Monday, September 24, 2012
Orin Kerr has this post at The Volokh Conspiracy. In part:
Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted?
The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. Second, there are plausible arguments on either side of the debate both for encrypted and unencrypted transmissions.
Aviva Orenstein (pictured) and Tamara Rice Lave (Indiana University Mauer School of Law and University of Miami, School of Law) have posted Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes on SSRN. Here is the abstract:
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence.
Michael L. Perlin (New York Law School) has posted Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield, 2012) (in Press) Chapter 1: An Introduction and the Dilemma of Factual Innocence on SSRN. Here is the abstract:
There is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities. There is clear, systemic bias at all stages of the prosecution and the sentencing process – in determining who is competent to be executed, in the assessment of mitigation evidence, in the ways that counsel is assigned, in the ways that jury determinations are often contaminated by stereotyped preconceptions of persons with mental disabilities, in the ways that cynical expert testimony reflects a propensity on the part of some experts to purposely distort their testimony in order to achieve desired ends. These questions are shockingly underdiscussed in the literature, and I have written this book to explore the relationship between mental illness and the death penalty so as to explain why and how this state of affairs has come to be, why it is necessary to identify the factors that have contributed to this scandalous and shameful policy morass, to highlight the series of policy choices that need immediate remediation, and to offer some suggestions that might meaningfully ameliorate the situation.
An essay on the proper role of U.S. magistrate judges in applying the constitution to electronic surveillance requests by law enforcement, particularly during an era of legislative inertia and appellate court reticence. (h/t Monty Python)
Sunday, September 23, 2012
|1||495||Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps
Caleb E. Mason,
Southwestern Law School,
Date posted to database: August 13, 2012
|2||421||Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration
Heather Cucolo, Michael L. Perlin,
New York Law School, New York Law School,
Date posted to database: July 26, 2012
|3||222||Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act
Stephen J. Choi, Kevin E. Davis,
New York University (NYU) - School of Law, New York University (NYU) - School of Law,
Date posted to database: July 24, 2012 [6th last week]
|4||188||Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure
Southern Illinois University School of Law,
Date posted to database: September 13, 2012 [new to top ten]
|5||169||A Technology-Centered Approach to Quantitative Privacy
David C. Gray, Danielle Keats Citron,
University of Maryland-Francis King Carey School of Law, University of Maryland - Francis King Carey School of Law,
Date posted to database: August 15, 2012 [7th last week]
|6||162||The International Commission of Inquiry on Libya: A Critical Analysis
Kevin Jon Heller,
Melbourne Law School,
Date posted to database: August 5, 2012 [9th last week]
|7||151||Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century
Southern District of Texas,
Date posted to database: August 21, 2012 [new to top ten]
University of Georgia - School of Law,
Date posted to database: August 1, 2012 [new to top ten]
|9||136||'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures
Gary S. Becker, Francois Ewald, Bernard E. Harcourt,
University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago - Department of Political Science,
Date posted to database: September 5, 2012 [new to top ten]
|10||129||The Heart of Mens Rea and the Insanity of Psychopaths
Craig A. Stern,
Regent University School of Law,
Date posted to database: July 27, 2012 [new to top ten]
Saturday, September 22, 2012
Oren Gazal-Ayal , Hagit Turjeman and Gideon Fishman (University of Haifa - Faculty of Law , University of Haifa - Department of Sociology & Anthropology and University of Haifa - Department of Sociology & Anthropology) have posted Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study (Law and Contemporary Problems, Vol. 76, No. 1, 2012) on SSRN. Here is the abstract:
Sentencing guidelines have been enacted across the United States and are currently being considered in other countries, including Israel. However, researchers argue that the new sentencing structures shift too much power to prosecutors. A unique set of data from Israel allows for a controlled examination of sentencing outcomes for people accused of aiding illegal aliens during three time periods: before the imposition of strict judicial sentencing guidelines, after this change was made, and then following the court’s mitigation of those guidelines. We find that prosecutors did not gain direct sentencing power from the guidelines. In fact, judges were often willing to depart from the guidelines even when prosecutors asked them to follow them. The guidelines might have had an effect on defendants, leading them to believe that they better plea bargain with the prosecutors. But when defendants did not bargain, they, in most cases, managed to convince the court not to follow the harsh guideline, even if prosecutors objected to the departure. It seems that judges, more than prosecutors, are willing to depart from harsh guidelines even when they are supposed to be bound by them. Hence we did not find support to the transfer of sentencing power theory.
Brian D. Shannon (pictured) and Victor R. Scarano (Texas Tech University School of Law and University of Houston - Health Law & Policy Institute) have posted Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas (Texas Tech Law Review, Vol. 45, 2013) on SSRN. Here is the abstract:
This Article focuses on a small, but unique group of death row inmates who have largely exhausted their post-conviction procedural rights and have a date set for execution, but while awaiting execution have become incompetent to be executed because of serious mental illness. The United States Supreme Court has determined that it is unconstitutional to execute an individual who is mentally incompetent. The Court has not, however, ruled as to whether it is constitutionally permissible for a state to order a death row inmate to be medicated forcibly for the purpose of restoring that inmate’s competency to allow an execution to proceed. This Article discusses the scope of the serious ethical concerns related to this very challenging scenario, and reviews state and lower federal court decisions that have considered the issue, as well as United States Supreme Court opinions that have considered other, related medication issues concerning offenders with mental disorders. In particular, however, the Article offers and discuss a possible legislative solution that the Texas Legislature could enact that would avoid the thorny ethical and legal issues that are at stake in such cases.
Friday, September 21, 2012
From The New York Times:
CENTENNIAL, Colo. — James E. Holmes, accused of killing 12 people in a Colorado movie theater, appeared in court on Thursday, his shaggy hair now shorn and brown rather than neon orange, as prosecutors, saying they did not want to delay proceedings, abandoned their fight to see a notebook he sent to a university psychiatrist.
. . .
Public defenders for Mr. Holmes have argued that the notebook cannot be made public or shared with prosecutors because it is privileged communication between Mr. Holmes and Dr. Lynne Fenton, a psychiatrist at the University of Colorado Denver, who saw Mr. Holmes briefly in June.
The US Court of Appeals for the Ninth Circuit [official website] heard arguments Wednesday regarding the constitutionality of a voter-approved California law[Proposition 69, PDF] that requires police officers to take DNA samples of arrested persons suspected of committing a felony. Sitting en banc, the judges questioned CaliforniaAttorney General Kamala Harris [official website], raising concerns [San Francisco Chronicle report] that the law may be an unconstitutional government invasion of individuals' privacy. Harris retorted that the law contains safeguards against malicious use, including penalties for state officials who misuse DNA material. In February a three-judge panel of the Ninth Circuit ruled [opinion, PDF; JURIST report] that Proposition 69 does not violate Fourth Amendment [LII backgrounder] protections against unlawful searches and seizures.
Catherine T. Struve (University of Pennsylvania Law School) has posted The Conditions of Pretrial Detention (University of Pennsylvania Law Review, Vol. 161, 2013) on SSRN. Here is the abstract:
Court has set forth in detail the standards that govern convicted prisoners’
Eighth Amendment claims concerning their conditions of confinement, but has left
undefined the standards for comparable claims by pretrial detainees. The law in
the lower courts is unclear and inconsistent, but shows a trend toward
assimilating pretrial detainees’ claims to those of convicted prisoners. Based
on a review of Supreme Court caselaw concerning related questions, this Article
argues that, for claims arising after a judicial determination of probable
cause, the tests prevailing in the lower courts should be replaced by a
substantive Due Process framework that requires a plaintiff to show, at most,
either punitive intent or objective deliberate indifference on the part of the
defendant. For claims arising after a warrantless arrest and before a judicial
determination of probable cause, the Fourth Amendment’s objective reasonableness
standard should govern; moreover, the Article notes a strong argument that this
objective reasonableness standard should govern prior to arraignment, even when
the arrest took place upon a warrant.
Annette Ruth Appell (pictured) and Adrienne D. Davis (Washington University in Saint Louis - School of Law and Washington University in Saint Louis - School of Law) have poosted Access to Justice: Mass Incarceration and Masculinity through a Black Feminist Lens (Washington University Journal of Law and Policy, Vol. 37, No. 1, 2011) on SSRN. Here is the abstract:
Introduction to the Symposium, Race to Justice: Mass Incarceration and
Masculinity through a Black Feminist Lens, rehearses the animating forces that
led to a colloquium and a series of papers that explore the question of mass
incarceration and the negative state engagement surrounding it through gendered
and feminist lenses. The Introduction explains how an analysis of mass
incarceration through the lens of gender complicates what is often conceived as
a story about race. Instead mass incarceration can be more deeply understood
through its gendered effects on men and the women and children connected to
those men. These connections include the social and economic conditions of the
community, new forms of sexuality experienced in prison, and resulting changes
in identity. Building on the work of Angela Davis and Beth Ritchie, this
symposium and its papers provide new insights and frameworks for mass
incarceration. Symposium authors include Angela Harris, Frank Rudy Cooper,
SpearIt, Kimberly Bailey, Jessica Dixon Weaver.
Gary S. Becker (pictured), Francois Ewald and Bernard E. Harcourt (University of Chicago - Department of Economics , Conservatoire National des Arts et Métiers and University of Chicago - Department of Political Science) have posted 'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures on SSRN. Here is the abstract:
In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; Professor Bernard Harcourt offers a different reading of Foucault’s views on neoliberalism; and Professor Becker responds to Foucault’s lectures and to possible critical readings of his work on human capital. Apology or critique — that is the motivating question in this rich encounter between contemporary French philosophy and American economic theory.
Thursday, September 20, 2012
Jerome E. Deise and Raymond Paternoster (University of Maryland Francis King Carey School of Law and University of Maryland) have posted More than a 'Quick Glimpse in the Life?': The Relationship between Victim Impact Evidence and Death Sentencing (Hastings Constitutional Law Quarterly, Vol. 40, 2013) on SSRN. Here is the abstract:
In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only present a “quick glimpse of the life” taken by the offender, and that such testimony would provide the sentencer with a fuller account of the harm done by the offense and therefore a more accurate picture of the offender’s culpability. In this paper we present the results of an experiment using potential jurors selected from a jury registration list of a large city. Subjects were “death qualified” and voir dired so that they would be eligible for jury service in a capital case, provided with a written summary of a real murder case involving the killing of a police officer, and randomly assigned to watch a videotape of the actual capital penalty trial. All subjects then completed a questionnaire which among other things asked them what sentence they would have imposed in the case if they were a juror. We found that those who viewed the victim impact testimony were more likely to feel empathy and sympathy for the victim and victim’s family, were more likely to state that empathy and sympathy for the victim and victim’s family were important considerations in their sentence, more likely to believe that the victim’s family was coping poorly with their loss, more likely to believe that a death sentence would provide comfort and closure for the family, and more likely to impose a sentence of death.
Tom Tyler (pictured) and Jonathan Jackson (Yale University - Law School and London School of Economics & Political Science - Methodology Institute) have posted Future Challenges in the Study of Legitimacy and Criminal Justice on SSRN. Here is the abstract:
Studies conducted over the last several decades have established that legitimacy shapes law-related behavior. They also make it clear that we should broaden our framework for understanding both how to conceptualize and measure legitimacy and for exploring its antecedents and consequences. This chapter reviews recent efforts to address these questions.
Wednesday, September 19, 2012
W. David Ball (pictured) and Robert Weisberg (Santa Clara School of Law and Stanford Law School) have posted Justice Information Sharing: A Legal Primer for Criminal Justice Practitioners in California on SSRN. Here is the abstract:
California criminal justice agencies need access to data in order to provide security, health care treatment, and appropriate programming, as well as to coordinate these activities with other agencies. By the same token, outside agencies — whether criminal, social service, or non-governmental — could often do their jobs more effectively with access to information generated or retained within particular criminal justice agencies. Criminal justice realignment under AB 109 has only heightened the need for inter-agency data sharing and cooperation, yet there continue to be misunderstandings about the legal framework surrounding information exchange.
Starla J. Williams (Widener University School of Law) has posted Reforming Mandated Reporting Laws After Sandusky (Kansas Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:
This article explores the intersection of poverty, power, and privilege in the child protection system that contributed to the child sexual abuse scandal at Penn State University. The article first reviews the facts underlying the case of former Penn State football coach Gerald A. Sandusky, who was convicted on forty-five counts of child sexual abuse. It also offers insight into the actions of former University leaders whose nondisclosure and active roles in the cover up of child sexual abuse resulted in disgrace to one of the nation’s premier college athletic programs. Next, the article considers the irony in the failure to report child sex abuse involving disadvantaged youth at Penn State when children living in poverty are generally over-reported for suspected child abuse; hence, former Penn State leaders created invisible victims of underprivileged youth who are typically overly visible to child protective services. The article sets forth the rationale for mandated reporting laws by drawing a correlation between moral, social, and economic forces within the child protection system.
Irus Braverman (State University of New York at Buffalo - Law School) has posted Passing the Sniff Test: Police Dogs as Surveillance Technology (Buffalo Law Review, Forthcoming) on SSRN. Here is the abstract:
In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky’s sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a “search” for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various cases is the Courts’ assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also define them as “searches,” thereby triggering Fourth Amendment protections. Conversely, when perceived as extensions of the officer’s natural sense of smell, dogs, like nature, are viewed with “superstitious awe” and spared constitutional scrutiny.
Monica M. Gerber and Jonathan Jackson (London School of Economics & Political Science - Methodology Institute and London School of Economics & Political Science - Methodology Institute) have posted Retribution as Revenge and Retribution as Just Deserts on SSRN. Here is the abstract:
Public attitudes towards law-breakers shape the tone and tenor of crime-control policy. The desire for retribution seems to be the main motivation underpinning punitive attitudes towards sentencing, yet there is some confusion in the research literature over what retribution really means. In this paper we distinguish between retribution as revenge (as the desire to punish criminal offenders to retaliate a past wrong by making the offender suffer) and retribution as just deserts (as the preference to restore justice through proportional compensation from the offender). Results from an online survey (n=176) provide evidence of two distinct dimensions of retribution, but we also show that these two dimensions have different ideological and motivational antecedents, and have different consequences in terms of the treatment of criminal offender. We find that retribution as revenge is associated with the motivation to enforce status boundaries with criminal offenders, as well as ideological preferences for power and dominance (as expressed by social dominance orientation) and in-group conformity (as expressed by right-wing authoritarianism). Endorsement of retribution as revenge also predicts the support of harsh punishment and the willingness to deny fair procedures. By contrast, retribution as just deserts is mainly predicted by a value restoration motive and by right-wing authoritarianism. After controlling for revenge, retribution as just deserts predicts support for procedural justice in the criminal courts. We conclude with the idea that beliefs about proportionality and compensation work as a buffer against the negative effects of revenge.
Tuesday, September 18, 2012
Salon.com has this article discussing license plate readers:
Once used mostly by local cops to catch car thieves and unregistered drivers, LPR systems have morphed into what privacy activists call an increasingly pervasive network of mass surveillance. Databases all over the country maintained by local police departments – and now federal agencies too — contain hundreds of millions of location scans, and provide a searchable record of the movements of all kinds of drivers, from murderers to pizza delivery guys, and from soccer moms to serial rapists.
The inconspicuous devices are sometimes installed at fixed points, as the DEA has been doing in several border states, but they’re most often mounted on local police cruisers, where they automatically scan and record every license plate that comes within range of their optical sensor.
Hat tip: FourthAmendment.com.
The European Court of Human Rights [official website] ruled [judgment] Tuesday that England and Wales' indeterminate sentences for protection of the public (IPP) [BBC backgrounder] without the means for inmates to prove their rehabilitation are arbitrary and unlawful. The IPP requires an inmate to demonstrate to the Parole Board [official website] that he or she is no longer a threat to society to become eligible for release after serving a minimum sentence.