Saturday, March 13, 2010
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.
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.”
Friday, March 12, 2010
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.
Thursday, March 11, 2010
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.
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.
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.
Wednesday, March 10, 2010
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.
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.
Tuesday, March 9, 2010
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.
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.
Monday, March 8, 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.
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.
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.
Sunday, March 7, 2010
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.
|1||378||The Emerging Law of Detention: The Guantanamo Cases as Lawmaking |
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
|2||288||Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan |
Jordan J. Paust,
University of Houston - Law Center,
Date posted to database: December 11, 2009
|3||252||Fifty State Survey of Adult Sex Offender Registration Laws |
Brenda V. Smith,
American University - Washington College of Law,
Date posted to database: December 3, 2009
|4||239||The Greatest Legal Movie of All Time: Proclaiming the Real Winner |
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
|5||233||The Case Against the Goldstone Report: A Study in Evidentiary Bias |
Harvard Law School,
Date posted to database: January 27, 2010
|6||223||How Does International Law Work: What Empirical Research Shows |
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009
|7||183||Vagueness Challenges to the Computer Fraud and Abuse Act |
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009
|8||148||Judging Police Lies: An Empirical Perspective |
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [9th last week]
|9||129||'The Look in His Eyes': The Story of State v. Rusk and Rape Reform |
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [new to top ten]
|10||128||Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) |
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 1, 2009