March 13, 2010
Back to the future on sentencing disparity
Doug Berman at Sentencing Law and Policy has an interesting post on the troubling implications of a recently released report by the U.S. Sentencing Commission indicating that the post-Booker increase in sentencing discretion has led to an increased correlation between sentence length and "the demographic characteristics" of some offenders. Doug's preliminary thought:
Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges. I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders.
Objections to NYPD database holding information on those frisked and released
Bob Herbert's New York Times column is entitled Big Brother in Blue.
The speaker of the New York City Council and the head of the Council’s Public Safety Committee are calling on Police Commissioner Ray Kelly to get rid of his huge, noxious database of completely innocent New Yorkers who are stopped, questioned and often frisked by the police.
. . .
Ms. Quinn and Mr. Vallone believe it should stop. In a letter this week to Commissioner Kelly, they said that his intent to keep a permanent record of all the information gathered during the stops “raises significant privacy right concerns and suggests that these innocent people are more likely to be targeted in future criminal investigations.”
March 12, 2010
"Mandatory minimum sentencing busts budgets and bloats non-violent prison rolls"
Deborah Fleischaker, director of state legislative affairs for Families Against Mandatory Minimums, has this piece at Jurist:
[T]here is no evidence to suggest that repealing mandatory sentences would lead to an increase in crime. In fact, states that have significantly reformed mandatory minimums, as Michigan did in 1998 and 2003, have not experienced increasing levels of crime. More and more states - notably, both red and blue states - are employing proven alternatives, such as drug courts and risk-based sentencing policies, which are more effective and cost-efficient than lengthy, mandatory sentences, especially when dealing with non-violent drug offenders.
Ainsworth on ZappersRichard Thompson Ainsworth (Lecturer, Boston University - School of Law) has posted Zappers - Retail VAT Fraud on SSRN. Here is the abstract:
Tax losses in the EU can be estimated at approximately $23 billion per year in the restaurant sector alone. Germany tops the list followed by the UK, France, Italy and then Spain.
Country Revenue Loss (in millions) Country Revenue Loss (in millions)
Austria 508.7 Latvia 58.4
Belgium 600.5 Lithuania 100.1
Bulgaria 45.9 Luxembourg 79.2
Cyprus 33.4 Malta 16.7
Czech Republic 404.5 Netherlands 1,042.5
Denmark 316.9 Poland 1,030.0
Estonia 41.7 Portugal 362.8
Finland 296.0 Romania 417.0
France  3,294.3 Slovakia 183.5
Germany  4,503.6 Slovenia 87.6
Greece 529.6 Spain  2,160.1
Hungary 304.4 Sweden 529.6
Ireland 291.9 United Kingdom  3,448.6
Italy  2,806.4
This is not the only marketplace where the tax/technology intersection is problematical. On a far larger scale MTIC (missing trader intra-community) fraud is also a technology driven theft of public revenue by criminals. These frauds include the well known carousel frauds in cell phones and computer chips, MTIC fraud in CO2 permits, the yet to be fully investigated VoIP MTIC, as well as MTIC in the electricity and gas exchanges.
Tax authorities are fighting back all along the technology front. There are intensive traditional audits as well as concerted efforts to blunt the effectiveness of the fraud with technology. But, if there is one distinguishing characteristic of Zapper enforcement efforts it is that here the authorities are embracing technology-based solutions. This effort to fight technology-with-technology has produced a measure of success as well as helped develop strategic partnerships around solutions. Cooperation is evident.
Orenstein on Crawford's Effect on Domestic Violence CasesAviva Orenstein (Indiana University School of Law - Bloomington) has posted Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases on SSRN. Here is the abstract:
Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the murder victim. The analysis of the res gestae hearsay exception, which was central to excluding the victim’s statement in Bedingfield, focused on the timing of her statement, her intent in making it, and whether an ongoing emergency existed when the declaration was made. Justice Scalia’s rigid, formalistic approach to testimonial statements in Davis v. Washington, another in the line of new confrontation cases, is analogous and ultimately as confusing and unworkable as Bedingfield’s res gestae analysis.
Although Bedingfield arose in 1879, its facts, replete with verbal abuse, intoxication, unheeded pleas for police protection, and ultimately, murder when the victim tried to break off the relationship, resonate with modern experiences of domestic violence. Both the Bedingfield case and Justice Scalia’s confrontation jurisprudence fail to account for the practical realities of domestic violence cases and ignore the voices of victims who cannot or will not testify on their own behalf. The facts of Bedingfield, which present a serious question whether the victim’s statement was ever uttered, demonstrate another flaw in Justice Scalia’s new approach. In addition to being too rigid in rejecting unconfronted testimonial statements, the new confrontation doctrine it is also too lax regarding nontestimonial statements, which now receive no constitutional protection at all.
March 11, 2010
Innovation in Using Brain Imaging to Assess Memories (Kolber)
In the study, Maguire and her colleagues Martin Chadwick, Demis Hassabis, and Nikolaus Weiskopf showed 10 people each three very short films before brain scanning. Each movie featured a different actress and a fairly similar everyday scenario.
The researchers scanned the participants' brains while the participants were asked to recall each of the films. The researchers then ran the imaging data through a computer algorithm designed to identify patterns in the brain activity associated with memories for each of the films.
Finally, they showed that those patterns could be identified to accurately predict which film a given person was thinking about when he or she was scanned.
The results imply that the traces of episodic memories are found in the brain, and are identifiable, even over many re-activations, the researchers said.
The results reinforce the findings of a 2008 US study that showed similar scans can determine what images people are seeing based on brain activity.
11yo Charged With Murder May Be Tried as Adult (Kolber)
An eleven-year-old boy in Pennsylvania is charged with murdering his future stepmother. A judge will soon decide whether he will be tried as an adult and possibly face life in prison without the possibility of parole. (In unrelated cases, the Supreme Court is deciding whether juvenile life-without-the-possibility-of-parole sentences violate the Constitution). Here's a clip from Good Morning America about the case, including comments from law professor Doug Berman (at about 2minutes 50seconds):
You'll notice that the Good Morning America writers seem to suggest (at about 3 minutes and 10 seconds) that brain imaging evidence was relevant to the Supreme Court's decision in Roper v. Simmons (which held that the death penalty is unconstitutional when applied to those who were younger than 18 at the time they murdered). While there was quite a bit of brain imaging evidence provided to the Supreme Court, I don't think there's much reason to believe that brain imaging evidence affected the court's decision.
"Criminal Prosecutors Push for Tougher Gang Laws"
The story is at FindLaw. In part:
Police and prosecutors say changes would strengthen the law by defining "criminal gangs" and "criminal gang members," to broaden the types of crime considered gang activity.
. . .
Some of the proposed revision of the existing gang prevention act that would define a member as someone who fits at least two of these categories:
- You proclaim yourself a member.
- You use a gang's name, sign or symbol.
- You associate with other known gang members and demonstrate aspiration to become a member by adopting style of dress, tattoos or hand signals or participate in gang activities.
- The prison system has determined you are a gang member.
- Photos or electronic communication provide evidence of your gang membership.
Barkow on Federalism and Criminal LawRachel E. Barkow (New York University - School of Law) has posted Federalism and Criminal Law: What the Feds Can Learn from the States on SSRN. Here is the abstract:
This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state- or federal-level). A comprehensive empirical survey of criminal law enforcement responsibility in the states – including a review of state codes and case law and interviews with state prosecutors – reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. This contrasts with the federal government’s increasing interference with local crime.
The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal involvement in crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government’s decision to get involved with question of local crime.
March 10, 2010
Jones, Buckholtz, Schall & Marois on Brain Imaging
It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.
Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that discovered the brain activity underlying a person’s decisions: a) whether to punish someone; and b) how much to punish. The annotation uses the “Comment” feature of the Word software to supply contextual and step-by-step commentary on what unfamiliar terms mean, how and why brain imaging experiments are designed as they are, and how to interpret the results.
Third, the Article offers some general guidelines about how to avoid misunderstanding brain images in legal contexts and how to identify when others are misusing brain images.
Hallevy on Culture Crimes Against Women
It is difficult to get precise numbers of “honor killings,” since most cases are not reported. When a woman is murdered in the name of family honor in the country of origin, it is justified by law, since the concept of family honor justifies the killing of women in these societies. The perpetrators of such killings in these societies are considered heroes of their culture. In these societies, the concept of woman as a vessel of the family reputation is prevalent, and this concept is completed and accompanied by the concept of honor killings. The story of Soraya M., which was publicized in a book and a movie, is another example. Her husband wanted to marry a younger woman, so he claimed that she was flirting with a neighbor. She was stoned to death.
About five thousand women are murdered by their families each year in the name of family honor. A young Muslim girl was murdered in Berlin by her own brother, because she "behaved like a German." Both of them had German citizenship. He was sentenced to nine years of incarceration, and was released after six years. His family celebrated his release from prison. Fatima Sehindel, a Muslim Swedish girl, was a student. She wanted to assimilate in Swedish society. She spoke to the Swedish parliament. She even had a Swedish boyfriend. She was murdered by her own father. These crimes were committed in advanced western countries.
This phenomenon is not exclusive to the countries of origin. Many of the women murdered by their families in the name of family honor are murdered in western societies, very advanced western societies that have open-gate policies and are absorbing immigrant populations. Some of the immigrants in these societies come from countries where the concept of honor killing is in common use, is morally acceptable and is legal. Upon settling in their new homeland, the immigrant population continues this accepted practice, as they used to in their homeland.
Reports submitted to the United Nations Commission on Human Rights show that honor killings have been committed in Great Britain, Italy, Sweden, the United States, Germany, France, and other countries absorbing immigrants. Some of these honor killings are perpetrated or assisted by women. The concept of honor killing is considered by most of the immigrants, including women, as part of their culture, which must be preserved. They sometimes rely on Article 27 of the International Covenant on Civil and Political Rights. Honor killings are not the only offenses committed against women in the name of culture.
When the perpetrators are charged in court, they frequently claim the “ignorance of law” defense, since they have been behaving that way for generations, and why would the legal situation be different in their new homeland. In most cases, this claim is rejected, but it is used to mitigate punishments down to ridiculous sentences. Most western countries share this problem. This article argues that the mistake of law defense is irrelevant in relation to culture-based crimes against women. It is further argued that committing an offense on the grounds of preserving a culture in and of itself justifies harsher sentencing.
In the following paragraphs culture-based crimes against women in countries absorbing immigrants will be introduced. Then the relevance of the mistake of law defense shall be examined in relation to culture-based crimes against women. Finally, and on those grounds, the sentencing considerations when punishing such crimes shall be examined
March 9, 2010
Hessick and Hessick on Recognizing Constitutional Rights at Sentencing
There are a number of traditional sentencing factors, which judges use when selecting the precise sentence within the statutory sentencing range, that appear to infringe on the constitutional rights of criminal defendants. Yet courts have not engaged in traditional constitutional analysis when permitting the use of these factors. Instead, they have rejected constitutional challenges to sentencing factors on the grounds that recognizing substantive constitutional limits on sentencing considerations would be inconsistent with historical practice and would interfere with the judiciary’s ability to impose a proper sentence. This Article challenges these claims. It demonstrates both that there is not a historical practice of disregarded rights at sentencing, that constitutional rights frequently impair the government’s ability to accomplish its goals, and that there is nothing unique about sentencing that warrants the judiciary’s disregard of constitutional rights because of these impediments. It further argues that recognizing constitutional limits on sentencing considerations is particularly important given that sentencing is the means by which the government restricts individual liberty.
Pettys on Jurors and Abandoning the Exclusionary Rule
In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary rule entirely. I suggest that the Supreme Court might already be willing to abandon the rule, provided that Congress enacts reforms aimed at making the threat of financial liability for Fourth Amendment violations more robust. I close by identifying several ways in which Congress could help pave the way for the exclusionary rule’s demise.
March 8, 2010
Guiora on "Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010"
Amos Guiora (University of Utah College of Law) critiques this recent proposal in a piece at Jurist.The bill
mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody. The detainee will not be entitled to Miranda rights and will remain in detention – and can be interrogated – while the Executive Branch makes a status determination. If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities. Needless to say, unlike the POW in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for ‘indefinite detention’.
The legislation’s panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism – a federal crime indeed but never part of the law of war – the bill subjects an extraordinarily broad group of persons to indefinite detention.
Today's Speedy Trial Act opinion
in Bloate v. United States is here. Here is the syllabus:
The Speedy Trial Act of 1974 (Act) requires a criminal defendant’s trial to commence within 70 days of his indictment or initial appearance,18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). As relevant here, the Act automatically excludes from the 70-day period “delay resulting from . . . proceedings concerning the defendant,” 18 U. S. C. A. §3161(h)(1)(hereinafter subsection (h)(1)), and separately permits a district court to exclude “delay resulting from a continuance” it grants, provided the court makes findings required by §3161(h)(7) (hereinafter subsection (h)(7)). Petitioner’s indictment on federal firearm and drug possession charges started the 70-day clock on August 24, 2006. After petitioner’s arraignment, the Magistrate Judge ordered the parties to file pretrial motions by September 13. On September 7, the court granted petitioner’s motion to extend that deadline, but on the new due date, September 25, petitioner waived his right to file pretrial motions. On October 4, the Magistrate Judge found the waiver voluntary and intelligent.
Over the next three months, petitioner’s trial was delayed several times, often at petitioner’s instigation. On February 19, 2007—179 days after he was indicted—he moved to dismiss the indictment, claiming that the Act’s 70-day limit had elapsed. In denying the motion, the District Court excluded the time from September 7 through October 4 as pretrial motion preparation time. At trial, petitioner was found guilty on both counts and sentenced to concurrent prison terms. The Eighth Circuit affirmed the denial of the motion to dismiss, holding that the period from September 7 through October 4 was automatically excludable from the 70-day limit under subsection (h)(1).
Held: The time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Pp. 6–18.
(a) The delay at issue is governed by subsection (h)(1)(D) (hereinafter subparagraph (D)), the enumerated category that renders automatically excludable “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” This provision communicates Congress’ judgment that pretrial motion-related delay is automatically excludable only from the time a pretrial motion is filed through a specified hearing or disposition point, and that other pre-trial motion-related delay is excludable only if it results in a continuance under subsection (h)(7). This limitation is significant because Congress knew how to define the boundaries of subsection (h)(1)’s enumerated exclusions broadly when it so desired. Although the period of delay the Government seeks to exclude in this case results from a proceeding governed by subparagraph (D), that period precedes the first day upon which Congress specified that such delay may be excluded automatically and thus is not automatically excludable. Pp. 7–10.
(b) This analysis resolves the automatic excludability inquiry because “[a] specific provision” (here, subparagraph (D)) “controls one[s] of more general application” (here, subsections (h)(1) and (h)(7)). Gozlon-Peretz v. United States, 498 U. S. 395, 407. A contrary result would depart from the statute in a manner that underscores the propriety of this Court’s approach. Subsection (h)(1)’s phrase “including but not limited to” does not show that subsection (h)(1) permits automatic exclusion of delay related to an enumerated category of proceedings, but outside the boundaries set forth in the subparagraph expressly addressed to that category. That would confuse the illustrative nature of the subsection’s list of categories with the contents of the categories themselves. Reading the “including but not limited to” clause to modify the contents of each subparagraph in the list as well as the list itself would violate settled statutory construction principles by ignoring subsection (h)(1)’s structure and grammar and in so doing rendering even the clearest of the subparagraphs indeterminate and virtually superfluous. See generally id., at 410. Subsection (h)(1)’s context supports this Court’s conclusion. Subsection (h)(7) provides that delay “resulting from a continuance granted by any judge” may be excluded, but only if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,” and records those findings. In setting forth the statutory factors justifying a subsection(h)(7) continuance, Congress twice recognized the importance of adequate pretrial preparation time. See §§3161(h)(7)(B)(ii), 3161(h)(7)(B)(iv). The Court’s determination that the delay at issue is not automatically excludable gives full effect to subsection (h)(7), and respects its provisions for excluding certain types of delay only where a district court makes findings justifying the exclusion. The Court’s precedents also support this reading of subsection (h)(1). See Zedner v. United States, 547 U. S. 489, 502. Pp. 10–16.
(c) The Act does not force a district court to choose between rejecting a defendant’s request for time to prepare pretrial motions and risking dismissal of the indictment if preparation time delays the trial. A court may still exclude preparation time under subsection (h)(7) by granting a continuance for that purpose based on recorded findings. Subsection (h)(7) provides “[m]uch of the Act’s flexibility,” Zedner, 547 U. S., at 498, giving district courts “discretion . . . to accommodate limited delays for case-specific needs,” id., at 499. The Government suggests that a district court may fail to make the necessary subsection (h)(7) findings, leading to a windfall gain for a defendant who induces delay beyond the 70-day limit. But dismissal need not represent a windfall. If the court dismisses the charges without prejudice, the Government may refile charges or reindict. In ruling on a motion to dismiss under the Act, the district court should consider, inter alia, the party responsible for the delay. Pp. 16–18.
(d) This Court does not consider whether any of the Act’s other exclusions would apply to all or part of the September 7 through October 4 period that is not automatically excludable under subsection(h)(1). P. 18.
534 F. 3d 893, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which BREYER, J., joined.
Arcila on the Death of Suspicion
This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in which reasonableness serves as the constitutional touchstone for all governmental searches, and where neither warrants nor suspicion are primary mechanisms for protecting Fourth Amendment values. Therefore, new ways must be identified of assuring adequate Fourth Amendment protections. To that end some broad guidelines are offered.
March 7, 2010
Monahan & Walker on Social Science in (Criminal) Law
John Monahan (pictured) and Laurens Walker (both of University of Virginia School of Law) have posted Twenty-Five Years of Social Science in Law (Law and Human Behavior, Forthcoming). While the piece addresses a range of legal issues, several criminal law and procedure topics are among those addressed. Here is the abstract:
In this Essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed - sometimes radically - are the substantive legal questions on which social science has been brought to bear.
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