March 20, 2010
Harmon on Proactive Policing Reform
Rachel Harmon (University of Virginia School of Law) has posted Promoting Civil Rights Through Proactive Policing Reform (Stanford Law Review, Vol. 62, 2009) on SSRN. Here is the abstract:
Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring misconduct, such as civil suits under § 1983 and the exclusionary rule, have proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed in 1994 to allow the Justice Department to sue police departments to force institutional reform. Scholars initially hailed § 14141 as a powerful tool for reducing unconstitutional police abuse. The Justice Department, however, has sued few police departments. This Article contends that § 14141’s greatest potential has been overlooked. Limited resources will always mean that § 14141 can be used to force reform on only a limited number of police departments. But § 14141 could also be used to induce reform in many more. This goal requires a § 14141 litigation strategy designed to motivate proactive reform in more departments than the Justice Department can sue. The key components of this strategy are a “worst-first” litigation policy that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a “safe harbor” from suit for police departments that voluntarily adopt best practice reforms. This Article also explains why this proactive § 14141 enforcement strategy would be more efficient at reducing police misconduct than current enforcement policies, proposals to reform § 14141 by adding private plaintiffs, and alternative mechanisms by which the federal government could regulate police department reform.
March 19, 2010
Katner on Delinquency and Daycare
As the nation faces policy challenges over juvenile delinquency and subsequent crime, one all-but-forgotten option remains as promising as ever despite its virtual absence in recent national discussions and debates: a comprehensive daycare and after-school care policy. For decades, social scientists in this country have examined various designs of early educational and daycare programs, some promising tremendous alterations in the lives of participants and others offering far more modest achievements. Today, however, long term studies provide a much clearer picture of how early child care programs and after-school programs offer significant benefits for communities. Longitudinal evidence suggests that early childhood intervention programs, which buffer the effects of delinquency risk factors, help prevent chronic delinquency and later adult offending. After-school care programs also provide healthy alternatives to otherwise unsupervised adolescent behavior and hopefully spare children and their communities the expense, fear, and suffering which often accompanies delinquent misconduct and subsequent adult criminal misconduct. Overall, early intervention programs help reduce risk factors that contribute to delinquent behavior and later adult offending, while after-school programs create activities for juveniles during the time period when many delinquent acts occur. European governments have funded early chidcare and educational programs for decades, and the time seems appropriate for this country to thoroughly review their programs and to consider following their lead.
Armacost on Arizona v. Gant
Prior to the Supreme Court’s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle. Police officers had begun to treat the SITA of a vehicle as a powerful investigative tool, using traffic stops and arrests to get a free search for evidence of more serious crimes At least as a formal matter, Arizona v Gant changed all this. In Gant the Supreme Court reviewed a Fourth Amendment challenge to an automobile search incident to arrest conducted after the driver had been arrested, handcuffed and secured in the police car. The Court held that police may not do a SITA of an automobile once the arrestee “has been secured and cannot access the interior of the vehicle” unless it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” For all practical purposes this holding means the end of Belton SITAs. It is standard protocol for police to order a potential arrestee out of his automobile, frisk him, handcuff him, and secure him in the officer’s vehicle. This means that SITAs of automobiles will almost never be justified.
When Gant came before the Supreme Court, both law enforcement and the defense bar viewed it as a big deal. Defense attorneys urged the Supreme Court to eliminate the automatic Belton search, which was widely viewed as creating incentives for pretextual traffic stops and exploratory searches. Law enforcement officials argued against overruling Belton on the grounds that eliminating the vehicle SITA would compromise officer safety and hamstring police investigators. In my view, neither side got precisely what it wanted.
This article forecasts the implications of the Court’s holdings and analysis in Gant. Part I describes the judicial landscape that gave rise to the reconsideration of Belton and analyzes the Gant opinions. Part II explores the conflicting claims by police officers and the defense bar about the likely effect of Gant on police practices. I conclude that Gant’s first holding – effectively eliminating the vehicle SITA for traffic arrests -- will make exploratory searches more costly but will not eliminate them. As to Gant’s second holding – that police may conduct a SITA if it is reasonable to believe evidence of the crime of arrest might be found in the vehicle – I fault the Court for using language that tracks neither probable cause nor reasonable suspicion. The Court’s Delphic language is sure to leave the lower courts in disarray. Part III considers the broader implications of Gant. I argue first that Gant represents another step in the march toward a Fourth Amendment jurisprudence of interest balancing. Second, while Gant articulated a coherent rationale for the SITA in a vehicle, the same rationale may have destabilized SITA law applicable to arrests in the home under Chimel. Finally, I challenge the familiar claim – made by those who argued against overruling Belton – that “bright line” rules are necessary in contexts that implicate concerns about police officer safety.
Giannelli on Independent Crime Labs
Paul C. Giannelli (Case Western Reserve University School of Law) has posted Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.
March 18, 2010
Slobogin on Insanity and the Integrationist Test
Christopher Slobogin (Vanderbilt University - School of Law) has posted A Defense of the Integrationist Test as a Replacement for the Special Defense of Insanity (Texas Tech Law Review, Vol. 42, 523-542) on SSRN. Here is the abstract:
This article, written for a symposium on “Criminal Law and the Excuses,” defends the “Integrationist” approach to analysis of the exculpatory effect of mental disability that I developed in Chapter Two of my book, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty. The book argues that the special nature of the insanity defense should be reconsidered now that modern criminal law, in particular the Model Penal Code, has subjectivized affirmative defenses such as self-defense and duress for people who are not mentally ill. More specifically, the claim is that these latter defenses capture the universe of people who should be excused due to mental illness, a claim which, if accepted, means that people with mental illness can be integrated into the culpability framework that applies to people who are not mentally ill and need no longer be handled through an independent excuse doctrine. Since the book was published in 2006, several commentators, including Richard Bonnie, Michael Corrado, Paul Litton, Matt Matravers, Stephen Morse, and Susan Rozelle, have registered objections to it. These criticisms can be organized under three general categories: the Integrationist Test is under-theorized; it fails to exculpate offenders who clearly should be excused; and it suffers from implementation difficulties. This article responds to these objections.
Donahue on State Secrets
In excess of fifty such suits emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. Although many of these cases ultimately turned on amendments to the Foreign Intelligence Surveillance Act, state secrets assertions grounded on a closely held executive branch jurisprudence played a key role throughout. Following this, the article looks at disputes where the government defended both the suit and state secrets assertions. These cases stem from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation. As in the corporate cases and the telecommunications suits, the executive does not change its course once it asserts the privilege. State secrets also played a role in the criminal context. Remarkably, in two cases, the executive did not even need to assert the privilege; instead, the court simply read it into the case. Collectively, these cases underscore the importance of looking more carefully at how the doctrine works. They challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors. It also has become intimately connected to the military-industrial complex, undermining contractual obligations and perverting tort law, creating a form of private indemnity for government contractors in a broad range of areas. Patent law, contracts, trade secrets, employment law, environmental law, and other substantive legal areas have similarly been affected, even as the executive branch has gained significant and unanticipated advantages over opponents in the course of litigation.
Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely - once it asserts the privilege - to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets claim. The government also may depend on a corporation for a key aspect of national defense - thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program.
March 16, 2010
Rosenthal on Damages for Wrongful Convictions
Lawrence Rosenthal (Chapman University - School of Law) has posted Second Thoughts on Damages for Wrongful Convictions (Chicago-Kent Law Review, Vol. 85, No. 1, 2010) on SSRN. Here is the abstract:
Even viewed as a form of social insurance, mandatory compensation is problematic. Because compenation is funded by the taxpayers, it represents a highly anomalous wealth transfer from those most in need of government assistance to the wrongfully convicted. Given the many competing demands for scarce public resources, it is far from clear that public funding of wrongful conviction insurance represents a socially optimal use of public funds. Moreover, because damages awards are funded by the taxpayers rather than the wrongdoers, the case for compensation as a form of compensatory justice is equally problematic. As for a regime of fault-based liability, both tort law and constitutional law have long wrestled with the problem of wrongful convictions, and have erected many doctrinal obstacles to a regime of fault-based liability. These doctrinal obstacles reflect considerable skepticism about the wisdom of damages for wrongful convictions — skepticism that is amply warranted. A regime of fault-based liability for wrongful prosecutions and convictions could not be confidently expected to induce police and prosecutors to take all cost-justified precautions to reduce the risk of wrongful prosecution or conviction given that police and prosecutors respond to political and not economic incentives, and the political benefits of aggressive prosecutorial tactics are substantial. If individual public officials were required to pay judgments, in turn, many judgments would go unsatisfied, and the risk of overdetrrence would be great. Ultimately, our current regime of political accountability for wrongful convictions is likely to be about the best than we can expect for identifying and reducing the risk of wrongful prosecutions and convictions.
After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in the criminal justice system as to render this rationale applicable. Moreover, because police and prosecutors respond to political and not economic incentives, the eonomic rationale for strict liability is unsatisfactory.
Hafemeister on Society's Response to Child Abuse
It has long been recognized that stress, unemployment, and financial problems are risk factors for child abuse. Not surprisingly, as the economy has deteriorated, reports of and attention to child abuse have increased. Society has come a long way from the “Mary Ellen Wilson” era of the 1870s when the detection of child abuse was sporadic and random, with poorly-suited tools borrowed to craft a response. But child abuse has now for almost 150 years been widely recognized as a recurrent, pervasive problem with potentially tragic short- and long-term consequences for a staggering number of children that calls for a well conceived and executed societal response. The consensus is, however, that society is neither adequately preventing or identifying child abuse, nor appropriately responding to the needs of abused children. This Article provides an extensive and comprehensive review of society’s response to child abuse, including legislative efforts to redress it. In particular, this Article describes (1) the nature and impact of child abuse and the factors that contribute to it, (2) the evolution of this country’s response to child abuse and how we currently address it, and (3) how this country can and must do better. As has often been noted, a society should be measured by how well it treats its most vulnerable citizens. Preventing and appropriately responding to child abuse should be at the top of any ordered society’s agenda.
March 15, 2010
"Eleventh Circuit Decision Largely Eliminates Fourth Amendment Protection in E-Mail"Orin Kerr has this post at The Volokh Conspiracy. The case is here.
Garrett on DNA and Due Process
The Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the U.S. the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that contrary to early accounts, the Court did not reject a constitutional right to post-conviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’ majority opinion proceeded to carefully fashion an important, but qualified and derivative procedural due process right. While denying relief to Osborne for narrow factual and procedural reasons, the Court’s ruling swept more broadly. The Court held that states with post-conviction discovery rules, as almost all have enacted, may not arbitrarily deny access to post-conviction DNA testing, and then pointed to the generous provisions of the federal Innocence Protection Act as a model for an adequate statute. The Court also continued to assume that litigants may assert constitutional claims of actual innocence in habeas proceedings. In this Essay, I explore the contours of the Osborne due process right, its
larger implications for constitutional interpretation, and more specifically, whether the decision has the potential to create pressure on the States to provide meaningful avenues to for convicts to litigate their innocence.
March 14, 2010
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Date posted to database: January 27, 2010
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|9||133||ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities |
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