February 6, 2010
"Federal judge questions immigration prosecutions"Coverage from the Austin, TX, Statesman is here. Judge Sam Sparks opines that the expense of jailing those without significant criminal history cannot be justified. In this order, Judge Sparks advises prosecutors that he will require a statement of reasons at sentencing for why the immigration prosecution has been commenced. Hat tip: Dan Kowalski.
"Assassinating Americans, Killing the Constitution?"Tobin Harshaw canvasses the chatter on this topic--essentially, one example of the question of the limits of the criminal model--at Opinionator.
"AG Defends Handling of Christmas Day Bomber"ACSblog has this post laying out the administration's response to criticism of its handling of the case, including efforts to block a domestic trial.
Reinert on Public Interests and Fourth Amendment Enforcement
Alex Reinert (Benjamin N. Cardozo School of Law -- Yeshiva University) has posted Public Interest(s) and Fourth Amendment Enforcement (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
Fourth Amendment events – the recent arrest of Harvard professor Henry Louis Gates, Jr. is one of many examples – generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the Amendment creates only tension between privately-held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the “public interest” seriously in this framework predictably favors government intrusions.
This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony rather than in tension with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests – participatory pluralism and efficient and accurate administration of the criminal justice system – that are implicated by Fourth Amendment questions, but are ignored by the Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes account of these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.
February 5, 2010
A Current Mistake-of-Law Claim: "Haiti Charges Americans With Child Abduction"
The New York Times article is here.
Reuters, which had a reporter in the session, said that all 10 of the detainees acknowledged to the prosecutor that they had apparently violated the law when they tried to take the children from Haiti, although they said they were unaware of that until after they were detained.
“We did not have any intention to violate the law, but now we understand it’s a crime,” said Paul Robert Thompson, a pastor who led the group in prayer during a break in the session.
"Jackson’s Doctor to Face Charges Monday"
The New York Times article is here. There has been considerable speculation about the charges (involuntary manslaughter seems to be the most-mentioned possibility), but here's the really important stuff:
Early this week, trailed by paparazzi, Dr. Murray, who has offices in Houston and Las Vegas, arrived in Los Angeles and met with his lawyers, raising speculation that charges were imminent.
What ensued, however, was a steady dribble of anonymous sources from the Los Angeles Police Department and the office of District Attorney Steve Cooley airing differences to news outlets over how Dr. Murray should be arrested. The police, it was said, wanted to put the handcuffs on and take him to court.
The district attorney, their leakers said, sought to negotiate with Dr. Murray’s lawyers over arriving at a courthouse with his lawyers and proceeding to a courtroom, preferably not in jail clothes or chains since he had no criminal record and others facing felony charges have been afforded that option.
"Trying Suspected Terrorists in Federal Court"Crime and Consequences has this link to video of a Federalist Society event discussing this issue held at Fordham Law School on Jan. 27.
"Justice Kennedy laments the state of prisons in California, U.S."Doug Berman at Sentencing Law and Policy discussing this article from the Los Angeles Times. Doug's thought: "I also cannot help but wonder whether these issues are uniquely on Justice Kennedy's mind because of all the significant sentencing cases before the Supreme Court this term."
Leo and Drizin on False Confessions and Wrongful Convictions
Richard A. Leo (University of San Francisco - School of Law) and Steven A. Drizin (pictured right) (Northwestern University - School of Law, Bluhm Legal Clinic) have posted The Three Errors: Pathways to False Confession and Wrongful Conviction on SSRN. Here is the abstract:
Research has demonstrated that false confessors whose cases are not dismissed before trial are often convicted despite their innocence. In order to prevent such wrongful convictions, criminal justice officials must better understand the role that false confessions play in creating and perpetuating miscarriages of justice. This chapter examines police-induced false confessions and analyzes three sequential errors that occur in the social production of every false confession: investigators first misclassify an innocent person as guilty; they next subject him to a guilt-presumptive, accusatory interrogation that invariably involves lies about evidence and often the repeated use of implicit and/or explicit promises and threats as well; and once they have elicited a false admission, they pressure the suspect to provide a post-admission narrative that they jointly shape, often supplying the innocent suspect with the (public and nonpublic) facts of the crime. We refer to these as the misclassification error, the coercion error, and the contamination error. Additionally, at least three other processes - "misleading specialized knowledge," "tunnel vision," and "confirmation bias" – usually pave the way to a wrongful conviction by convincing all of the criminal justice actors to ignore the possibility that the confession is false. We analyze these processes in this chapter and conclude with recommendations designed to reduce false confessions and prevent false confessions from leading to wrongful convictions.
February 4, 2010
"Sweat Lodge Leader Is Indicted in Deaths"The New York Times article is here.
Lager on Government EthicsJames M. Lager (US Government Accountability Office; Robert H Smith School of Business) has posted Overcoming Cultures of Compliance to Reduce Corruption and Achieve Ethics in Government (McGeorge Law Review, Vol. 41, p. 63, 2009) on SSRN. Here is the abstract:
Despite decades of failed anti-corruption efforts, most government organizations operate as if additional compliance-based efforts will curb corruption. This article postulates that many of the government ethics rules imposed on public agencies and their employees, and compliance-oriented efforts to ethics, are ineffective and often counterproductive, and suggests the adoption of values-based ethics programs and practices to move past the ineffective compliance efforts to reduce corruption.
Perlin on Mental Disability Law
Michael L. Perlin (New York Law School) has posted 'They Keep it All Hid': The Ghettoization of Mental Disability Law and its Implications for Legal Education (St. Louis University Law Journal, Symposium Issue, Vol. 54, No. 3, 2010) on SSRN. Here is the abstract:
Mental disability law has been “ghettoized” in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since every all law schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in “mental disability law” offered only at about half of all American law schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training).
This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability law is simply not a topic taken seriously as a civil rights topic (or as a constitutional law topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching mental disability law. It is hidden (nearly, totally hidden) from the traditional law school curriculum. It is not in the curriculum at many law schools. It is largely invisible to students and professors alike.
"Future of the Exclusionary Rule" Symposium to be Held at Fordham
The Fordham Urban Law Journal has organized a symposium on "The Future of the Exclusionary Rule" to be held at Fordham on Thursday, February 11. The link to information is here. The speaker's list follows the jump.
Hadar Aviram, Associate Professor of Law, UC-Hastings School of Law, writing with Richard Leo, Associate Professor of Law, University of San Francisco School of Law
Robert Dean, Attorney-in-Charge, Center for Appellate Litigation, New York
Donald Dripps, Professor of Law, University of San Diego School of Law
Anthony J. Girese, Counsel to the District Attorney, Bronx County
Robert Gottlieb, Noted Criminal Defense Attorney
Leonard Joblove, Chief of Appeals Bureau, Kings County District Attorney’s Office
Hon. Barry Kamins, Administrative Judge for Criminal Matters, 2nd Judicial District Judge, New York City Criminal Court
Tracey Maclin, Professor of Law, Boston University School of Law
Erin E. Murphy, Visiting Professor of Law, NYU Law School, Assistant Professor of Law, UC-Berkeley School of Law
Todd Pettys, Professor of Law, University of Iowa College of Law
Christopher Slobogin, Professor of Law and Psychiatry, Vanderbilt University Law School
George C. Thomas III, Board of Governors Professor of Law and Judge Alexander P. Waugh, Sr. Distinguished Scholar, Rutgers School of Law
Lloyd Weinreb, Dane Professor of Law, Harvard Law School
February 3, 2010
"Legal Protection for Historical Cell-Site Records"Orin Kerr has an interesting post on this topic at The Volokh Conspiracy.
Green on Golden Rule Ethics and the Criminal Law's Special Part
Stuart P. Green (Rutgers Law School-Newark) has posted Review Essay: Golden Rule Ethics and the Death of the Criminal Law's Special Part (Criminal Justice Ethics, Forthcoming, CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW, Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse, eds., Cambridge University Press, 358 pp., 2009) on SSRN. Here is the abstract:
This brief review of Crime and Culpability: A Theory of Criminal Law, by Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, focuses on the authors’ proposal that the Special Part of the criminal law, the part that identifies and defines specific offenses, be radically stripped down in a manner that is reminiscent of the Golden Rule of Ethics, which, they say, offers a “clear” and “concise” guide to living ethically. Rather than a long list of specific prohibited forms of conduct (“don’t murder,” “don’t rape,” “don’t commit theft,” and the like), they argue, the criminal law should rely on a single “general rule,” to the effect that “[i]t is criminal for an actor to take an unjustified risk of causing harm to a legally protected interest or to take an unjustified risk that his conduct constitutes prohibited behavior.”
Contrary to the authors’ contention, the proper formulation, meaning, and function of Golden Rule of Ethics are anything but “clear.” There are substantial controversies about both the Rule's substance (its proper formulation, its meaning, and whether it leads to the right result), and its procedure (e.g. about whether the rule is meant to be relied on by ordinary people on a case-by-case basis in their daily lives; applied only when there exists no more specific rule on point, or where specific rules conflict; or used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules). Relying on a single, general rule of conduct in the criminal law sphere would create similar interpretive and practical uncertainties and difficulties. Rather than doing away with centuries of common law and legislative developments, and essentially starting over, we should instead endeavor to refine the criminal codes we already have so that they are more carefully formulated and more respectful of the harm principle.
Harmon on Civil Rights and Proactive Policing Reform
Rachel Harmon (Virginia Law School) has posted Promoting Civil Rights Through Proactive Policing Reform at The Legal Workshop. It is adapted from her article here in the Stanford Law Review. Here's the introduction:
Preventing police misconduct often requires changing the department in which it arises, but police departments have proved largely resistant to legal efforts to reform them. A promising federal law, 42 U.S.C. § 14141, permits the Justice Department to sue police departments that are engaged in a “pattern or practice” of misconduct in order to compel structural reform intended to protect civil rights. Unfortunately, although the statute was passed in 1994, it has not yet been used to significant effect. Too few investigations and suits have been brought, and too few departments reformed. The Obama Administration has an opportunity to improve the use of § 14141. But widespread reform cannot be effectively achieved simply by bringing more investigations and suits to compel reform, because such investigations are expensive, resources are inevitably limited, and many departments may need reform. To solve this problem, I propose an approach to enforcing § 14141 that would leverage existing resources to promote proactive reform in more police departments than the Justice Department can sue. More specifically, I advocate a “worst-first” litigation police 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 practices reforms.
February 2, 2010
"Jim Crow Policing"
That's the title of Bob Herbert's op-ed piece in the New York Times:
The New York City Police Department needs to be restrained. The nonstop humiliation of young black and Hispanic New Yorkers, including children, by police officers who feel no obligation to treat them fairly or with any respect at all is an abomination. That many of the officers engaged in the mistreatment are black or Latino themselves is shameful.
. . .
An overwhelming 84 percent of the stops in the first three-quarters of 2009 were of black or Hispanic New Yorkers. It is incredible how few of the stops yielded any law enforcement benefit. Contraband, which usually means drugs, was found in only 1.6 percent of the stops of black New Yorkers. For Hispanics, it was just 1.5 percent. For whites, who are stopped far less frequently, contraband was found 2.2 percent of the time.
The percentages of stops that yielded weapons were even smaller. Weapons were found on just 1.1 percent of the blacks stopped, 1.4 percent of the Hispanics, and 1.7 percent of the whites. Only about 6 percent of stops result in an arrest for any reason.
"Court: Sentence for millennium plotter too lenient"The A.P. story is available here on the Washington Post site.
Miller on Third-Party Consent Searches
Jason C. Miller has posted When is a Parent’s Authority Apparent? Reconsidering Third Party Consent Searches of an Adult Child’s Private Bedroom and Property (Criminal Justice, Vol. 24, pp. 34-37, Winter 2010) on SSRN. Here is the abstract:
The question of a parent’s authority to consent to the search of the room or property of a minor child is not difficult. But whether a parent’s consent is enough to satisfy the Fourth Amendment in the search of an adult child’s private bedroom, and the property in that room, is a more difficult question. Some courts have applied a presumption of control to parent-child relationships regardless of the age or situation, while others have recognized that such a presumption is not appropriate in all circumstances.
Because there are different kinds of parent-child relationships and different relationships between parents and their adult child’s private bedroom and closed containers within the parent’s home, this paper argues that courts should not apply a presumption of control between parents and their adult children and require police to develop at least some understanding of the situation before accepting a parent's consent to search an adult child's private room and property.
Cohen & Smith on the Racial Geography of the Federal Death Penalty
Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers - a discussion begun well before the founding of our Constitution - continues to have relevance today. After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.