CrimProf Blog

Clancy on US v Jones

Thomas K. Clancy (West Virginia University College of Law) has posted United States v. Jones: Fourth Amendment Applicability in the 21st Century (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:

To control governmental actions, the Fourth Amendment must be applicable. That applicability question is a two sided inquiry: (1) does the governmental activity – which must be either a search or a seizure – invade (2) an individual interest protected by the Amendment? If one does not know what is protected by the Amendment, then it cannot be determined what the government can do without implicating it. If one does know what is protected, governmental intrusions of that protected interest must be analyzed to determine whether they are considered a search or seizure and accordingly required to be reasonable. United States v. Jones addressed that applicability question and is the subject of this essay.

Jones is unlikely to have significant precedential value. The Scalia majority opinion offers little that is new: physical trespasses have always been viewed as implicating the Amendment and his opinion is notable primarily for reiterating that baseline view. The concurring opinions of Alito and Sotomayor offer vague observations about various technologies, using the reasonable expectation of privacy formula to project their views. Their comments are more likely to result in confusion rather than guidance for lower courts, illustrating the failings of the expectations framework. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects.” Grammatically, there is a relational aspect to the right set forth in the Amendment, which speaks of certain objects protected – people, houses, papers, and effects – but those objects are not absolutely shielded. Instead, the right to be “secure” is protected and I have long advocated invigorating that term and using it as the proper measure of the protection afforded by the Amendment. In contrast, Jones is a recycling of twentieth century arguments about property versus privacy that do not adequately confront the issues in the digital age.

Lawton on Warrantless Searches and Smart Phones

Margaret M. Lawton (Charleston School of Law) has posted Warrantless Searches and Smart Phones: Privacy in the Palm of Your Hand? (The University of the District of Columbia Law Review (Forthcoming 2012)) on SSRN. Here is the abstract:

While the United States Supreme Court has not yet had occasion to address the warrantless search of a cell phone or smartphone incident to arrest, the vast majority of courts, both state and federal, to have considered the issue have allowed warrantless searches of cell phones pursuant to this exception, reasoning that cell phones are containers like any other found on an arrestee. The few courts to consider a warrantless search of a smartphone in similar circumstances have also allowed these searches. 

I do not disagree with concerns that warrantless searches of these devices incident to arrest could expose potentially large amounts of personal information to the police without the prior approval of a neutral and detached magistrate. However, I question whether the advancement of technology in this area requires an expansion or reformation of the search incident to arrest exception to the warrant requirement. The Supreme Court has determined that the Fourth Amendment, at its core, imposes a reasonableness standard, and that standard has been applied in a variety of warrantless settings. Regarding the search incident to arrest doctrine specifically, the Court has held that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” As discussed in the article, most of the lower courts to consider the issue have found that the storage capacity of a cell phone or smartphone does not change the Fourth Amendment analysis. Moreover, the Supreme Court has rejected any distinction between “worthy and unworthy containers” and instead “has defined the term ‘container’ much more expansively.” Perhaps then, the question is not as complicated as it appears: Existing Fourth Amendment doctrine arguably reaches the proper balance between privacy rights and law enforcement needs in this area.

Sussman on Graham v. Florida and the Juvenile Justice System

Aaron Sussman has posted The Paradox of Graham v. Florida and the Juvenile Justice System (Vermont Law Review, Forthcoming) on SSRN. Here is the abstract:

On June 25, 2012, the U.S. Supreme Court in the consolidated cases Miller v. Alabama and Jackson v. Hobbs held that mandatory life sentences without the possibility of parole for any juvenile offenders violated the Eighth Amendment of the U.S. Constitution. This holding is the latest in a series of Supreme Court decisions establishing that certain sentences are unconstitutional when applied to juveniles primarily because, as the Court put it in Miller and other cases, “children are different.” Of this series of cases, the most significant is the 2010 decision Graham v. Florida, which found life sentences without parole unconstitutional when applied to juveniles convicted of non-homicide offenses. The Graham Court emphasized that, compared to adults, children have a unique “capacity for change” and thus must be afforded a “meaningful opportunity for release based on demonstrated maturity and rehabilitation.” This reasoning raises important questions to which the Court and juvenile justice systems are unlikely to provide an answer — namely, what will influence that “capacity for change” to be in a positive direction and not a negative one, and what must juvenile justice systems do to make the “meaningful opportunity for release” actually meaningful?

This Paper posits that Graham is one of a handful of criminal justice cases that, by their logic and principles taken at face value, should be systemically transformative, but are paradoxically limited by their own transformative potential. In these “paradox cases,” a sharp disjuncture emerges between the Supreme Court’s language and the realities of the criminal justice system, a disjuncture that, in the context of Graham and its progeny, helps preserve the perception of legitimacy but may inhibit even small steps toward improving the conditions and rehabilitative potential of the juvenile justice system. 

To resolve the paradox of Graham, I propose looking to an unlikely source of reform — the Prisoner Litigation Reform Act — as providing a tenable path toward reconciling the ambitious language of Graham (and echoed in Miller) with the less hopeful reality for children in the juvenile justice system.

Internal investigation of Penn State's handling of Sandusky allegations

CNN.com has a summary of the report here, stating:

Penn State's leaders showed "total disregard" for victims of child sex abuse and failed to protect children, an internal review has found.

In fact, several senior officials "empowered" former assistant football coach Jerry Sandusky to attract more victims for child sex abuse, the report found.

The complete report is here.

"Philadelphia Defends Policy on Frisking, With Limits"

From the New York Times:

A year after they settled litigation by agreeing to institute a host of safeguards to make sure police stops were conducted legally, they say they are simply doing what is needed to make sure that aggressive crime fighting is accompanied by a respect for civil rights. As part of the agreement, the Police Department has set up an electronic database to track the legality of stops, adopted new training protocols and accepted oversight by an independent monitor.

Philadelphia’s willingness to put police procedures under the microscope has won praise even from the civil rights lawyers who in 2010 filed a class-action lawsuit, accusing police officers of disproportionately stopping African-American and Hispanic men without sufficient cause.

...

Yet finding the right balance has not been easy. City officials have watched in frustration as homicides have continued to climb. As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011.

 

Ramsey on Gender and Domestic Violence in the Early Twentieth Century

Carolyn B. Ramsey (University of Colorado Law School) has posted A Diva Defends Herself: Gender and Domestic Violence in an Early Twentieth-Century Headline Trial (St. Louis University Law Journal, Vol. 55, p. 1347, 2011) on SSRN. Here is the abstract:

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend that press coverage of Mae Talbot’s trial and others like it served an important social function. It helped to make intimate-partner violence a public issue and to define men’s brutality toward their wives as improper and unmanly. However, the newspapers did not always get the story right. Despite reporters’ speculation that Mae would plead insanity, her defense team centered its case on the alternative theories of justifiable homicide and accident. The jury instructions given in the case and filed with the Washoe County Court tell an even more interesting story of a judge who supplemented black-letter self-defense law with commentary on gender roles and the decline of men’s right to beat their wives. The newspapers, the defense lawyers, and ultimately the trial judge all seemed to see the case as one in which the deceased’s wrongful behavior — that is, his brutality toward the defendant — played a central role. Mae was acquitted because she killed a man widely perceived to have violated his duties toward her as a husband. Although she was a glamorous entertainer, her case resonated with the acquittal of many ordinary women accused of murdering their batterers in the late 1800s and early 1900s.

Robertson on Contingent Compensation of Post-Conviction Counsel

Christopher T. Robertson (University of Arizona - James E. Rogers College of Law) has posted Contingent Compensation of Post-Conviction Counsel: A Modest Proposal to Identify Meritorious Claims and Reduce Wasteful Government Spending (64 Maine Law Review 513 (2012)) on SSRN. Here is the abstract:

This contribution to a symposium on post-conviction litigation argues that the lack of properly-incentivized counsel is a primary problem with our failing system of habeas litigation. The lack of counsel causes a great flood of frivolous petitions by pro se prisoners, while also preventing prisoners with meritorious claims from getting relief. The lack of counsel, and more fundamentally, the lack of funding therefor, thus perpetuates the problem of incarceration waste. Government-funded contingent compensation of post-conviction counsel may be the most promising way to help courts identify the bona fide cases deserving of relief, providing more accurate justice and saving money on net.

In Part I, I lay out the problem of incarceration waste, identifying the types of prisoners who should be released even under current law and foreseeable changes thereto. I also show that, without a constitutional or statutory right to counsel, even those prisoners that are being wastefully incarcerated are unable to persuasively reveal that status to their captors. 

In Part II, I present a proposal for rational governments to pay post-conviction counsel, but do so through a contingent fee system that would incentivize the attorneys to identify such prisoners and cogently present their cases to prosecutors and courts. Such a contingent funding system would be more politically feasible, since it does not shower money upon prisoners who deserve to be there, and it creates the proper incentives for attorneys to provide a screening function for the most meritorious cases. 

In Part III, I identify other structural and doctrinal impediments to governments achieving a rational policy for reducing incarceration waste, and suggest that they be reconsidered through this lens. I conclude that, although government-paid contingent compensation of post-conviction counsel may be a useful way to get representation for those prisoners that have the most meritorious claims, and to save some money for governments on the margins, it is very far from a solution to the overwhelming problem of mass incarceration.

Sutton on Structural Bias in Sentencing

John R. Sutton (University of California-Santa Barbara) has posted Structural Bias in the Sentencing of Felony Defendants on SSRN. Here is the abstract:

As incarceration rates have risen in the U.S., so has the overrepresentation of African Americans and Latinos among prison inmates. Whether and to what degree these disparities are due to bias in the criminal courts remains a contentious issue. This article pursues two lines of argument toward a structural account of bias in the criminal law, focusing on (1) cumulative disadvantages that may accrue over successive stages of the criminal justice process, and (2) the racial contexts in which courts are embedded. These arguments are tested using case-level data on male defendants charged with felony crimes in urban U.S. counties in 2000. Multilevel binary and ordinal logit models are used to estimate contextual effects on pretrial detention, guilty pleas, and sentence severity, and cumulative effects are estimated as conditional probabilities that are allowed to vary by race across all three outcomes. Results yield strong, but qualified, evidence of cumulative disadvantage accruing to black and Latino defendants, but do not support the contextual hypotheses. When the cumulative effects of bias are taken into account, the estimated probability of the average African American or Latino felon going to prison is 26 percent higher than that of the average Anglo.

"Are Our Sex Crime Laws So Radical They Deter Reporting?"

Dan Filler has this post at The Faculty Lounge, discussing his op-ed in the Philadelphia Inquirer. In part:

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit. They have, however, dramatically raised the stakes of reporting and charging such crimes.

Slobogin on Preventive Detention in Europe and the United States

Christopher Slobogin (Vanderbilt Law School) has posted Preventive Detention in Europe and the United States on SSRN. Here is the abstract:

Preventive detention, both within the criminal justice system and outside it (e.g. commitment, quarantine and wartime confinement), is under-theorized. The European Court of Human Rights has recently issued a spate of opinions that begin to deal seriously with the issue, in a more sophisticated manner than American courts have. This paper describes the European decisions, especially the European Court's decision in M. v. Germany, compares those decisions to American law on preventive detention, and discusses how principles I have developed in other work can further the analysis.

Holland on Race and Remedies

Brooks Holland (Gonzaga University School of Law) has posted Race and Ambivalent Criminal Procedure Remedies (Gonzaga Law Review, Vol. 47, No. 341, 2012) on SSRN. Here is the abstract:

This paper reflects the author's comments at the 2011 Race and Criminal Justice Conference at Gonzaga University School of Law. The paper posits that courts overall are ambivalent to remedying racial discrimination in criminal cases, even in cases where the defendant has proven an equal protection violation. For instance, courts remain ambivalent about whether the Equal Protection Clause includes the exclusionary rule remedy. Courts also apply traditional harmless error and preservation doctrine to avoid remedying proven equal protection violations during trial, at least when the defendant was the object of that discrimination. This paper argues that because of the unique gravity and harm of racial discrimination in a criminal case, including the clear culpability required to prove an equal protection violation, any such violation should necessitate a meaningful criminal procedure remedy. 

To illustrate this kind of judicial commitment to equal protection remedies, this paper highlights the recent concurring opinion of Washington State Supreme Court Chief Justice Barbara Madsen in State v. Monday, 257 P.3d 551 (Wa. 2011). In this opinion, the Chief Justice argued that harmless error analysis should not apply to the proven racial discrimination by the prosecution in this criminal case. On the contrary, the Chief Justice concluded, “[r]egardless of the evidence of [a] defendant’s guilt, the injection of insidious discrimination ... is so repugnant to the core principles of integrity and justice upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint.”

Prescott on the Criminogenic Potential of Sex Offender Registries

J.J. Prescott (University of Michigan Law School) has posted Do Sex Offender Registries Make Us Less Safe? (Regulation, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a potential new victim, how can it hurt if the police are keeping better tabs on that offender or if the offender’s neighbors are made aware that he is a threat so they can take measures to reduce their own risk of victimization? But this question and its implied answer presume that SORN laws have no influence whatever on whether released sex offenders opt to pursue new victims in the first place. If the enforcement of notification laws imposes significant financial, social, and psychological costs on released sex offenders, as an avalanche of evidence suggests it does, then notification may in fact be criminogenic. The result may well be many more attempted attacks by convicted sex offenders and therefore higher recidivism rates on the whole, even if every individual attack attempted becomes somewhat less likely to succeed.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	613	Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right  Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,  University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,  Date posted to database: April 30, 2012
2	495	Corporate Shams  Joshua D. Blank, Nancy C. Staudt,  New York University School of Law, USC Law School,  Date posted to database: April 5, 2012
3	314	The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem  Lucian E. Dervan, Vanessa Edkins,  Southern Illinois University School of Law, Florida Institute of Technology,  Date posted to database: May 31, 2012
4	220	Predictive Policing: The Future of Reasonable Suspicion  Andrew Guthrie Ferguson,  UDC David A. Clarke School of Law,  Date posted to database: May 2, 2012
5	202	Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community  Steven H. Resnicoff,  DePaul University College of Law,  Date posted to database: June 2, 2012
6	192	The Nature and Purpose of Evidence Theory  Michael S. Pardo,  University of Alabama School of Law,  Date posted to database: May 16, 2012
7	177	Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement  D. Daniel Sokol,  University of Florida - Levin College of Law,  Date posted to database: June 7, 2012
8	174	The 2009 NAS Forensic Science Report: A Literature Review  Paul C. Giannelli,  Case Western Reserve University - School of Law,  Date posted to database: April 12, 2012  Last Revised: May 2, 2012
9	155	The Oral Hearing in Competition Proceedings Before the European Commission  Wouter P. J. Wils, Wouter P. J. Wils,  European Commission, University of London - School of Law,  Date posted to database: May 3, 2012 [10th last week]
10	137	The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion  Robert J. Smith, Robert J. Smith,Justin D. Levinson,  DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,  Date posted to database: April 25, 2012 [9th last week]