April 6, 2012
Buell & Griffin on Consciousness of Wrongdoing
Samuel W. Buell and Lisa Kern Griffin (Duke University School of Law and Duke University - School of Law) have posted On the Mental State of Consciousness of Wrongdoing (Law and Contemporary Problems, Vol. 75, No. 2, 2012) on SSRN. Here is the abstract:
Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor's awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong.”
Garcia Hernandez on Padilla v. Kentucky
César Cuauhtémoc García Hernández (Capital University Law School) has posted Padilla v. Kentucky’s Inapplicability to Undocumented and Non-Immigrant Visitors (Rutgers Law Record, Vol. 39, 2012) on SSRN. Here is the abstract:
The Supreme Court’s recognition in Padilla v. Kentucky that the Sixth Amendment right to counsel requires criminal defense attorneys to advise noncitizen defendants of the possibility of deportation prior to pleading guilty promises to lift the veil of misinformation from many plea negotiations. This promise, however, means little to undocumented people and non-immigrant visitors because they lack a critical characteristic that animated the Padilla Court: the right to remain in the United States indefinitely. Padilla’s advice mandate, this essay therefore argues, does not apply to undocumented individuals and non-immigrants facing criminal charges, continuing to leave them subject to the perils of incorrect or incomplete advice.
April 5, 2012
Aziz on Selective Enforcement of Material Support Laws Against Muslim Charities
Sahar F. Aziz (Texas Wesleyan University School of Law) has posted Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities (Institute for Social Policy and Understanding, Policy Brief #47, September 2011) on SSRN. Here is the abstract:
The laws that prohibit providing material support to terrorism are the linchpin of the preventive counterterrorism paradigm. These laws are often the fall-back criminal provisions employed when the government cannot prove terrorism charges. But they are so broad and vaguely worded that they effectively criminalize a myriad of activities that would otherwise be constitutionally protected. Moreover, as the government is not statutorily required to prove that the defendant had a specific intent to support terrorism, it has carte blanche to prosecute a broad range of legitimate activities, such as charitable giving, peace building, and human rights advocacy. The Department of Justice, with the Supreme Court’s blessing, has consequently criminalized training and advocacy in support of nonviolence on the justification that such activities legitimize a designated group or individual. The government’s standards for what it deems as “legitimizing” are so broad that then- Solicitor General Elena Kagan went so far as to call for prosecuting lawyers for filing an amicus brief on behalf of a terrorist organization.
Similarly, humanitarian aid delivered to noncombatant civilians living under the control of a terrorist organization can be illegal based upon the unproven theory that it frees up resources to redirect toward violence. This untenable theory of liability, also known as the “fungibility” doctrine punitively denies many innocent beneficiaries abroad of food, water, and shelter. But for their misfortune of being trapped in a conflict zone where one party is designated as terrorist, these civilians would have received much-needed aid from American civil society. Furthermore, Muslim American charities providing the humanitarian aid are punished through government-led smear campaigns and prosecutions.
With few exceptions, the executive branch has exercised its broad discretion to selectively target Muslim charities engaged in seemingly legitimate humanitarian aid. The result is a serious chilling effect on Muslim communities’ willingness to openly partake in political dissent and for Muslim charities to effectively provide international aid using religiously mandated charitable donations.
Since 9/11, Muslim donors have been scared to make such contributions because they fear prosecution for providing material support to terrorism even though they do not intend to support terrorism. They also fear that their donations will invite government scrutiny and harassment in the form of tax audits, immigration checks, requests for voluntary FBI interviews, inclusion on watch lists, and surveillance. Indeed, donations to Muslim charities fell precipitously in the years immediately following 9/11. As law enforcement increasingly questions Muslims about such donations during voluntary interviews, immigration benefit proceedings, and at the border, this chilling effect is magnified. Ten years after 9/11, many Muslim charities still struggle to return to pre-9/11 donation levels.
Osler on Crack
This relatively brief (6,900 word) essay tells a compelling story and makes a simple point: That the development and spread of crack cocaine in the United States was a product of economics rather than a grand conspiracy or government action. “Learning from Crack” takes a close look at where crack came from and where it went, while urging a business-model approach to addressing crime which is driven by economic forces.
Maclin & Rader on the Roberts Court and the Fourth Amendment Exclusionary Rule
Tracey Maclin and Jennifer Marie Rader (Boston University - School of Law and affiliation not provided to SSRN) have posted No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule (Mississippi Law Journal, Vol. 81, No. 5, p. 151, 2012) on SSRN. Here is the abstract:
This article considers the current status of the Fourth Amendment exclusionary rule under the Roberts Court, as well as what the future holds for the rule. Despite Justice Kennedy’s 2006 declaration that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” this Article demonstrates why this is not the case. Kennedy’s statement is noteworthy and has been accorded substantial weight primarily because it was made at a time when it was thought that four Justices (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were prepared to announce the demise of the exclusionary rule. Part I of the article provides the background for the Court’s recent suppression rulings and Kennedy’s 2006 statement. Part II then considers the substance and worth of Kennedy’s statement as it pertains to Davis v. United States and Herring v. United States, the Court’s most recent rulings on the good-faith exception to the exclusionary rule. Part III considers the meaning of Kennedy’s statement in light of the attenuation rule announced in Hudson v. Michigan, which imposed a significant restriction on suppression as a remedy to deter Fourth Amendment violations.
Leary on US v Jones and the Commercial Erosion of Fourth Amendment Protection
Mary Leary (Catholic University of America (CUA)) has posted The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post - Google Earth World on SSRN. Here is the abstract:
The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy.
Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections.
This article identifies this assault on the expectation of privacy due to “corporate conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these corporate induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced.
This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.
April 4, 2012
Dubber on Constitutionalization Without Foundation
Markus D. Dubber (University of Toronto - Faculty of Law) has posted Criminal Justice in America: Constitutionalization Without Foundation on SSRN. Here is the abstract:
Criminal justice in America lacks foundation in three senses: historical, political, and substantive. The U.S. Constitution will continue to fail to place meaningful limits on American penal power without a radical reconceptualization of the challenge of state punishment in a modern democracy, i.e., ultimately as a fundamental question of political legitimacy. This paper explores the prospects for a constitutionalization of American criminal law, with some comparative glances at developments in other countries, notably Canada and Germany.
Wilson on Submersibles and Transnational Criminal Organizations
Brian Wilson (United States Navy) has posted Submersibles and Transnational Criminal Organizations (Ocean & Coastal Law Journal, Vol. 17, p. 1, 2011) on SSRN. Here is the abstract:
The use of submersibles by traffickers is on the rise and presents a transnational security threat. From 2001 through 2010, approximately 175 documented drug transits from South America to global destinations occurred on self-propelled semi-submersible (SPSS)-type platforms. While transporting illicit cargo in the maritime domain is not new, the stealthy SPSS — a long-range vessel that is extremely difficult to identify and track — raised significant national security concerns. This Article examines the economic and environmental incentives that led to the development of semi- and fully-submersibles, the U.S. criminal law enacted to combat this threat, the Drug Trafficking Vessel Interdiction Act, the issues raised in the appellate cases that affirmed the Act’s constitutionality, and unresolved legal and operational issues to address the submersible threat.
Sheley on Perceptual Harm and the Corporate Criminal
This article will consider the structure and effects of corporate acts of bribery as an entry point to explore why, notwithstanding its many critics, there are good reasons to retain corporate criminal liability along with individual liability in many circumstances. I will argue, first, that due to shared social intuitions about corporations as personified moral actors, the punishment of corporations along with their executives, if otherwise justified, serves an important expressive function that in turn helps legitimize the criminal justice system by vindicating the intuitions about moral blameworthiness that support it. Second, I will examine the example of the crime of bribery, especially in the context of recent enforcement of the Foreign Corrupt Practices Act (FCPA), to demonstrate how some of the most important substantive harms caused by corporate bribery, including social deterioration and cultural malaise, flow in part from the very networks bribery creates to consolidate power -- real and perceived -- over consumers and other market participants. This consolidation is made possible by the enduring nature of a corporation, which is in turn created by the state and facilitates institutional connections with state power. I argue that a societal judgment of blameworthiness for the corruption of these networks must attach, through criminal sanction, to the collective entities perceived as directly participating in them in order for the perceptual aspects of this harm to be removed and for the adverse effects on the fabric of society remedied. (While corporate criminal punishment must primarily take the form of financial penalties, the expressive stigma of criminal liability in and of itself can serve to disrupt the perceived alignment between the corporate structure and sources of state power.) Third, I will suggest that the same perceptual harms identifiable in the context of bribery can be discerned in many other cases of corporate criminal misconduct, based upon the psychological and cultural effects of a corporation’s enduring nature and institutional connections with state power. Finally, I will argue that, notwithstanding these strong arguments for corporate criminal liability, the bribery cases also demonstrate how the dramatic and variable role of prosecutorial discretion in attaching official blame to corporate harm runs the risk of undermining the expressive value of corporate punishment through an emphasis on consequentialist outcomes. These outcomes, I argue, improperly aggrandize the prosecutor’s ex post remedial role at the expense of redressing the underlying corporate harm.
Cole on The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine
David Cole (Georgetown University Law Center) has posted The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine (Harvard Law & Policy Review, Vol. 6, pp. 148-177, 2012) on SSRN. Here is the abstract:
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale.
At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, inHumanitarian Law Project it reduced the right to an empty formalism.
Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present—namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine.
April 3, 2012
Chernoff on How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards
Nina Chernoff has posted Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards on SSRN. Here is the abstract:
Over thirty years ago the Supreme Court established the standard for a violation of the Sixth Amendment right to a jury selected from a fair cross-section of the community. Today the most consistent conclusion one can reach about fair cross-section claims is that they are unsuccessful. This Article asserts that a surprising number of Sixth Amendment claims are being denied because courts are erroneously applying the test for a violation of the Fourteenth Amendment’s equal protection guarantee. As a result, criminal defendants are being deprived of the unique Sixth Amendment fair cross-section right, which extends beyond the Fourteenth Amendment’s protection from discrimination.
Under the Sixth Amendment, a defendant does not need to allege that any state actor discriminated in the jury selection process. Instead, a defendant can establish a prima facie violation by showing that the underrepresentation of a distinctive group in the jury pool is inherent in the jury selection process, whether by accident or design. The equal protection clause, in contrast, demands evidence of discriminatory intent.
This Article reveals that at least eight federal circuits and twenty-eight states have erroneously denied defendants’ Sixth Amendment claims for failure to satisfy the equal protection requirement of discriminatory intent. This Article also uses an original survey of federal and state fair cross-section cases to explore the potential scope of the problem for the first time. Courts denied defendants’ cross-section claims for failure to meet equal protection standards in over one-third of the cases surveyed. In contrast to scholarship arguing that the fair cross-section standard needs to be revisited, this Article asserts that the anemic application of the Sixth Amendment guarantee results not from weaknesses in the underpinnings of the right or the test for enforcing it, but rather from courts’ routine importation of equal protection standards into the analysis. The key to enforcing the fair cross-section guarantee for criminal defendants is not to change the standard, but to apply it consistently with the demands of the Sixth Amendment and Supreme Court doctrine.
Murphy on Databases, Doctrine, and Constitutional Criminal Procedure
Erin Murphy (New York University School of Law) has posted Databases, Doctrine, and Constitutional Criminal Procedure (Fordham Urban Law Journal, Vol. 37, No. 803, 2010) on SSRN. Here is the abstract:
Over the past twenty years there has been an explosion in the creation, availability, and use of criminal justice databases. Large scale database systems now routinely influence law enforcement decisions ranging from formal determinations to arrest or convict an individual to informal judgments to subject a person to secondary pre-flight screening or investigate possible gang membership. Evidence gathered from database-related sources is now commonly introduced, and can play a pivotal proof role, in criminal trials. Although much has been written about the failure of constitutional law to adequately respond to the threat to privacy rights posed by databases, less attention has focused upon the awkward fit between database-generated evidence and the conventional modes of analysis in constitutional criminal procedure. This Essay examines databases as a tool of law enforcement and sets forth tentative steps toward a theory of constitutional violations in this area.
Spahn on Multi-Jurisdictional Bribery Law Enforcement
Elizabeth Spahn (New England Law | Boston) has posted Multi-Jurisdictional Bribery Law Enforcement: The OECD Anti-Bribery Convention (Virginia Journal of International Law, Vol. 53, No. 1, 2012) on SSRN. Here is the abstract:
For the first twenty years, modern global anti-bribery law reform efforts were unilateral. The U.S. enacted the Foreign Corrupt Practices Act (FCPA) in 1977, criminalizing bribery to foreign officials to obtain business. In 1997, the major multi-lateral legal framework, the Organization for Economic Cooperation and Development (OECD) Anti-Bribery Convention was negotiated. The Convention includes thirty-eight states (thirty-nine as Russia joins in 2011-2012) comprising nearly all the major world economic powers. Brazil joined the Convention in 2002. Although China is not yet an OECD Convention member state, it enacted domestic laws criminalizing bribery of foreign officials abroad in 2011. India is the only major global economic power that apparently still permits bribery abroad as of 2012.
During the first decade of the Convention (1997-2007), country peer review processes under the auspices of the Working Group assisted the thirty plus jurisdictions in eliminating favorable tax treatment for bribery abroad and enacting domestic legislation criminalizing (or its equivalent under the individual state’s legal system) bribes paid to foreign officials. The success of the Convention harmonizing formal law among member states marks an end to the period of a widespread de jure double standard in which it was illegal to bribe domestic officials but permitted (and given favorable tax treatment in fourteen jurisdictions) to bribe foreign officials. The formal rules governing the playing field have been leveled.
Beginning in about 2007, the OECD Convention Working Group increased its focus on multilateral enforcement efforts. Enforcement is horizontal, with each state enforcing its own domestic laws. Working Group Prosecutors’ Meetings were established which include tour de table case reviews, facilitating exchanges of information in these highly complex white collar crime cases. Cooperation among member states at the prosecutorial level is a hallmark of the Convention. Where one state is unable to prosecute due to domestic political or technical legal problems, other states with jurisdiction may step in. Enforcement competition thus provides a potential hard law backstop against ‘national champion’ protectionist tendencies.
Three landmark cases involving OECD Convention enforcement cooperation and competition in prosecuting powerful multi-national corporations are discussed. In the BAE case, both enforcement competition and eventually cooperation facilitated prosecutions in both the U.K. and the U.S. In the Siemens case there was enforcement cooperation between Germany and the U.S. A series of cases known as TSKJ, involving five multi-national corporations and potentially twelve jurisdictions, were referred to the U.S. by French magistrates, ultimately involving cooperation between the French, Italian, Swiss, U.K.and the U.S. authorities.
Enforcement against bribing foreign officials involves multiple and overlapping jurisdictions. Because multi-national corporations by definition operate across the borders of many sovereign states, many jurisdictions are potentially involved. Determining the ‘nationality’ of a given multi-national corporation is complicated at best. Whether corporations as fictional or juridical legal persons should be subject to criminal liability at all is hotly debated in U.S law; in some other legal systems criminal sanctions for juridical persons (corporations) is unavailable. Article 3(2) of the Convention requires “effective, proportionate and dissuasive non-criminal sanctions” in such situations. Double jeopardy and the European equivalent ne bis in dem principles are not yet well developed in cross-border crime cases. Prosecutions by non-Convention states are not yet coordinated with Convention states’ prosecutions.
Five years into the enforcement phase of the OECD Convention there is significant evidence that global anti-bribery law reform has moved from a unilateral to a multi-lateral law enforcement model based on a horizontal enforcement competition and cooperation. There have been notable successes in this very early phase. Multi-lateral law enforcement based on the OECD Convention model is potentially useful in addressing other forms of cross-border criminal activity.
Herrin on Drug Smell Test Taskforces
Grant T. Herrin (Southern University Law Center) has posted O! Say Can You Smell? Drug Smell Test Taskforces: Police-Created Exigency Doctrine No Longer a Check on Warrantless Search by Police (Southern University Law Review, Vol. 40, 2012) on SSRN. Here is the abstract:
This commentary analyzes how the High Court might address a challenge to police actions in light of its decision in Kentucky v. King. For the purpose of elucidating analytical points, a fictional police program has been concocted – the “Drug Odor Presence Enforcement” Program, or simply, DOPE. Part II explores the historical development of several Fourth Amendment cases, particularly the King case, its facts, the Supreme Court’s holding, and Justice Ginsberg’s dissent. Part III focuses on the Court’s possible analysis of a challenge to the hypothetical DOPE Program. Last, Part IV discusses various logical outcomes and conclusions based upon the analysis.
While the scenario and DOPE Program mentioned above are fictional, they are now not only possible, but the next probable evolution of police enforcement of drug violations under King. The Court’s decision in King was many years in the making, necessitated by a need to resolve an increasing discrepancy between various state high courts and the U.S. Courts of Appeals. Specifically, the courts have disagreed in their application of the “police-created exigency doctrine” as an override of the exigent circumstances exceptions to warrantless searches and seizures. While the Supreme Court’s holding in King that “warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through actual or threatened Fourth Amendment violation” seems comforting and even logical, its implications are anything but reassuring. Indeed, the authority of the police (now given more freedom from the Fourth Amendment) conjures images of Nazi storm troopers breaking down the doors of downtrodden citizens of the police-state. In fact, the Court’s extension of discretion to individual police officers contracts the authority, and even the necessity, of a neutral magistrate to the extent that warrants are not even required if the officer so reasons at the time of his entry. Further, lack of a warrant is not even an issue so long as the police acted “reasonably” up to the point they broke down your door.
April 2, 2012
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers:
- Moncrieffe v. Holder: Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
Murphy on Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions
Erin Murphy (New York University School of Law) has posted The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States federal code currently contains over twenty separate statutes that restrict both acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern
existence. They control police access to drivers’ licenses, education records, health histories, telephone calls, e-mail messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards – ranging from warrants and court orders to subpoenas and demand letters. But across this remarkable diversity, there is one feature that all of the statutes share in common: each contains a provision exempting law enforcement from its general terms.
Yet despite the appearance of law enforcement exemptions in every generally applicable privacy statute on the federal books, they have garnered virtually no scholarly attention. Privacy scholars have primarily busied themselves with mainstream consumer interests, and criminal justice scholars have chiefly focused on the Fourth Amendment. As a result, these exemptions have gone largely unnoticed and unexamined. At the same time, at least four Supreme Court justices recently suggested in United States v. Jones that the proper scope of privacy protection might be a topic better left to legislatures than courts.
In response to these concerns, this article examines, comprehensively and in depth, the specific operation of privacy statutes with regard to law enforcement. In its most elemental form, this article answers the question: what does the federal statutory approach to regulating privacy from the police look like, and in what ways does that mimic, overlap with, or differ from the Fourth Amendment constitutional approach? In answering this question, this article also engages in the deeper democratic debate over constitutional versus statutory approaches to controlling the police, using the lessons garnered from examining existing privacy regulations to better inform the secondary argument about who does it best.
Court extends absolute immunity to grand jury witness
Justice Alito wrote the opinion for the unanimous Court in Rehberg v. Paulk.
Pearlstein on Detention Debates
More than ten years after the attacks of September 11, 2001, what progress has the United States made in resolving how to handle the detention of wartime combatants and terrorist suspects? According to Brookings scholar Ben Wittes’ latest book, Detention and Denial, little more than what had been made when the United States began transporting detainees to Guantanamo Bay in early 2002. He urges that it is time to redesign and rationalize the current system of rules the United States has for detaining terrorist suspects – whether captured by our military, intelligence, or law enforcement agents. Further, drawing on U.S. detention experiences of the past decade, he seeks to shed light on which among the branches in our federal government are institutionally suited to resolving the thorny questions of law and policy underlying the determinations of who may be detained and why. Wittes particularly targets both political branches for their irrationality and cowardice in failing to address such issues before now. It thus seems especially unfortunate that Wittes vests least hope in the capacities of the courts, one of the few institutional actors that has been regularly compelled in recent years to provide specific answers to complex questions of substantive detention powers and procedures. This review evaluates Wittes’ case, as a matter of both detention policy and structure, and explores which institutional characteristics might lead us to prefer the involvement of one branch or another in resolving detention-related questions. While concluding that the book fails to shed much new light on the great national debate over detention, the review recognizes that the book does a service nonetheless in highlighting the ongoing importance of the questions.
Court dismisses cert as improvidently granted in harmless error case
Court upholds suspicionless strip searches of arrestees jailed for minor offenses
Justice Kennedy wrote the opinion for the 5-4 Court in Florence v. Board of Chosen Freeholders of County of Burlington. Chief Justice Roberts and Justice Alito filed concurring opinions. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.