Tuesday, September 8, 2009
James B. Johnston (Seton Hall University - School of Law) has posted Drugs, Dogs, and the Fourth Amendment: An Analysis of Justice Stevens' Opinion in Illinois V. Caballes on SSRN. Here is the abstract:
When a drug dealer delivers illegal narcotics to the American market place, he frequently uses our nation's roadways. In an opinion authored by Justice John Paul Stevens and captioned Illinois v. Caballes, the U.S. Supreme Court held that a drug dealer does not have a reasonable expectation of privacy in delivering illegal drugs that is detected by a drug sniffing dog from the drug dealer's car. The article argues that we as a society have a right and an obligation to protect ourselves from drug abuse and drug traffickers. Justice Stevens' opinion provides a brilliant examination of judiciap precedent coupled with common sense. Caballes provides a balanced approach by providing law enforcement with a case that allows our police and prosecutors to fairly and effectively bring drug traffickers to justice
That's the title of Orin Kerr's helpful post over at The Volokh Conspiracy. The bottom line(s) (after substantial analysis):
First, the rejection of absolute immunity seems right. Second, the Fourth Amendment holding seems possible but rather unlikely, and in general misses the key legal question raised by the case. Third, I think the qualified immunity analysis is clearly incorrect.
The connection is illustrated in a recent Wall Street Journal article, Legal Prostitution under Pressure in Rhode Island:
All forms of prostitution were illegal in the state until 1980, when legislators -- while amending the existing law to speed up prosecution -- inadvertently deleted the section that addressed the actual act of prostitution. The result was that the only thing that remained illegal was street solicitation, since police mostly use anti-loitering laws to arrest streetwalkers.
This legal loophole went unnoticed and police weren't thwarted until 2003, when Providence lawyer Michael Kiselica was representing sex workers in a case before the state district court here. He acknowledged to a Providence city prosecutor that the women had offered sex for money to undercover police but asserted no state law was broken. The case was dismissed.
State legislators have tried to restore the law for years, but fell short in the face of opposition by some lawmakers, civil libertarians and academics, who said that allowing the arrest of prostitutes could end up punishing victims of human trafficking.
Teachers of criminal procedure are familiar with "prophylactic rules," and teachers of substantive criminal law are familiar with what are sometimes called "nonconsummate offenses" (like possession offenses). Samuel Bray (Associate-in-Law, Columbia Law School) argues that these rules are part of a broader category of rules in his interesting manuscript entitled Power Rules (Columbia Law Review, forthcoming). He also notes other kinds of "power rules" that can serve as complements or alternates to criminal prohibitions targeted at wrongdoers.
Bray identifies the advantages and disadvantages of such rules as a general matter. Here is the abstract:
This Essay offers a unified framework for understanding how law can protect a vulnerable person from a powerful one. One option law has is to penalize the powerful person if she harms the vulnerable person. But sometimes law shifts its focus from regulating the infliction of harm to regulating a person’s accumulation of power to inflict harm. Legal rules that reflect this shift in focus can be called “power rules”; they expressly restructure underlying relations of power and vulnerability. Power rules are attractive because they allow legal regulation of situations in which rules directly regulating harm (“harm rules”) are not possible. In other situations, power rules can complement harm rules and improve their effectiveness. But power rules have drawbacks, too: they tend toward overbreadth, encourage more use of expressive lawmaking, and increase enforcement discretion. The concept of power rules helps explain patterns in the use of legal rules, at least in the legal system of the United States, and it illuminates the trade-offs involved when lawmakers choose among different methods of protecting vulnerable persons.
Monday, September 7, 2009
If you want to introduce your students to the range of issues involved in considering the wisdom of victim impact statements, a recent manuscript by Paul G. Cassell (University of Utah - S.J. Quinney College of Law) titled In Defense of Victim Impact Statements (Ohio State Journal of Criminal Law, Vol. 6, No. 611, 2009) would do the job nicely, and for some of us at least, would give plenty with which to disagree. Here is the abstract of the article on SSRN:
This paper provides a comprehensive justification of "victim impact statements" in criminal sentencing, explaining how such statements are important to crime victims and how the critics of such statements fail to grapple with the need for these statements to victims.
Those who believe that punishment should be pegged to the harm that the wrongdoer foresaw—for either retributive or utilitarian purposes—will disagree with some of the asserted benefits of victim impact statements. When they surface new information for the court, it will usually be nonobvious precisely to the extent that we would not have expected the wrongdoer to anticipate it.
I was also interested in Professor Cassell's effort to save victim-impact statements from some of their critics by claiming that the statements have little effect on sentence severity. This argument is in substantial tension with some of the arguments that Professor Cassell makes in favor of the right to give such statements. But one also wonders what victims would think of this description. Certainly, the victim Professor Cassell profiled in his piece wanted to address the court to advocate for "the maximum sentence." How many victims, if told that these statements are primarily therapeutic, would want to make them; how many, if told that after the fact, would feel that they had been victimized a second time?
On the positive side, I enjoyed Professor Cassell's line, "As one federal district court judge put it, '[E]ven if a victim has nothing to say that would directly alter the court's sentence, a chance to speak still serves important purposes. . . . '[Victim] allocution is both a rite and a right.'" When you look down at the footnotes, you see that he's quoting a case from Utah, and when you look it up, you see that it is a case that he authored while serving on the federal bench. It reminded me of when Rickey Henderson played for the Padres and, when interviewed, referred to himself in the third person.
James B. Johnston ( Seton Hall University - School of Law) has posted Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition of the Death Penalty and Convincing Other States to Follow Suit (Notre Dame Journal of Legislation, Vol. 34, No. 1, 2008) on SSRN. Here is the abstract:
For those who detest capital punishment Christmas arrived early in 2007. On December 17 of that year, New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel appointed by the Governor to study capital punishment anf provide its findings to the legislature and Governor. The Commission's report recommended that New Jersey abolish capital punishment. The objective analysis of both sides of the capital punishment debate makes this report the most credible piece of work on the death penalty in years. This article provides an objective step by step analysis of the Commission's report. It also provides a blueprint for other States who wish to follow suit by executing capital punishment.
Sunday, September 6, 2009
On Tuesday and Wednesday of this past week, Justice Scalia taught classes and otherwise interacted with students and faculty at the law school. The highlight was a large public event, attended by over 600 students and members of the community, on "Originalism in Recent Supreme Court Cases." Justice Scalia discussed three recent cases and then took questions from a panel of faculty.
Regarding the Court's Second Amendment case, Heller, Professor Steve Smith mentioned the criticism offered by even some of Heller's supporters that the majority opinion does a much better job of making the originalist case for gun possession than it does for the exceptions the Court appears to recognize—for example, possession of guns by felons and the insane. Justice Scalia said that the "exceptions" were not critical to the holding, and thus did not demand the same level of justification. Moreover, he suggested that they are likely to be "easy" originalist positions to justify. If the historical penalty for a felony was death, then he suggested that it is permissible to impose the lesser sanction of letting the felon live but not possess a firearm; similarly, if a person could be institutionalized, the state should be free to let the person remain at large so long as he or she is unarmed.
In the discussion of the Court's Boumediene case, on the availability of habeas corpus for military detainees, Justice Scalia disagreed with Professor Mike Ramsey's view that the historical record on the point is sparse. In the case of a truly sparse record, however, Justice Scalia suggested that a close case should be decided in favor of the legislature's decision, a position that itself has historical grounding, in Justice Scalia's view.
Professor Don Dripps questioned Justice Scalia about the Crawford line of confrontation cases, asking how an originalist position can be realistically recreated given the dramatic changes in so many aspects of the criminal justice system as it existed at the time of the framing. He also asked if there was a way to devise out-of-court procedures that would repair the damage that Crawford has done in domestic-violence prosecutions. Justice Scalia responded that the Confrontation Clause is not designed to make prosecutions easier.
The event was sponsored by the University of San Diego's Center for the Study of Constitutional Originalism, a group that includes both adherents to and critics of originalism. The center's website is here.