assistance of defense counsel; and (4) the need for broader and better-adapted postconviction electronic discovery and remedies.
This paper develops three observations triggered by Whitman's account of penal modernism; all relate to criminal law in the context of American politics and criminal justice. One suggests why "judicial conscience," which Whitman describes as playing a central role in penal modernism, may be more problematic in the U.S. than Europe. The second speculates that certain barriers to penal modernism in U.S. political and legal culture are less significant than they seem. Finally, I question the extent to which retributivism displaced penal modernism and suggest a lesson this may hold about criminal law theory in the political and policymaking arena.
Christopher N. Lasch (University of Denver Sturm College of Law) has posted Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel (63 DePaul L. Rev. 959 (2014)) on SSRN. Here is the abstract:
In its 2010 decision in Padilla v. Kentucky, the Supreme Court held the Sixth Amendment right to counsel encompasses what can properly be termed the right to effective “crimmigration” counsel — counsel on whether a guilty plea is accompanied by a risk of deportation. But in 2013, the Court took a step back from Padilla. Although most Padilla claims are properly brought after the expiration of direct review, in Chaidez v. United States the Court held Padilla announced a “new rule” of constitutional criminal procedure that would not be retroactively applied to cases already final on direct review. Essentially, Padilla would apply only prospectively, to guilty pleas entered after Padilla’s announcement.
State courts, however, are free to craft their own rules for determining when the violation of a new constitutional rule will entitle a defendant to redress in state postconviction proceedings.
Monday, August 25, 2014
Orin Kerr has this post at The Volokh Conspiracy, discussing a recent district court case holding that the act does not apply but concluding, "As much as I favor narrow readings of the CFAA, I think the court was incorrect. Unfortunately, the CFAA is so broad it includes pretty much every computer, connected to the Internet or not."
Robert E. Wagner (City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law) has posted Criminal Corporate Character (65 Florida Law Review 1293 (2013)) on SSRN. Here is the abstract:
In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.
Rachel E. Barkow and Mark William Osler (New York University School of Law and University of St. Thomas - School of Law (Minnesota)) have posted Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal (University of Chicago Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.
The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.
Sunday, August 24, 2014
From The New York Times:
The parole board wrote to Mr. Chapman, 59, that it had concluded that if he were to be released, he would again break the law.
“This victim had displayed kindness to you earlier in the day,” it added, “and your actions have devastated a family and those who loved the victim.”
At his previous hearing in 2012, Mr. Chapman described how Mr. Lennon had agreed on the day of the killing to autograph an album cover for him. “He was very kind to me,” Mr. Chapman said.
|1||353||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||268||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014
|3||201||Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Scott Cunningham andManisha Shah
Baylor University and UCLA School of Public Affairs
Date posted to database: 19 Jul 2014
|4||132||Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons
Joan Petersilia and Francis T. Cullen
Stanford University and University of Cincinnati
Date posted to database: 24 Jun 2014
|5||132||The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
University of Pennsylvania Law School
Date posted to database: 19 Jul 2014 [6th last week]
Dawinder S. Sidhu
University of New Mexico - School of Law
Date posted to database: 12 Jul 2014 [5th last week]
|7||125||White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence
Lucian E. Dervan
Southern Illinois University School of Law
Date posted to database: 28 Jun 2014
|8||123||Morse, Mind, and Mental Causation
Michael S. Pardo and Dennis Patterson
University of Alabama School of Law and European University Institute
Date posted to database: 17 Jul 2014 [9th last week]
|9||118||State Law Reporting and Disclosure Mandates Under ERISA
Law Offices of Albert Feuer
Date posted to database: 16 Jul 2014 [8th last week]
|10||104||The Combatant's Privilege in Asymmetric & Covert Conflicts
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 31 Jul 2014 [new to top ten]
Saturday, August 23, 2014
Thousands of American cities and towns are responding to social problems like bullying, drug abuse, and criminality by passing ordinances that hold individuals responsible for the wrongful acts of their family members and friends. For example, parental liability ordinances impose sanctions on parents when their children engage in bullying or other targeted behaviors; mandatory terms in rental housing leases require the eviction of tenants whose family members, friends, or guests engage in unlawful acts; and nuisance ordinances require evictions when a threshold number of calls to police is exceeded, even though calls are often related to another person’s wrongful or abusive behavior.
Cities typically rely on home rule authority to pass these ordinances, and these ordinances in turn create new “home rules” for the households affected. These new home rules are a form of third-party policing, and through them, the city is becoming an increasingly significant player in governing families and regulating intimate spaces.
Friday, August 22, 2014
Scott J. Glick has posted Consequence, Weapons of Mass Destruction, and the Fourth Amendment's 'No-Win' Scenario (Indiana Law Journal, Vol. 90, No. 1, 2014) on SSRN. Here is the abstract:
What is the role that consequence should play in a Fourth Amendment analysis? Should our view of reasonableness be affected by the nature of the consequence that the government seeks to prevent, such as stopping a terrorist from using a weapon of mass destruction (WMD)? While some may consider the use of a WMD by a terrorist to be a plot for an action movie, since the September 11, 2001, attacks, there have been increasing indications that malicious actors or organizations are attempting to obtain a WMD in order to cause massive devastation or catastrophic loss of life. Aside from advancements in technology that may enable the government to deploy an effective system of WMD sensors in the future, one of the most effective methods that the government could employ to locate a suspected terrorist who intended to use a WMD in an American city would be to monitor the terrorist’s communications.
But what if the government did not know the specific telephone or e-mail account that the suspected terrorist was using, even though it had specific and credible information that he intended to assemble and use the WMD sometime within the next 30 to 45 days?
This Article examines and evaluates an increasingly popular account of the Mistake of Law doctrine. Deeply ingrained in American criminal law, the doctrine is notoriously unclear in its scope, content, and application. A growing number of legal theorists have criticized its traditional Holmesian account; legal moralists in particular have argued that this account is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as effectively as a negligence regime otherwise would, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism Holmes’s general jurisprudence.
Kent Scheidegger has this post at Crime & Consequences, commenting on a recent Ninth Circuit case reversing a district court's habeas grant without deciding whether innocence without an accompanying constitutional violation can justify relief. He suggests that the Ninth Circuit's conclusion that innocence had not been shown is a common pattern in the cases raising the issue.
Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “Read up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass.
Thursday, August 21, 2014
Typically, a DUI stop may include an officer administering a series of field sobriety tests followed by a breath test to measure a driver's blood alcohol concentration (BAC) if the officer suspects the driver is under the influence of alcohol.
However, some drivers may refuse to undergo the test, opting instead to take the penalty for refusing to submit to a BAC test, which in many states includes an automatic loss of driver's license. That's where the "No Refusal" Weekend program comes into play.
During a DUI "No Refusal" Weekend, law enforcement will require drivers who refuse breath tests to submit instead to a more intrusive blood test -- in essence, eliminating their ability to refuse to have their BAC measured. How does this work?
. . .
According to NHTSA, the "No Refusal" Weekend program works by facilitating the availability of judges and magistrates to speedily sign warrants, allowing for the blood draws to occur.