Wednesday, March 23, 2011
Tuesday, March 22, 2011
In Huber v. New Jersey Department of Environmental Protection, Justice Alito prepared a statement, joined in by the Chief Justice and Justices Scalia and Thomas, agreeing with denial of cert "because this case comes to us on review of a decision by a state intermediate appellate court" but stating, "This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement."
The story is from the San Diego Union Tribune:
Sacramento — The Assembly Public Safety Committee Tuesday approved legislation to crack open the now-secretive clemency process.
The unanimous vote delivered an early victory to prosecutors and families furious over former Gov. Arnold Schwarzenegger’s surprise order to more than halve the prison sentence imposed on the son of a political ally involved in a murder at San Diego State University.
. . .
Assembly Bill 648 would require that prisoners applying for early release or a pardon notify county prosecutors, who then would inform victims and their families who may want to protest. The notice would have to be given 30 days before a governor can act on the request.
Monday, March 21, 2011
Issue summaries are from ScotusBlog, which also links to papers and opinions below:
- Maples v. Allen: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
- Rehberg v. Paulk: Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
Sunday, March 20, 2011
|1||468||An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011
|2||413||Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
University of Texas School of Law,
Date posted to database: February 4, 2011
|3||320||Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011 [4th last week]
|4||318||EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Wouter P. J. Wils,
Date posted to database: February 12, 2011 [5th last week]
|5||268||Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause
Jordan M. Barry,
University of San Diego - School of Law,
Date posted to database: February 11, 2011 [6th last week]
|6||260||Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
Georgetown University - Law Center,
Date posted to database: February 14, 2011 [7th last week]
|7||241||Sorting Guilty Minds
Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois,
Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: February 24, 2011 [new to top ten]
|8||241||'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011
|9||198||Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons
Francis X. Shen, Owen D. Jones,
Vanderbilt Law School, Vanderbilt University - Law School & Department of Biological Sciences,
Date posted to database: February 24, 2011 [new to top ten]
|10||175||Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: January 27, 2011 [new to top ten]
Saturday, March 19, 2011
Issue summaries are from ScotusBlog, which also links to briefs and opinions below:
Monday, March 21
- Davis v. US: Ordinarily, prosecutors may not use evidence at trial if the evidence was obtained in a way that violated the suspect’s right to be free from unreasonable searches and seizures under the Fourth Amendment. The Court has recognized a “good faith” exception to this “exclusionary rule.” Does the good faith exception apply when a search was lawful under the cases at the time the search occurred, but by the time of the trial the law has changed and made clear that the search was unlawful?
- Tolentino v. New York: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?
Wednesday, March 23
- Turner v. Rogers: Whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for violating a state court order, and whether this is the kind of case that the Supreme Court can consider.
- J.D.B. v. North Carolina: Criminal suspects are entitled to Miranda warnings if they are questioned while in police custody. A person generally is considered to be “in custody” if a reasonable person in the same circumstances would believe that he was not free to leave. The question is whether courts should consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes.
Despite the special stigma attached to the charge of treason and despite the fact that crimes of espionage and sabotage against the United States attract accusations of disloyalty, infidelity, and betrayal when they are committed by its own citizens, it is mysterious why one’s nationality should be thought to be significant in evaluating one’s culpability. This Article examines the idea of betraying or being disloyal to one’s country as a matter of criminal law by addressing two broad questions: "What does it mean to be disloyal to the country?" and "Is disloyalty morally blameworthy?" In answering the first question, this Article argues that, as a general matter, an American is condemned as a criminal of disloyalty if he or she participates in efforts, either directly or by helping others engaged in such efforts, to directly undermine core institutional resources the United States requires to protect itself or otherwise advance its interests by force. In addressing the second question, this Article asks: Is there a duty not to be disloyal? If so, where does the duty come from, and what exactly is wrong with betraying one’s country? This Article canvasses various arguments for the existence such an obligation and argues that most of the standard accounts fail. This Article further argues that we should reinterpret the wrong of disloyalty crimes as involving not betrayal or disloyalty, but transgression of political boundaries. That is, the relevant wrong here is rooted in the idea of separation of powers between citizens and the state, and we should reconceive crimes of disloyalty as crimes of "political trespass" or "foreign relations vigilantism" and evaluate the moral rights and wrongs of these behaviors accordingly. Thinking of these crimes in this way has the virtue of helping us avoid the confusing and emotional talk of loyalty, patriotism, and fidelity and focus on what is truly at stake, which is power - who has it, what one can do with it, and how its particular allocation and uses are justified.
Friday, March 18, 2011
Robert Shuman-Powell has posted Giles v. California: A Move Toward Equilibrium in Confrontation Clause Jurisprudence on SSRN. Here is the abstract:
In Giles v. California, the Supreme Court of the United States considered whether California’s interpretation of the doctrine of forfeiture by wrongdoing, obviating purposeful intent, was an established exception to the Confrontation Clause at the time of the founding. The Court held that it was not; a defendant who purposely intends and succeeds in preventing a witness from testifying forfeits his right to confront him.
Carissa Byrne Hessick (pictured) and F. Andrew Hessick III (both of Arizona State, Sandra Day O'Connor College of Law and Arizona State University - Sandra Day O'Connor College of Law) have posted Double Jeopardy as a Limit on Punishment
(Cornell Law Review, Vol. 97, No. 3, 2012) on SSRN. Here is the abstract:
One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing. This Article challenges these conclusions. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle. The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements. The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights. The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.
Alon Harel (pictured) and Eyal Winter (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Department of Economics) have posted) The Case for Discriminatory Sentencing: Why Identical Crimes May Deserve Different Sanctions on SSRN. Here is the abstract:
The traditional premise of criminal law is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to identical sentences. This article provides an efficiency-based rationale for discriminatory sentencing, i.e., establishes circumstances under which identical crimes ought to be subject to differential sentencing. We also establish the relevance of this finding to the practices of sentencing and, in particular, to the Sentencing Guidelines. Most significantly, we establish that the model can explain why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others. Discriminatory sentencing is optimal when criminals confer positive externalities on each other. If a criminal A who imposes (non-reciprocal) large positive externalities on criminal B is punished sufficiently harshly, B would expect A not to commit the crime and, consequently, he would expect not to benefit from the positive externalities conferred on him by A. Given that B's expected benefits are lower than the sanctions sufficient to deter B are also lower than the ones imposed on A. The result can be easily extended to the case of reciprocal externalities. Assume that a criminal A imposes positive externalities on B and B imposes identical positive externalities on A. If A is subject to a sufficiently harsh sanction and B knows this, B would expect A not to perform the crime and herefore would expect not to benefit from the positive externalities otherwise conferred on B. Consequently, a more lenient sanction than the sanction imposed on A would be sufficient to deter B.
Thursday, March 17, 2011
Jesse J. Norris (Beloit College) has posted Who Can Testify About Lab Results after Melendez-Diaz? The Challenge of Surrogate Testimony to the Confrontation Clause (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that a certificate presenting forensic lab results was testimonial evidence, and that defendants thus have the Sixth Amendment right to cross-examine the analyst. Despite this ruling, courts remain divided on the question of surrogate testimony: when can an expert witness, such as a lab supervisor or outside expert, testify in place of the analyst? How this question is answered has enormous consequences for the future of the Confrontation Clause and the criminal justice system more generally. Widespread surrogate testimony threatens to undermine confrontation rights and contribute to false convictions, yet banning it altogether could result in defendants going free whenever the forensic analyst is unavailable and the test cannot be repeated.
Itamar Mann and Omer Shatz have posted The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987-2009 (Unbound: Harvard Journal of the Legal Left, Vol. 6, p. 59, 2010) on SSRN. Here is the abstract:
This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.” Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture. Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.
This paper examines the impact of residential foreclosures and vacancies on violent and property crime. To overcome confounding factors, a difference-in-difference research design is applied to a unique data set containing geocoded foreclosure and crime data from Pittsburgh, Pennsylvania. Results indicate that while foreclosure alone has no effect on crime, violent crime increases by more than 15% once the foreclosed home becomes vacant. Effects on property crime are similar, but less precisely estimated.
The shameful state of contemporary federal grand jury practice has attracted the attention of many scholars. Today’s grand juries (especially at the federal level, but no less so in most states) offer little or no check on government power, and no longer protect Americans from improper or unnecessary prosecutions. Although a number of reforms have been suggested over the years, the author suggests that none of them would wholly restore the institution to its constitutional role, design and purpose. This article advocates a bold reformation of Rules 6 and 7 of the Federal Rules of Criminal Procedure so that prosecutors would be barred from participating in grand jury investigations except when expressly invited by a grand jury to do so. This proposal would be most consistent with grand jury practices of the Founding period and the original intent behind the Fifth Amendment’s Grand Jury Clause.
Wednesday, March 16, 2011
The piece, at ScotusBlog, begins as follows:
The exclusionary rule generally suppresses evidence that police have obtained in violation of the Fourth Amendment. On Monday, March 21, in Tolentino v. New York (No. 09-11556), the Court will consider whether the exclusionary rule applies to pre-existing government documents relating to an individual’s identity, such as DMV records, that are obtained as a direct result of unlawful police conduct under the Fourth Amendment.
Tuesday, March 15, 2011
John H. Blume , Sheri Lynn Johnson and Keir M. Weyble (pictured) (all of Cornell Law School) have posted In Defense of Non-Capital Habeas: A Response to Hoffman and King (Cornell Law Review, Vol. 96, p. 101, 2011) on SSRN. Here is the abstract:
For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time, and effort necessary to provide review in such cases is no longer justifiable and that those resources should be redirected to creating a federal initiative for improving trial-level representation in which states could choose to participate.
Michael M. O'Hear (Marquette University - Law School) has posted Beyond Rehabilitation: A New Theory of Indeterminate Sentencing (American Criminal Law Review, Vol. 47, 2011) on SSRN. Here is the abstract:
Indeterminate sentencing - that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board - fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.