February 20, 2010
"Plain view encourages violations of the Fourth Amendment"
How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.
. . .
Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.
February 19, 2010
"F.B.I., Laying Out Evidence, Closes Anthrax Letters Case"
The investigative summary and the attachments are now accessible to the public and have been posted to the Justice Department Web site at www.usdoj.gov/amerithrax under the Freedom of Information Act. In addition, roughly 2,700 pages of FBI documents related to the Amerithrax case are now accessible to the public and have been posted to the FBI website at http://foia.fbi.gov/foiaindex/amerithrax.htm under the Freedom of Information Act.
Nicholas on Confronting Hidden Declarants
Peter Nicolas (University of Washington School of Law) has posted But What If the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony on SSRN. Here is the abstract:
In Crawford v. Washington, the U.S. Supreme Court re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are generally inadmissible when offered against the accused in a criminal case. Yet in Crawford, the Supreme Court held that former testimony is admissible against the accused (despite the fact that it is “testimonial”) if the person who gave the former testimony is unavailable to testify and the accused had a prior opportunity to cross-examine the person.
This manuscript addresses the hidden hearsay and Confrontation Clause problems that arise when an effort is made to prove an unavailable witness’s former testimony through the use of a transcript or stenographic notes, or when the former testimony consists of hearsay statements made by third persons. The manuscript demonstrates that, post-Crawford, these additional layers of hearsay are often testimonial statements, and that the accused thus has a right to confront the court reporter or third person who made the statement, absent a historical exception. The manuscript then demonstrates that, historically, in both the United States and England, when efforts were made to prove former testimony, the accused always had the ability to confront such hidden declarants. Finally, the manuscript proposes practical ways of satisfying the Confrontation Clause that minimize the need for court reporters to appear at trial.
February 18, 2010
"University of Texas Symposium - White Collar Crime"Ellen Podgor has the story at White Collar Crime Prof Blog.
"Fourth Amendment news--Gov't collecting DNA from all?"This post at FourthAmendment.com links to this article questioning what is done with the results of DNA testing on infants.
Gershowitz on Jury Trials and Drunk Driving
Adam M. Gershowitz (University of Houston Law Center) has posted Twelve Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases on SSRN. Here is the abstract:
Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.
February 17, 2010
"Cruel and Unusual Punishments"The post is at ReligiousLeftLaw.com inspired by the recent death of "criminal turned criminologist" John Irwin.
Taslitz on Fourth Amendment Federalism and the American Poor
Andrew E. Taslitz (Howard University - School of Law) has posted Fourth Amendment Federalism and the Silencing of the American Poor (Chicago-Kent Law Review, Forthcoming) on SSRN. Here is the abstract:
In a recent case, Virginia v. Moore, the United States Supreme Court held that it was irrelevant under the Fourth Amendment that police made in arrest contrary to a state statute prohibiting arrest for certain minor violations. In doing so, the Court declared that the Fourth Amendment may not vary from "place to place." This paper takes issue with that statement, both as being descriptively incorrect given contrary precedent and as being unwise constitutional policy. Specifically, the paper argues that poor, urban, racial minorities are ill-represented on matters of state criminal justice policy and lawmaking, though they receive better represetation of their views at the local level. To allow the state to bar arrests for minor offenses but to provide no remedy grants police discretion to violate the statute with impunity – violation most likely to be visited upon precisely the groups with the least political representation at the state level. That limited power, moreover, means that ordinary political mechanisms will not work to right this balance. Moreover, those groups most hurt by the state legislation are most likely to favor therapeutic over punitive approaches to crime. By disempowering these groups, the Court thus further amplifies excessively punitive punishment philosophies. To let the state recognize that its interest in arrest for minor offenses is too small to justify an arrest yet to ignore that conclusion in engaging in Fourth Amendment reasonableness balancing is thus to magnify existing criminal justice policy distortions and to undermine voice for those most affected by such distortions. The article ends with a response to seven likely objections to the argument.
Hessick on Race and Gender as Explicit Sentencing Factors
Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Race and Gender as Explicit Sentencing Factors (Journal of Gender, Race and Justice, Vol. 13, 2010) on SSRN. Here is the abstract:
This Symposium Article briefly traces the history of race and gender as explicit sentencing factors, identifies how the explicit treatment differed for race versus gender at sentencing, and explores how those differences persist in the modern discussion about sentencing policy. Historically, there were several differences between race and gender as sentencing factors, including the persistence of system-wide sentencing distinctions based on gender long after such distinctions based on race were prohibited. And while system-wide distinctions tended to disadvantage both racial minorities and women, distinctions made by individual judges when sentencing specific defendants resulted in longer sentences for racial minorities while women generally received shorter sentences than men convicted of similar offenses.
Although modern sentencing systems do not permit the explicit consideration of race or gender, they continue to play roles in debates over modern sentencing policy. Specifically, lawmakers are criticized for enacting policies that are thought to be based on racial stereotypes, and they are also criticized for failing to consider the differences between men and women when enacting other policies. Given the different roles that race and gender play in the modern sentencing policy discussion, it appears that legal commentators who study gender at sentencing may be working at cross purposes with those who study race at sentencing.
February 16, 2010
"An increase in the Court’s summary docket"
This post by Kevin Russell at ScotusBlog is especially interesting given how often the Court uses summary reversals in criminal cases--8 of the 9 summary reversals so far this term. In part:
There is much speculation whether this trend will continue and whether it is part of a conscious effort by the Court. Summary reversals tend to be directed at correcting an error in a particular case, rather than resolving circuit conflicts or establishing general principles of law, which is what the Supreme Court spends the vast majority of its time doing in its typical argued cases. As a consequence, an increase in summary reversals has the effect of sending a signal to the lower courts that they cannot count on getting by with sloppy (or ideological) decision making simply because the opinion does not implicate a circuit split, at least in criminal cases.
Chin & Linderbaum on the Supreme Court's Special Docket
Gabriel J. Chin (pictured) and Sara Lindenbaum (both of University of Arizona James E. Rogers College of Law) have posted Reaching Out to Do Justice: The Rise and Fall of the Special Docket of the U.S. Supreme Court on SSRN. Here is the abstract:
In 1964-1967, the Supreme Court put three complicated cases involving individuals in a permanent state of suspension on what would come to be known as the “Special Docket.” Under this largely unknown feature of the Court’s practice, the cases were held without decision until after the parties involved died in the 1990s. Although the impulse to mercy in these cases was understandable (all involved mental illness and two were capital cases), as a small experiment, it must be adjudged a failure, because there is a reasonable possibility that in each case, just outcomes were not achieved. Assuming that the Court thought judicial intervention was necessary to avoid an unjust outcome, using the normal tools of decision might have been better.
February 15, 2010
Mikos on State Taxation of Marijuana Distribution
Robert A. Mikos (Vanderbilt University - School of Law) has posted Why Crime Doesn't Pay: Thoughts on State Taxation of Marijuana Distribution and Other Federal Crimes on SSRN. Here is the abstract:
The financial crisis has breathed new life into proposals to reform marijuana law. Commentators suggest that legalizing and taxing marijuana could generate substantial revenues for beleaguered state governments-as much as $1.4 billion for California alone. This Article, however, suggests that commentators have grossly underestimated the difficulty of collecting a tax on a drug that remains illegal under federal law. The federal ban on marijuana will impair state tax collections for two reasons. First, by giving marijuana distributors powerful incentives to stay small and operate underground, the federal ban will make it difficult for states to monitor marijuana distribution and, consequently, to detect and deter tax evasion. In theory, states could bolster deterrence by increasing sanctions for tax evasion, but doing so seems politically infeasible and may not even work. Second, even if states could find a way to monitor marijuana distribution effectively-for example, by licensing distributors-such monitoring could backfire. Any information the states gather on marijuana distribution could be seized by federal authorities and used to impose federal sanctions on distributors, giving them added incentive to evade state tax authorities. For both reasons, a marijuana tax may not be the budget panacea proponents claim it would be. To be sure, there are reasonable arguments favoring legalization; rescuing states from dire fiscal straits, however, is not one of them.
Reinert on Proportionality and Conditions of Confinement
Alex Reinert (Benjamin N. Cardozo School of Law -- Yeshiva University) has posted Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory? (Fordham Urban Law Journal, Vol. 36, p. 53, 2009) on SSRN. Here is the abstract:
The Eighth Amendment’s prohibition of “cruel and unusual punishments” conveys different meanings in different contexts. When challenges are brought to prison conditions, a range of cases that encompasses claims such as overcrowding, excessive uses of force, and failure to provide adequate medical care, a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. When challenges are brought to the proportionality of criminal sentences, the Court compares the severity of the sentence with the seriousness of the criminal offense of incarceration. In both sets of cases, although courts purport to review a “punishment” for its conformity with the Eighth Amendment, different standards contribute to the ultimate resolution. This paper questions whether these differences are justified and whether there are ways to bridge the gap between proportionality review and conditions of confinement review.
In particular, I argue here that there are two ways in which elements of proportionality litigation could invigorate conditions of confinement review. First, I suggest that the focus on subjective state of mind in conditions of confinement litigation is called into doubt by proportionality jurisprudence. Second, I propose that the deference to legislators which is assumed in proportionality litigation is not as easily translated into conditions of confinement cases, where the delegation which such deference implies may not be present or appropriate. I conclude by examining three specific areas of conditions jurisprudence in which proportionality principles could be usefully applied.
February 14, 2010
"A Previous Death at the Hand of Alabama Suspect"The New York Times reports here on allegations that the suspect's true culpability in the previous incident was covered up.
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