September 4, 2010
Solove on Fourth Amendment Pragmatism
In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.
Kinports on the Court and Miranda
Kit Kinports (The Pennsylvania State University) has posted The Supreme Court's Love-Hate Relationship with Miranda on SSRN. Here is the abstract:
In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.
Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, and Berghuis v. Thompkins. This Article examines each opinion through a pragmatic lens, with an eye towards ascertaining whether the Roberts Court remains committed to the pragmatic approach taken by its predecessors. While the government prevailed on every issue raised by the three cases, the opinions vary in their fidelity to pragmatic norms.
The Article concludes that, even if Shatzer and Powell can be dismissed as effecting only incremental changes in the law – in the rules protecting those who invoke their Miranda rights, defining custody, and requiring that the warnings reasonably convey each of the rights Miranda guarantees – Thompkins cannot be defended on pragmatic grounds. In effect, the decision in Thompkins allows the police to begin interrogating a suspect immediately after reading the Miranda warnings, without first securing a waiver of the suspect’s Miranda rights, and then to use anything she says – even hours later – to demonstrate that she impliedly waived her rights. Thompkins thus essentially reduces Miranda to a mere formality, requiring that warnings be read and otherwise leaving criminal defendants with the same voluntariness due process test that Miranda was designed to replace. To the extent Thompkins signals a change in the Court’s attitude towards Miranda, it comes at a particularly critical time given reports that the Obama administration is considering proposing an exception to Miranda for terrorism suspects.
September 3, 2010
Baer on Cooperation's Cost
This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals. On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully. This is the “Detection Effect” of cooperation, and it has long been cited as the policy’s primary justification.
On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught. This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too many cooperators, sentences them too generously, or causes them to become overly optimistic about their chances of receiving a cooperation agreement.
When the government allows the Sanction Effect to grow too large, it undermines one of its key tools for improving deterrence. Indeed, when the Sanction Effect outweighs the Detection Effect, cooperation reduces deterrence, and the government unwittingly encourages more crime. Since cooperation is itself administratively costly, the policy perversely causes society to pay for additional crime.
This Article reorients the cooperation debate around the fundamental question of whether cooperation deters wrongdoing. Drawing on economics and behavioral psychology, it provides a framework for better understanding how and when cooperation “works.” Government actors who laud and rely on cooperation must address the fundamental question of whether it actually deters wrongdoing. To do otherwise, is to leave society vulnerable to cooperation’s greatest cost.
September 2, 2010
Dervan on Plea Bargaining's Innocence Problem
Lucian E. Dervan (Southern Illinois University School of Law) has posted Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve on SSRN. Here is the abstract:
If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.
Harcourt and Meares on Randomization and the Fourth Amendment
Randomized checkpoint searches are generally taken to be the exact antitheses of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this article, we contend that randomized searches should form the very lodestar of a reasonable search. The fact is that the notion of “individualized” suspicion is misleading; most suspicion in the modern policing context is group-based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question of suspicion-based versus suspicionless police searches, but on the level of suspicion that attaches to any search program and on the evenhandedness of the program. In essence, we argue for a new paradigm of randomized encounters that satisfy a base level of suspicion and that will provide the benefits of both privacy-protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion), the very values we wish to protect through the Fourth Amendment.
September 1, 2010
Covey on Pervasive Surveillance and the Fourth Amendment
Russell D. Covey (Georgia State University College of Law) has posted Pervasive Surveillance and the Future of the Fourth Amendment (Mississippi Law Journal, Vol. 80, No. 4, 2010) on SSRN. Here is the abstract:
We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and easy to conduct intrusive surveillance on their populations and to obtain data and information about individuals in quantities and in detail never before imagined. For both of these reasons, states are increasingly likely to adopt strategies of pervasive surveillance.
Fourth Amendment doctrine has failed to respond adequately to these trends. First, Fourth Amendment law – mainly, the so-called “third party doctrine” – fails to adequately protect privacy in light of new technology. Second, the few limits that have been placed on government use of technology threaten the ability of the state to conduct the type of surveillance necessary to effectively combat the risks posed by terrorism. The solution suggested is to shift the focus of the Fourth Amendment from its longstanding concern with acquisition of information to its use. Current practices already suggest that people generally are less concerned about revealing private information to others under appropriate circumstances than they are in ensuring that these limited disclosures are not misused by their recipients. In a future world where dangerous technologies are cheap and easily obtained, the critical problem will be to safeguard the population through carefully targeted surveillance, while ensuring that such surveillance cannot be used for pretextual or politically oppressive purposes.
The Jet Blue Flight Attendant and the Criminal Law
Erin Murphy (NYU) has published "Is Steven Slater a Criminal?" in USA Today. In part:
Cannibalistic criminalization is also bad for the rest of us. Because harm prevention seems an unconvincing justification for this prosecution, perhaps the district attorney is motivated by another philosophy, such as the desire to deter others from engaging in the same kind of behavior. We are, after all, in the midst of an economic crisis, and the very fact that Slater appears to have tapped such a deep vein of resentment might suggest that failure to punish him would invite others to follow suit.
Schulhofer, Tyler & Hug on Policing at a Crossroads
Stephen Schulhofer (pictured), Tom Tyler and Aziz Z. Huq (New York University - School of Law , New York University - Department of Psychology and University of Chicago Law School) have posted American Policing at a Crossroads on SSRN. Here is the abstract:
As victimization rates have fallen, public preoccupation with policing and its crime control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This essay proposes an empirically grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective, at lower cost and without the negative side effects that currently hamper responses to terrorism and conventional crime. This essay describes the procedural justice model, explains its theoretical and empirical foundations, and discusses its policy implications, both for ordinary policing and for efforts to combat international terrorism.
August 31, 2010
Mitchell on Obstacles to Longer Halfway House Placements
S. David Mitchell (University of Missouri) has posted Impeding Reentry: Agency and Judicial Obstacles to Longer Halfway House Placements on SSRN. Here is the abstract:
Over 700,000 prisoners were released into their communities in 2008, at least 50,000 of those from federal custody. Once an obscure cause, nearly everyone agrees that prisoner reentry – the process by which former prisoners return to their community as free citizens – is of national importance. Absent adequate attention to transitional services, ex-offenders are often homeless, unemployed, and suffer from untreated substance abuse addictions. Accordingly, President Obama and his two predecessors have devoted considerable attention to the issue. Congress passed the Second Chance in 2007, amending two federal statutes, sections 3624(c) and 3621(b) and giving inmates a longer time in halfway houses to transition from incarceration to law-abiding citizens and requiring individualized inmate assessments prior to placement. Nevertheless, the Bureau of Prisons is ignoring both mandates, by categorically limiting the inmates’ time in halfway houses, trends that some courts have found violates the agency’s statutory authority.
By presuming that six months is a satisfactory length of time to spend in a halfway house, the Bureau of Prisons fails to comply with its statutory authority and thus violates Chevron and hard look review. Federal inmates that have sought to challenge the Bureau of Prisons’ policy have been thwarted by two judicial doctrines, exhaustion and mootness. Courts are refusing to hear inmates’ challenges because the inmates have failed to exhaust their remedies under the Bureau’s three-tiered process prior to seeking judicial relief or because the petition is moot. Inmates have invoked exceptions to both that have had mixed success. Given official statements, legal action is inevitable. Because legal action is a certainty, the time lost awaiting an administrative decision diminishes the amount of time that an inmate would be able to spend in a halfway house. The Bureau of Prisons needs to amend its policy and not categorically place inmates in halfway houses for six months.
Stinneford on Proportionality under the Cruel and Unusual Punishments Clause
John F. Stinneford (University of Florida Levin College of Law) has posted Rethinking Proportionality under the Cruel and Unusual Punishments Clause on SSRN. Here is the abstract:
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefited from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.
This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.
August 30, 2010
Gender, Justice, and Victim Rights Symposium Feb. 25 at WisconsinLegal Scholarship Blog notes this symposium focusing on "A Gendered Perspective of Victims in the Criminal Justice System." Those interested in submitting papers should send an abstract by by October 31.
Reamey on Universality in Criminal Procedure
Gerald S. Reamey (St. Mary's University School of Law) has posted Innovation or Renovation in Criminal Procedure: Is the World Moving Toward a New Model of Adjudication? (Arizona Journal International & Comparative Law, Vol. 27, p. 324, 2010) on SSRN. Here is the abstract:
A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.
While this movement has not gone unnoticed, the pace of change has accelerated, and the ways in which it has manifested itself have increased. This article begins by revealing how little systems actually differ in practice. It then analyzes how the gap that remains between these systems is closing by examining three illustrations of convergence: the growing use of lay judges and juries in civil law countries, the Italian reform movement incorporating adversarial techniques in a traditionally nonadversarial system, and the modernization of Chinese criminal procedure.
Following or perhaps leading this trend are a new breed of “hybrid” legal systems that borrow freely from several legal traditions and invent procedures freely. Beginning with the creation of multinational and supranational criminal tribunals following the end of World War II, new institutions and processes have been developed to deal with regional and international violations. Among the most important examples of the movement toward hybridization and multinational adjudication is the Corpus Juris project. Little known in the United States, this proposal represents a controversial effort within the European Union to harmonize – and perhaps to universalize – the criminal processes related to protecting the Community’s financial interests. Only some of the recommendations resulting from Corpus Juris have been instituted, but it nevertheless continues to impact thinking about unification and reform. Several tribunals already function with regional and international jurisdiction. The European Court of Human Rights, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Court have somewhat distinctive rules of procedure, but all blend the traditions of the major legal systems in a slightly different mix.
Will the trend toward adversarial trials and hybrid rules of adjudication eventually produce, as some have predicted, a universal system? This article explains not only the influences propelling countries toward a similar view of criminal procedure, but also why that movement is inherently limited and unlikely to produce universality.
Haque on Criminal Law and Armed Conflict
Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Criminal Law and Morality at War (PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., 2010) on SSRN. Here is the abstract:
The purpose of this chapter is to identify the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, justifiably depart from them, or unjustifiably depart from them. Part I explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side-effect, and defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. I argue that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The LOAC tracks these moral norms quite closely. By contrast, ICL departs from these moral norms in ways that are difficult to defend, in part because ICL seems to mistakenly assign intention a wrong-making rather than a wrong-justifying function.
The balance of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Part II attempts to identify the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity. Both the LOAC and ICL generally track these conditions fairly closely, but both should be revised to prohibit direct attacks on members of armed forces whom the attacker knows are not directly participating in hostilities and have not assumed a ‘continuous combat function’. Finally, Part III argues that moral constraints of necessity and proportionality limit the use of force even against individuals who are morally liable to direct attack. Several arguments to the effect that the LOAC and ICL may justifiably fail to enforce these moral constraints are examined and found unpersuasive.
August 29, 2010
"Somalia piracy suspect pleads guilty in US court"Jurist has this interesting story, recounting the charges that have been filed against "pirates" in light of a federal judge's ruling that the federal piracy statute does not apply to "violence or aggression committed on the high seas" and discussing the controversy about whether these prosecutions should occur in federal court.
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