August 20, 2011
Lee on Fourth Amendment Reasonableness Analysis
Cynthia Lee (George Washington University Law School) has posted Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis (Mississippi Law Journal, Forthcoming) on SSRN. Here is the abstract:
This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, the modern Court has increasingly abandoned the warrant preference view. Instead of interpreting the Fourth Amendment as expressing a preference for warrants, the modern Court reads the text of the Fourth Amendment as simply requiring reasonableness. In a number of cases, the modern Court has adopted what some have called an originalist approach, assessing the reasonableness of a search based on whether the challenged governmental action was unlawful under the common law at the time of the framing. Part III critiques the Court’s current focus on reasonableness as the touchstone of Fourth Amendment analysis. It starts with what might be called the traditional critique of reasonableness. Under this critique, the current reasonableness inquiry is problematic because it provides insufficient guidance to lower courts and results in rulings that tend to be overly deferential to the government. Part III also provides the left critique of reasonableness. Under this critique, implicit bias may lead police officers to see young men of color on the street as more suspicious than others, which may lead them to stop and search those individuals more frequently than others. Implicit bias may also lead courts to exercise their discretion to decide whether a search is reasonable in ways that favor law enforcement and disfavor Blacks and Latinos who make up the bulk of individuals arrested, tried, and convicted of crimes in the United States. Part IV looks to the future. Professor Lee opines that the Court today stands at a crossroads. It can completely replace the warrant preference model with the reasonableness model of the Fourth Amendment, as it has already done in a few cases, it can return to a robust embrace of the warrant preference view, or it can recognize the virtues of the warrant preference and the reasonableness models and improve upon both. Because the Court is unlikely to return to a robust embrace of warrants, Professor Lee argues that the Court should continue its current path of recognizing both models. Instead of extremely deferential pro-government reasonableness balancing, however, Professor Lee argues that courts should engage in a more stringent form of Fourth Amendment reasonableness review. Borrowing from a small slice of the Court’s equal protection jurisprudence, its rational basis with bite cases, Professor Lee urges courts assessing the reasonableness of a Fourth Amendment search to engage in less deferential reasonableness review with teeth.
"Clemens Prosecutors Request a New Trial"
From the New York Times:
WASHINGTON — Federal prosecutors overseeing the Roger Clemens perjury case said Friday that they made an unintentional error when showing jurors inadmissible evidence that led to Clemens’s mistrial last month. The prosecutors asked a judge to allow a new trial.
. . . .
For the first time, the prosecutors explained how the mistake had occurred, saying they were too bogged down with opening statements, jury selection and jury instructions to realize that they had not conformed some of their exhibits to the judge’s latest rulings.
. . . .
Clemens’s lawyers have argued that the double-jeopardy rule, which prevents someone from being tried twice for the same crime, should spare Clemens from another trial. In court papers filed last month, they argued that prosecutors purposely showed the inadmissible video clip because their case was going poorly.
August 19, 2011
"The Abuse Excuse"
From Crime and Consequences, discussing a death-row appeal:
Jackson's lawyers in the appeal argue that his trial defense failed to present an adequate picture of the sexual, physical and psychological abuse he endured as a child.
Notably, Jackson's brother and sister were not called to testify at trial, reportedly because Jackson's defense believed it would harm his case as his brother suffered the same abuse and has no criminal record.
And there is the fallacy of the abuse excuse. Yes, it's a terrible thing if someone has a bad childhood. But regrettably lots of people do, and very few of them become murderers. The decision to rape and murder remains an act of free will no matter how bad your childhood was.
"A Lawyer in Minnesota Challenges the Accuracy of D.W.I. Breath Tests"
From the New York Times. Here's an excerpt from the Q/A with the lawyer:
Q Please describe what is at issue with this device.
A The machine is called the Intoxilyzer 5000EN. It is manufactured by a Kentucky company that sold the machines to Minnesota law enforcement. It uses infrared technology to measure particulate matter, and then uses a mathematical formula to convert it to what the blood-alcohol level would be.
. . .
Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?
A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal.
Laudan on Appellate Asymmetry
Larry Laudan (Instituto de Investigaciones Filosoficas, UNAM) has posted Detecting Error, Learning from Our Mistakes, and the Appellate Asymmetry on SSRN. Here is the abstract:
This paper investigates the epistemic obstacles posed by a legal system that prevents reversal of acquittals. Because such prevention disincentivizes appeals of non-guilty verdicts by prosecutors, false acquittals are virtually impossible to identify. Apart from entailing that such errors cannot be corrected (since they are not detected), this policy has a more egregious consequence; to wit, that appellate courts have little or no opportunity to learn what kinds of flaws lead to false acquittals. Without such knowledge, the courts are in no position to make or to recommend the sorts of changes that would otherwise allow the system to reform itself by learning from its mistakes. Finally, the appellate asymmetry arguably creates a situation in which rulings from lower court judges are much more likely to favor the defendant than the prosecution. All these problems could be resolved if double jeopardy protection were seriously rethought.
Leong on Traffic Stops
Nancy Leong (University of Denver Sturm College of Law) has posted The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream on SSRN. Here is the abstract:
American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop - a judicially-authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. This paper examines the cultural texts - books, movies, songs - celebrating the open road and juxtaposes them against those documenting the traffic stop. The traffic stop, I conclude, interrupts the open road narrative closely associated with the American dream. Those stopped most frequently - in particular, racial minorities - are consequently denied full participation in an abiding national fantasy.
Gershowitz on Trading a Confession for a Search
Adam M. Gershowitz (University of Houston Law Center) has posted Trading a Confession for a Search: A Proposal to Deter Texting While Driving and Warrantless Cell Phone Searches on SSRN. Here is the abstract:
Dozens of state legislatures have recently criminalized texting while driving. Unfortunately, these statutes are deeply flawed because they are under-inclusive, ambiguous, and impose punishments so light that they are unlikely to deter drivers. At the same time, by criminalizing texting while driving, legislatures have empowered police to conduct warrantless searches of drivers’ cell phones under the Fourth Amendment’s search incident to arrest and automobile exceptions. The disconnect is stark: For a crime that carries a $20 fine in some states, police are free to search a driver’s text messages, emails, internet browsing history, facebook account, photos, and countless other applications without a warrant.
Because texting while driving is just as dangerous as drunk driving, it should be seriously punished with stiff fines, possible jail time, license suspensions, and interlock devices that block recidivists’ phones from texting while driving. More severe punishment alone will not solve the problem however and it will do nothing to eliminate police authority to conduct warrantless cell phone searches. This article therefore proposes that legislatures adopt an exchange approach rarely utilized in the criminal justice system. Drivers stopped for texting while driving should be given the opportunity to immediately confess to texting while driving in exchange for avoiding a search of their phones. Allowing suspects to exchange a confession for a search will encourage them to plead guilty more often and more quickly, thus enhancing general deterrence. The exchange will also reduce invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.
August 18, 2011
Arlen on the Organizational Sentencing Guidelines
Jennifer Arlen (New York University School of Law) has posted The Failure of the Organizational Sentencing Guidelines on SSRN. Here is the abstract:
To deter corporate crime, corporate sanctions must be structured to induce larger firms to help deter crime by their managers and other employees. In particular, firms must be induced to detect and report wrongdoing, and to cooperate with the government’s effort to identify and sanction the individuals responsible for the crime. Federal authorities can achieve this goal if, but only if, corporate criminal and civil sanctions are structured to ensure that firms face lower expected sanctions if they detect, report, and cooperate than if they do not. In the U.S., corporate criminal sanctions for most firms convicted of federal crimes are determined by the Organizational Sentencing Guidelines, which were intended to encourage firms to adopt effective compliance programs, self-report and cooperate through the promise of a reduced fine for firms engaging in this desired conduct, in some circumstances. This Article evaluates whether the mitigation provisions of the Organizational Sentencing Guidelines are effective at achieving this goal. It shows that they are not because the Guidelines provide too little mitigation. Moreover, and perversely, the Guidelines are particularly ineffective when corporate detection and investigation is most important: in cases involving crimes committed by managers of large firms. The Sentencing Commission should reform the Guidelines to better encourage corporate monitoring, reporting and cooperation.
Rosenzweig on the Evolution of Wiretapping
Paul Rosenzweig (George Washington University School of Law) has posted The Evolution of Wiretapping (Engage: The Journal of the Federalist Society, Vol. 12, No. 2, Fall 2011, Paul Rosenzweig,CYBERWARFARE: HOW CONFLICTS IN CYBERSPACE ARE CHALLENGING AMERICA AND CHANGING THE WORLD, Praeger, 2012) on SSRN. Here is the abstract:
The technology for communications through cyberspace have begun to outstrip the capabilities of governments to intercept those communications. This is a circumstance that has occurred in the past and likely will recur in the future. This paper traces some of that history and concludes that the questions involved are more ones of policy than of law.
Sheyn on Specific Intent and White Collar Crime Statutes
Elizabeth R. Sheyn has posted Toward a Specific Intent Requirement in White Collar Crime Statutes: How the Patient Protection and Affordable Care Act of 2010 Sheds Light on the 'General Intent Revolution' on SSRN. Here is the abstract:
The recent passage of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, “ACA”), has altered the landscape of health care and health insurance. However, it has also served to highlight the revolution in the intent requirement for white collar crimes. In particular, the ACA lowers the intent requirement for several health care fraud statutes from specific to general intent, which is consistent with the federal courts’ recent trend of not requiring proof of the defendant’s knowledge of the law before finding a violation of a particular statute proscribing a so-called white collar crime. In contrast to some of the ACA’s other, substantive provisions, the constitutionality of these provisions has not been considered by the federal courts or evaluated by scholars.
This Article describes this “intent revolution” against the backdrop of the ACA and other white collar crime statutes and offers some thoughts on why and how it should be curbed, particularly in the context of white collar offenses. First, the Article provides a background understanding of white collar crime statutes, focusing specifically on the mens rea requirement component. Second, it delves in depth into health care fraud and describes typical health care fraud remedies. Third, the Article outlines the relevant portions of the ACA touching briefly on very recent challenges to other aspects of the ACA, such as the individual mandate requirement. Finally, the Article analyzes the dangers of a lowered intent requirement broadly and in the context of the ACA and provides a suggestion regarding how these dangers should be addressed with respect to the ACA’s problematic provisions.
August 17, 2011
Morse on Gene-Environment Interactions, Criminal Responsibility, and Sentencing
Stephen Morse (University of Pennsylvania Law School) has posted Gene-Environment Interactions, Criminal Responsibility, and Sentencing (GENE INTERACTIONS IN DEVELOPMENTAL PSYCHOLOGY, Kenneth A. Dodge, Michael Rutter, eds., Guilford Press, 2011) on SSRN. Here is the abstract:
This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no relation to responsibility per se, but they may be relevant to culpability if valid research discloses an association between GxE and a genuine excusing or mitigating condition. The chapter then turns to sentencing and considers whether GxE is relevant to mitigation and aggravation, and proposes that the same considerations governing responsibility ascriptions apply to mitigation and that the prediction of future danger will be the most common application for aggravation. It concludes by considering briefly how knowledge of GxE might otherwise influence criminal justice policy and practice.
Findley on Rethinking the Search for Truth
Keith A. Findley (University of Wisconsin Law School) has posted Adversarial Inquisitions: Rethinking the Search for the Truth (New York Law Review, Forthcoming) on SSRN. Here is the abstract:
The growing number of exonerations of wrongly convicted individuals has fostered new interest in alternative mechanisms for factfinding in criminal cases, including some recent suggestions for special "innocence procedures." Such procedures would be optional, and available only in cases in which the defendant claims factual innocence. Discussion about alternative methods of investigating and adjudicating facts in criminal cases inevitably renews longstanding debates about the relative merits of inquisitorial versus adversarial system. This article analyzes and critiques some of the recent suggestions for "innocence procedures," concluding that most do both too much and too little to enhance adjudicative reliability. The article then draws on the strengths of both the adversary and inquisitorial systems to propose an alternative model that might promise enhanced reliability, and thus both better justice and public safety.
Flanders on Retribution and Reform
What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we are now witnessing the rise of a uniquely American brand of “harsh justice” in the United States. It would seem natural to ask whether there is any correlation between these two independently significant events, that is, whether the philosophical developments in punishment theory and the practical increase in harsh punishment are related. In particular, has retributive theory in some way contributed to the harshness of our present punishment practice? If it has, should that impact how we evaluate philosophical retributivism?
Whitman has argued in a series of articles, a book, and testimony that it is no coincidence that “the age of the renaissance of neo-retributivism [has] also been the age of epochally harsh punishment.” This Article uses Whitman’s assertion as a springboard for assessing the present state of retributive theory and its relevance, or irrelevance, to practice - especially to our contemporary practice of harsh justice in punishment. Whitman’s diagnosis of the state of Anglo-American punishment theory is useful because, in a particularly forceful manner, he asserts that theory and practice should be related in a certain way and that it is problematic when they are not. He claims that retributive theory, when it is not practically useless for correcting our punishment practices, is positively harmful. There is something deeply correct in Whitman’s allegation, and some versions of retributivism are especially vulnerable to it. In this Article, I defend a version of retributive theory against Whitman’s charge.
The second is Can Retributivism Be Progressive? A Reply to Professor Gray and Jonathan Huber (Maryland Law Review, Vol. 70, p. 166, 2010). Here is the abstract:
Professor David Gray and Jonathan Huber have done a great service in their Response to my Article, “Retribution and Reform.” They have helped me to see the wrong turns in my argument and the areas in which my argument needs to be clarified and amplified. In this brief Reply, I attempt to respond to some of their concerns.
August 16, 2011
Korkor & Ryznar on Anti-Bribery Legislation in the US and the UK
Samer Korkor and Margaret Ryznar have posted Anti-Bribery Legislation in the United States and United Kingdom: A Comparative Analysis of Scope and Sentencing (Missouri Law Review, Vol. 76, pp. 415-453, 2011) on SSRN. Here is the abstract:
Lawmakers and prosecutors continue to take aim at a major subset of global corruption - corporate bribery of foreign government officials. Specifically, while the enforcement of the Foreign Corrupt Practices Act in the United States has risen to new records, the United Kingdom has revolutionized its anti-bribery law following global criticism of its previously relaxed legal regime. Both U.S. and U.K. anti-bribery laws, furthermore, apply extraterritorially and have the capability to entangle even the largest multinational companies in their legal frameworks. These all-encompassing frameworks hold significant consequences for both corporations and their employees, but the increasing power of anti-bribery law raises important questions regarding the proper scope of legislation on the subject, as well as the sentencing approaches to these crimes.
Shajnfelt on the Eleventh Circuit's Selective Assault on Sentencing Discretion
Adam Shajnfeld (Cleary Gottlieb Steen & Hamilton LLP) has posted The Eleventh Circuit's Selective Assault on Sentencing Discretion (University of Miami Law Review, Vol. 65, p. 1133, 2011) on SSRN. Here is the abstract:
Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey. This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three principal arguments. First, Irey represents a serious and unlawful encroachment on district courts’ sentencing discretion, one based in part on misguided notions of culpability, mental illness, deterrence, the severity of supervised release, and obeisance to the Sentencing Guidelines. Second, Irey’s lasting impact is likely an increased yet largely unjustified pressure on district courts to sentence defendants more harshly, particularly for sexual offenses. Third, Irey and its predecessors demonstrate that in reviewing for unreasonableness, the Eleventh Circuit unnecessarily and unfairly wields a single-edged sword, capable of striking what is perceived as an unduly lenient sentence yet impotent against an unduly harsh one. Recognizing the pretextual nature of much sentencing discourse - in which stakeholders inconsistently advance varyingly deferential degrees of appellate review suspiciously consonant with the practical sentencing outcomes they desire - the article concludes with a call for appellate judges to transcend such partisanship and exercise dispassionate, reasoned, and balanced (i.e., double-edged) sentencing review.
August 15, 2011
Vincent on the Normative Authority of the Mind Sciences
Nicole A. Vincent (Department of Philosophy, Macquarie University) has posted Legal Responsibility Adjudication and the Normative Authority of the Mind Sciences (Philosophical Explorations, Vol. 14, No. 3, pp. 315-331, 2011) on SSRN. Here is the abstract:
In the field of ‘neurolaw’, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have often – weighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate suggestions about what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility – namely, that responsibility tracks mental capacity.
Christensen on Allocating Loss in Ponzi Schemes
Grant Christensen (University of Toledo - College of Law) has posted Allocating Loss in Securities Fraud: Time to Adopt a Uniform Rule for the Special Case of Ponzi Schemes (William and Mary Business Law Review, Forthcoming) on SSRN. Here is the abstract:
The Global Financial Crisis precipitated a condensing of capital and a fall in global equities markets that resulted not solely in the necessity of government bailouts of the financial industry but also exposed a number of Ponzi schemes that collectively will cost investors tens of billions of dollars. With a new wave of litigation by innocent investors against Ponzi scheme operators just beginning, and likely to take years, it becomes important to clearly identify the methodologies used to value the loss and allocate existing assets among remaining creditors. To that end I offer this article to argue that courts ought to use a comparatively new approach – the loss to the losing victim methodology originally pioneered in criminal law – to determine how equally innocent victims share the losses these schemes precipitated. By standardizing the calculation of loss to investors in both criminal and civil law, the courts will not only make the determination of loss considerably easier, but also more equitable.
No Change of Heart for Offender (Kolber)
From today's New York Law Journal (paywall):
A woman who was let out of jail to seek a heart transplant has been re-incarcerated on a new misdemeanor theft charge. Diane McCloud was released from a 15-month sentence earlier this year for two petit larceny charges on the condition she avoid re-arrest and take all necessary steps to get a heart transplant (NYLJ, Jan. 24). But Ms. McCloud was re-incarcerated on Friday for acting in concert with another defendant to steal about $500 in merchandise, including diet pills and teeth-whitening strips, from an Oceanside CVS/pharmacy on July 16.
According to the article, she will now be ineligible to receive a new heart, and doctors say she is likely to die in less than six months.
August 14, 2011
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