October 15, 2011
Logan on "Mosaic Theory" and Megan's Laws
This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational “mosaic” of personal life that would not otherwise practically exist.
With the Supreme Court’s recent grant of certiorari in Maynard (docketed sub nom. United States v. Jones), mosaic theory will soon be the subject of considerable debate. The essay seeks to contribute to this debate, pushing the applicable bounds of the theory and allowing for a more robust examination of RCN, as well as similar data-based social control strategies likely to emerge in coming years.
Serota on Stare Decisis and the Mandated Disclosure of Exculpatory Evidence under Brady v. Maryland
An array of federal district court judges frustrated with the limited scope of the Supreme Court’s approach to constitutionally mandated disclosure - otherwise known as the Brady doctrine - has reinterpreted it so as to eliminate the materiality requirement in the pretrial context. After witnessing the prosecutorial abuse and chronic underdisclosure that Brady’s materiality requirement invites, as well as observing the failure of discovery reformers to remedy the doctrine’s shortcomings through other channels, these judges have provided a judicial solution by ignoring Supreme Court precedent in order to avoid the limitation on the government’s disclosure obligation that the materiality requirement creates. This practice amounts to nothing less than an abrogation of stare decisis based on the view that policy concerns necessitate this much-needed reform of the criminal discovery system. The question that remains - and that I explore in this Essay - is whether the instrumentalism underlying their decisions is acceptable, or even desirable, in light of the constitutional and normative foundations upon which stare decisis rests.
This Essay proceeds in three parts. Part I provides a brief introduction to the Brady doctrine with a particular emphasis on the problems caused by the materiality standard’s application in the pretrial context, and then discusses the unsuccessful efforts that have been made to reform the rules of discovery governing the pretrial disclosure of evidence in criminal cases. Part II first contrasts the Supreme Court’s post-Brady cases with the doctrinal approach that some trial judges have taken to eliminate Brady’s materiality requirement in the pretrial context, and then concludes with a discussion of several federal district and appellate court decisions that have rejected this approach to Brady reform. Part III presents the doctrine of stare decisis and discusses its constitutional foundations as well as the rule of law and judicial economy benefits it redounds to our legal system. With these benefits in mind, I then explore the viability of the instrumentalist approach to stare decisis employed by the trial judges who have eliminated the materiality requirement. I conclude that it is not viable, and that criminal discovery reform must therefore proceed through other means.
October 14, 2011
"Could PTSD Be a Defense in Seal Beach Shooting?"
New information about Seal Beach shooting suspect Scott Dekraai has some wondering whether he will get off scot-free.
Court records indicate that Dekraai has suffered from Post-Traumatic Stress Disorder since 2007. Medical documentation also suggests that contact with his ex-wife is incredibly stressful and unhealthy.
"U.S. Bishop Is Charged With Failing to Report Abuse"
From the New York Times:
KANSAS CITY, Mo. — A bishop in the Roman Catholic Church has been indicted for failure to report suspected child abuse, the first time in the 25-year history of the church’s sex abuse scandals that the leader of an American diocese has been held criminally liable for the behavior of a priest he supervised.
The indictment of the bishop, Robert W. Finn, and the Diocese of Kansas City-St. Joseph by a county grand jury was announced Friday. Each was charged with one misdemeanor count involving a priest accused of taking pornographic photographs of girls as recently as this year. They pleaded not guilty.
The case caused an uproar among Catholics in Kansas City this year when Bishop Finn acknowledged that he knew of the photographs last December but did not turn them over to the police until May. During that time, the priest, the Rev. Shawn Ratigan, allegedly continued to attend church events with children, and took lewd photographs of another young girl.
Cassidy & Massing on Renunciation as a Defense to Criminal Conspiracy
Michael Cassidy (Boston College Law School, pictured) and Gregory Massing have posted The Model Penal Code’s Wrong Turn: Renunciation as a Defense to Criminal Conspiracy (Florida Law Review, April, 2012) on SSRN. Here is the abstract:
While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly and involve extensive coordination among multiple actors.
Many states follow the Model Penal Code approach and recognize the renunciation defense, without defining its precise contours or limits. Other states are still struggling with the issue, and have yet to accept or reject the renunciation doctrine. After surveying state and federal law across the United States, the authors unpack proposed policy arguments for and against the renunciation defense. The authors conclude that none of the pragmatic justifications advanced by the ALI in support of the doctrine survive close scrutiny. Moreover, renunciation is theoretically inconsistent with the social harm caused by an actor’s participation in a conspiracy, in contrast to the absence of harm present with other inchoate offenses such as incomplete attempts. In the authors’ view, renunciation is best understood historically as a special form of legislative grace designed to counteract some of the harsher aspects of conspiracy law. The authors argue that states grappling with this issue should decline to recognize a renunciation defense, and instead focus their attention on eliminating some of the more notable inequities of conspiracy liability.
Davis & Leo on Determinations of Voluntariness for Admissibility of Confessions
Deborah Davis (University of Nevada, Reno) and Richard A. Leo (University of San Francisco - School of Law, pictured) have posted 'Interrogation-Related Regulatory Decline:' Ego-Depletion, Failures of Self-Regulation and the Decision to Confess (Univ. of San Francisco Law Research Paper No. 2011-24) on SSRN. Here is the abstract:
As reflected in rulings ranging from Trial Courts to the U.S. Supreme Court, our judiciary commonly views as “voluntary,” and admits into evidence, interrogation-induced confessions obtained under conditions entailing stressors sufficient to severely compromise or eliminate the rational decision making capacities and self-regulation abilities necessary to justify such a view. Such decisions reflect, and sometimes explicitly state, assumptions soundly contradicted by science regarding the capacity of normal suspects lacking mental defect to withstand such stressors as severe fatigue, sleep deprivation, emotional distress – and aversive interrogation length, tactics and circumstances – and nevertheless resist the powerful pressures of the interrogation to self-incriminate. Notwithstanding excessive length and other severe interrogation-related stressors and tactics demonstrably associated with elicitation of false confessions, judges overwhelmingly admit confessions into evidence and juries overwhelmingly convict. In this review, we introduce the concept of “interrogation-related regulatory decline” (IRRD) – or decline in the self-regulation abilities necessary to resist the forces of influence inherent to interrogation.
We review scientific evidence of the unexpected ease with which self-regulation abilities can be significantly compromised, with the hope that this evidence can (1) encourage more evidence-based objectivity, realism, clarity and specificity in the criteria for assessing voluntariness underlying admissibility decisions, (2) promote reforms aimed at prevention of interrogation practices entailing substantial risk of severe interrogation-related regulatory decline, and (3) encourage more scholarly research on acute sources of interrogative suggestibility.
October 13, 2011
"Would-Be Plane Bomber Pleads Guilty, Ending Trial"
From the New York Times:
DETROIT — The trial of a man accused of trying to blow up a commercial airliner with a bomb sewed into his underwear ended Wednesday, just a day after it had begun, when Umar Farouk Abdulmutallab, the accused, abruptly announced that he would plead guilty to all of the federal counts against him.
Prosecutors and federal agents seemed stunned, if pleased, and declared that the plea was evidence that the American court system, as opposed to a military tribunal, could bring a suitable outcome to a terrorism case. Anthony Chambers, a legal adviser assigned to Mr. Abdulmutallab, who was representing himself in court, said that he was disappointed with Mr. Abdulmutallab’s last-moment decision, but that it was entirely his choice.
. . .
After telling Judge Nancy G. Edmunds that he was indeed pleading guilty to each count against him, Mr. Abdulmutallab read a statement that he had written saying that his behavior may have violated American law but that it was in keeping with Muslim law, and that his efforts to harm Americans were retribution for American acts around the world.
"Oral Argument in Florence v. Board of Chosen Freeholders of the County of Burlington"
Thoughts from Orin Kerr at The Volokh Conspiracy on the strip-search case:
My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.
Smith on Constitutional Innocence Protection in Pre-trial, Trial, and Post-Conviction Procedures
The remainder of the article is divided into three parts. Part One explores innocence protection as an animating value of constitutional criminal procedure (Section A) and describes how developments in the way that crimes are investigated, proved and re-examined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Section B). Part Two explores how re-aligning the importance of innocence-protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Section A provides an overview of how the Court has treated innocence claims to date. It considers gateway innocence claims (those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial) and freestanding innocence claims (in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial). Section B articulates a three-tiered framework (conviction relief, execution relief, gateway innocence) for adjudicating such claims. Part III offers concluding thoughts, including a preliminary consideration of the ramifications the decline of the trial as the center of gravity for innocence protection has on the regulation of pretrial procedures.
Biggest insider trading sentence ever
From the New York Times, which also discusses more generally the increase in white-collar sentences in recent years:
The fallen hedge fund billionaire Raj Rajaratnam received the longest prison sentence ever for insider trading on Thursday, a watershed moment in the government’s aggressive two-year campaign to root out the illegal exchange of confidential information on Wall Street.
Judge Richard J. Holwell sentenced Mr. Rajaratnam, the former head of the Galleon Group hedge fund, to 11 years in prison and fined him $10 million and ordered him to forfeit $53.8 million. A jury convicted Mr. Rajaratnam of securities fraud and conspiracy in May after a two-month trial.
Markel on Retributive Justice and the Demands of Democratic Citizenship
Dan Markel (Florida State University College of Law) has posted Retributive Justice and the Demands of Democratic Citizenship (Virginia Journal of Criminal Law, Vol. 1, 2012) on SSRN. Here is the abstract:
This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective.
If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status.
Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.
Comments on this draft are invited. The paper is an invited contribution to a new journal at UVa Law, which will also feature published responses from Josh Bowers, Mike Cahill, and Antony Duff and a subsequent reply from me.
Hall on U.S. Passport Revocation for Convicted Sex Offenders
John Alexander Hall (Chapman University - School of Law) has posted Sex Offenders and Child Sex Tourism: The Case for Passport Revocation (Virginia Journal of Social Policy and the Law, Vol. 18, No. 2, Winter 2011) on SSRN. Here is the abstract:
This paper addresses the problem that, under current law, convicted American sex offenders can obtain passports and travel overseas to abuse children sexually. American citizens participate actively in the child sex tourism industry and are estimated to represent a quarter of sex tourists in some destination countries. Many of those citizens have already been convicted and served prison terms for such crimes as child molestation, violent sexual assault, and the sexual abuse of children. Though subject to significant post-incarceration controls within the United States, they are able to obtain a passport and travel to poor countries where they abuse children with no real likelihood of being arrested.
I argue that the current legal regime is inadequate and recommend a new approach: that individuals convicted of specific sex crimes involving children not be permitted to hold a U.S. passport. In this Article I explore the constitutional issues and case law pertaining to passport issuance and revocation, explain the weaknesses in current anti-trafficking and anti-sex crimes legislation, and propose a specific statutory amendment to the Passport Act, including a draft of the proposed legislation.
ABA project for criminal procedure students
The ABA Criminal Justice Section has created "The Citizens Amicus Project" that seeks to get criminal procedures students to contribute to public discussion of the Fourth Amendment. This year's project focuses on warrantless GPS tracking. Further information is available here and after the jump.
This year, the Citizen Amicus Project is looking at the United States v. Jones (warrantless GPS case), please think of directing your students to the website to submit their views on the case.
Citizen Amicus Project Summary:
- · The Citizen Amicus Project seeks to encourage law students to contribute to a national dialogue on constitutional issues.
- · The Citizen Amicus Project exists as a web-based constitutional debate about ongoing Supreme Court cases.
- The goal of the Citizen Amicus Project is to educate, engage, and expand the influence of law student ideas about constitutional issues.
- Similar to formal amicus briefs, the Citizen Amicus Project seeks input from interested parties to help resolve constitutional issues. The goal is to provide a focused and discrete opportunity for law students to contribute to a national legal question that affects law students.
- The top three submissions will be recognized with an annual Citizen Amicus Project certificate award.
An Overview of the Project:
- Every year a single Supreme Court case will be chosen as the focus of the Project. The legal briefs, arguments, and supplemental educational materials on this case will be available on the ABA Citizen Amicus Project website.
- Law students will be encouraged to access the website and submit their views on the constitutional question. Law professors will be encouraged to discuss and frame the question as part of a criminal justice oriented curriculum.
- Law students will write 500-1000 word opinions about the constitutional question presented in a concise and accessible format.
- The result will be a collection of brief legal statements helpful to the Supreme Court and the general public. The opinions obviously will be the personal opinions of the student contributors, and not the ABA. The opinions will be accessible to the Supreme Court and all other citizens, but will not be formally filed as amicus.
- The Citizen Amicus Project submissions will exist as an alternative repository of constitutional analysis from a citizen-student perspective.
October 12, 2011
Argument transcript in immigration/criminal conviction case
The transcript in Judulang v. Holder is here.
Eppich on Issues of Place and Race in the use of "Knock and Talk" Policing
Andrew Eppich has posted Wolf at the Door: Issues of Place and Race in the Use of the 'Knock and Talk' Policing Technique (Boston College Third World Law Journal, Vol. 32, No. 1, 2012) on SSRN. Here is the abstract:
The procedure known as 'knock and talk‛ allows police to approach a dwelling, knock on the door, and ask questions of the inhabitant inside, with the ultimate goal of entry into the dwelling. This is a popular policing technique because neither probable cause nor a warrant is required. This Note will analyze the effect of knock and talk on conceptions of privacy and space of low income and minority individuals to which this technique is often targeted.
It will argue that the curtilage doctrine, which protects the area surrounding the home, does not assist these individuals. In addition, this Note will demonstrate that knock and talk is abused in two ways: through searches based on improperly obtained consent and through searches based on police created exigent circumstances. Finally, this Note will argue that the use of knock and talk has the potential to harm the very population that it is supposedly being used to protect and will undermine efforts at community policing.
Argument transcript in strip-search case
The transcript in Florence v. Board of Chosen Freeholders of County of Burlington is here.
War on drugs assists war on terror
To paraphrase Hillary Clinton's reaction, you couldn't make this stuff up. From the New York Times article, this interesting excerpt on how the alleged murder plot came to light:
The case began in May, when a Drug Enforcement Administration informant with ties to high-level leaders of Los Zetas told agents of a bizarre conversation. He had been approached, he said, by an Iranian friend of his aunt’s in Corpus Christi — Mr. Arbabsiar — with a proposition to hire the cartel to carry out terrorist attacks inside the United States. Mr. Arbabsiar believed that the informant was an actual member of Los Zetas.
Over the next two months, Mr. Arbabsiar and the informant worked out a deal under which Mr. Arbabsiar would pay $1.5 million to Los Zetas to kill the Saudi ambassador at a restaurant in Washington, officials said.
The complaint quotes Mr. Arbabsiar as making conflicting statements about the possibility of bystander deaths; at one point he is said to say that killing the ambassador alone would be preferable, but on another occasion he said it would be “no big deal” if many others at the restaurant — possibly including United States senators — died in any bombing.
Epstein on Requiring Presentation of Mitigation Evidence in Death Sentence Cases
Jules Epstein (Widener University - School of Law) has posted Mandatory Mitigation: An Eighth Amendment Mandate to Require Presentation of Mitigation Evidence, Even When the Sentencing Trial Defendant Wishes to Die (Temple Political & Civil Rights Law Review, Forthcoming, Widener Law School Legal Studies Research Paper No. 11-31) on SSRN. Here is the abstract:
The Eighth Amendment’s mandate in death penalty proceedings is to “ensure that only the most deserving of execution are put to death[.]” This Article continues development of a thesis of this author, presented in an earlier piece, that it is cruel and unusual punishment to execute those who are not “most deserving,” and that the determination of this must include consideration of mitigation evidence. From this conclusion flows a second one, the focus of this Article - because the Eighth Amendment prohibition against cruel and unusual punishment is a limitation on society’s power, an individual may not consent and submit himself to a punishment that society itself is banned from imposing.
A regime of “mandatory mitigation,” overriding a defendant’s wish that no evidence in support of a life sentence be presented, is the only way to ensure that a resulting death sentence does not constitute cruel and unusual punishment by guaranteeing that the fact finder have the information necessary to determine whether he/she is within the narrow class of “most deserving,” at times denominated “the worst of the worst.” The Article shows that such a conclusion is not incompatible with decisional law under the Sixth Amendment that accords an accused the right of self-representation, and with that the right to “preserve actual control over the case he chooses to present to the jury.”
October 11, 2011
Werden, Hammond & Barnett on Cartel Enforcement in the United States
Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett (U.S. Department of Justice - Antitrust Division) have posted Recidivism Eliminated: Cartel Enforcement in the United States Since 1999 on SSRN. Here is the abstract:
John Connor has asserted that recidivism by cartel participants is very common and is symptomatic of serious flaws in cartel enforcement. However, we searched U.S. enforcement records for instances of cartel recidivism and found none at all since July 1999 when the first non-U.S. national was sentenced to a term of imprisonment for participation in international cartel activity. All available evidence indicates U.S. cartel enforcement in the United States is at least achieving the specific deterrence of convicted offenders.
Argument transcript in habeas case on "clearly established" law
Today's transcript from Greene v. Fisher is here.