August 25, 2012
Charlow on Batson and Equal Protection
Robin Charlow (Hofstra University School of Law) has posted Batson 'Blame' and Its Implications for Equal Protection Analysis (Iowa Law Review, Vol. 97, No. 5, 2012) on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
August 24, 2012
"Cases on Right to Counsel, Searches Top Supreme Court's 2011-2012 Term"This summary is from BNA. Hat tip to Crime and Consequences.
"Norway Mass Killer Gets the Maximum: 21 Years"
From The New York Times:
OSLO — Convicted of killing 77 people in a horrific bombing and shooting attack in July last year, the Norwegian extremist Anders Behring Breivik was sentenced on Friday to 21 years in prison — fewer than four months per victim — ending a case that thoroughly tested this gentle country’s collective commitment to values like tolerance, nonviolence and merciful justice.
Mr. Breivik, lawyers say, will live in a prison outside Oslo in a three-cell suite of rooms equipped with exercise equipment, a television and a laptop, albeit one without Internet access. If he is not considered a threat after serving his sentence, the maximum available under Norwegian law, he will be eligible for release in 2033, at the age of 53.
However, his demeanor, testimony and declaration that he would have liked to kill more people helped convince the judges that, however lenient the sentence seems, Mr. Breivik is unlikely ever to be released from prison. He could be kept there indefinitely by judges adding a succession of five-year extensions to his sentence.
Buchhandler-Raphael on Overcriminalization
Michal Buchhandler-Raphael (Washington and Lee University - School of Law) has posted Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization on SSRN. Here is the abstract:
The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.
Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted. Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors.
This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs." To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash. The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.
Miller on Evidence of a Homicide Defendant's Character in Self-Defense Cases
Colin Miller (University of South Carolina School of Law) has posted Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed on SSRN. Here is the abstract:
In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.
Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.
Shen on Neuroscience for Prosecutors
Francis X. Shen (University of Minnesota Law School) has posted Law and Neuroscience: Possibilities for Prosecutors (CDAA Prosecutors Brief, Vol. 33, No. 4, p. 17, 2011) on SSRN. Here is the abstract:
Many see the introduction of neuroscience into law as necessarily leading to reduced culpability, mitigation, and the ratcheting down of incarceration rates. But such possibilities may not materialize if prosecutors stay ahead of the brain science curve. This commentary provides a brief introduction to neurolaw, and highlights several key features of neuroscientific evidence that are relevant to prosecutors' work.
I propose strategies by which prosecutors may respond to the introduction of neuroscientific evidence by the defense.
Recognizing that the legal use of neuroscientific evidence relies so heavily on inference and interpretation, prosecutors have an opportunity to harness the power of brain science to both prevent its misuse and to constructively use the science to promote safety and social welfare. Possibilities abound for prosecutors who are willing to research, learn, and engage with the brain sciences.
August 23, 2012
"DNA Extraction, Plain View, and the Scope of the Exclusionary Rule: The Fourth Circuit’s Decision in United States v. Davis"
Orin Kerr has this interesting and useful post at The Volokh Conspiracy. In part:
[T]he majority’s extension of the good-faith exception strikes me as unwarranted and unfortunate. The Fourth Circuit reduces the exclusionary rule to a general test of individual culpability of the officers involved. Of course, there isn’t such evidence: Personal culpability is mostly about what the officers were subjectively thinking, and an officer’s subjective intent is irrelevant under Whren v. United States and difficult to establish even if it is considered relevant. In effect, there is little chance of exclusion without proof of state of mind, but the defense can’t get proof of state of mind so it doesn’t have much of a chance at suppression.
"Federal judge rules poker not 'gambling' under federal law"
A judge for the US District Court for the Eastern District of New York [official website] ruled Tuesday that a poker game operator could not be tried under a federal gambling law essentially because poker is more a game of skill than a game of chance. Judge Jack Weinstein wrote in a 120-page judgment [order, PDF] that the Illegal Gambling Business Act (IGBA) [Cornell LII materials] does not apply to the poker room operated in a warehouse owned by Lawrence Dicristina, from which Dicristina took five percent of each night's pot for covering costs and for his own profit. New York law recognizes poker as a form of gambling [NYT report], but no federal court had ever ruled on the subject.
Rapping on Redefining Success as a Public Defender
Jonathan Rapping (Atlanta's John Marshall Law School) has posted Redefining Success as a Public Defender: A Rallying Cry for Those Most Committed to Gideon's Promise (The Champion, National Association of Criminal Defense Lawyers, p. 30, June 2012) on SSRN. Here is the abstract:
Public Defenders fall short of their obligations to clients every day for reasons beyond their control. However, constantly failing to be able to achieve justice for those they are charged with serving can drive even the most committed public defenders from the profession. This article reframes the definition of success for public defenders and seeks to inspire those who do the work to continue fighting to make Gideon's promise a reality.
Mason on Jay-Z's 99 Problems and the Fourth Amendment
Caleb E. Mason (Southwestern Law School) has posted Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps (St. Louis University Law Journal, Vol. 56, No. 567, 2012) on SSRN. Here is the abstract:
This is a line-by line analysis of the second verse of “99 Problems,” by Jay-Z, from the perspective of a criminal procedure professor. It’s intended as a resource for law students and teachers, and for anyone who’s interested in what pop culture gets right about criminal justice, and what it gets wrong.
Weisberg on Attempt Law and the Rizzo Case
Robert Weisberg (Stanford Law School) has posted The Story of Rizzo: The Shifting Landscape of Attempt Law on SSRN. Here is the abstract:
People v. Rizzo, 158 N.E. 888 (N.Y. 1927), the case of a bunch of incompetent would-be robbers who never quite found their victim, is one of the great icons of attempt law and of criminal law generally. The prosecutor had plenty of evidence that the defendants were trying to find a payroll agent who was to deliver wages at a construction site, but they spent hours driving around the Bronx in futile pursuit of their prey, and spotted by the police, were arrested just before the intended victim showed up. In reversing the conviction for attempted robbery, the New York Court of Appeals held that the conduct of the defendants fell short of the line that divides preparation from attempt — although it also offered the police perhaps unwelcome congratulations for their vigilance. This chapter in Criminal Law Stories (Donna Coker & Robert Weisberg, eds., 2012), recounts the background of the Rizzo case and narrates the trial itself, which, amid a fair amount of comedy, offers a useful picture of late 1920s law enforcement and trial practice.But the chapter also views the opinion as doctrinally important. In holding that the defendants’ conduct was not “so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference,” the court reflects such defense-friendly tests as the “physical proximity doctrine,“ the “dangerous proximity doctrine,” or the “indispensable element test.” Not long after this decision, American law saw the advent of the MPC’s “substantial step” test, which, by putting much more emphasis on the manifest subjective mental state of the defendant, is much more prosecution-friendly and might have meant a victory for the state in Rizzo. On the other hand, the case also illustrates how substantive crime definitions interact with, and are sometimes contingent upon, rules of criminal procedure. In Rizzo, the strong evidence of the defendant’s intent came from police actions that might now barred by the Warren Court search-and-seizure and confession law, as well as the law addressing cross-admission of confessions in joint trials of accomplices.
August 22, 2012
Ryan on Death and Rehabilitation
Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Death and Rehabilitation on SSRN. Here is the abstract:
While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death spurs rehabilitation.
Courts’ and scholars’ conclusion that death is irrelevant to rehabilitation likely stems from changes in our understanding of rehabilitation. While it was once understood as referring to an offender’s character transformation, references to rehabilitation now often focus on offenders’ direct impacts on society. This has the effect, though, of distracting from the humanness of the worst offenders and consequently not providing them with true opportunities to transform their characters — a denial which challenges the Eighth Amendment’s focus on respecting the human dignity of the condemned.
Steiker & Steiker on Capital Punishment
Carol S. Steiker (pictured) and Jordan M. Steiker (Harvard Law School and University of Texas School of Law) have posted Entrenchment and/or Destabilization? Reflections on (Another) Two Decades of Constitutional Regulation of Capital Punishment (Law and Inequality: A Journal of Theory and Practice, Vol. 30, No. 2, 2012) on SSRN. Here is the abstract:
In this article, we revisit our 1995 analysis of the U.S. Supreme Court’s death penalty jurisprudence (Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 357) in light of the steep decline in death sentences and executions over the past decade. Our consideration of the causes of this precipitous and unexpected turnaround leads us to the surprising conclusion that the same regulatory reforms of the modern (post-1976) era that we earlier described as legitimating and entrenching the practice of capital punishment have also contributed to its recent destabilization. We contrast the effects of the death penalty reforms of prior generations – such as narrowing the scope of death-eligible crimes, making death sentences discretionary rather than mandatory, privatizing and centralizing executions, and improving execution methods – with the reforms of the modern era of constitutional regulation. The reforms of the modern era have vastly increased the regulation and cost of the death penalty, required the professionalization of the capital litigation bar, led to lengthy periods of time between sentencing and execution, increased the focus on mitigation in capital trials, and contributed to the proliferation of life-without-parole as an alternative to the death sentence. We argue that the current regime represents a fundamental break with past modes of regulating capital punishment in ways that render the current American death penalty unstable, indeed precarious. We explore the implications of these insights for two broader debates – the first about the relationship between reform and abolition, and the second about the causes of American “exceptionalism” with regard to capital punishment.
Frampton on Entrapment Doctrine
T. Ward Frampton has posted Positivism and Predisposition: The Forgotten Foundations of the Entrapment Doctrine on SSRN. Here is the abstract:
For the past eighty years, the entrapment doctrine has provided a legal defense for those facing federal prosecution, but only for those defendants lacking criminal “predisposition” prior to the government’s inducement. The peculiar contours of this doctrine have generated significant/academic debate, yet this scholarship has failed to explain why the entrapment doctrine developed as it did in the first instance. This Article addresses this gap by examining competing views on criminality and punishment in America during the doctrine’s emergence, highlighting the significant (though largely forgotten) impact of positivist criminology on the early twentieth-century legal imagination. Though positivism has long since been discredited as a criminological school, positivist theory helped shape the entrapment doctrine, and this intellectual context helps explain several features of the modern defense that have puzzled legal scholars. Unraveling these forgotten theoretical underpinnings thus provides a novel historical perspective on the modern doctrine’s formation, but it also offers a path forward for entrapment law today.
Matteson on the Savings Clause in 28 USC sec. 2255
Nicholas Matteson has posted Feeling Inadequate?: The Struggle to Define the Savings Clause in 28 U.S.C. § 2255 (Boston College Law Review, Vol. 53, p. 1, Forthcoming) on SSRN. Here is the abstract:
This Note discusses the enactment of 28 U.S.C. § 2255 and the fundamental changes the AEDPA brought to that statute. It then considers attempts by the U.S. Courts of Appeal to define the term “inadequate or ineffective,” the operative language of the savings clause. This Note argues that all of the tests adopted by the Courts of Appeal are fundamentally flawed when considered against all of the interests relevant to the statutory interpretation of § 2255. Finally,it proposes a new test to govern the operation of the savings clause that avoids the pitfalls of the tests adopted by the Courts of Appeal.
August 21, 2012
Paying for Your Public Defender
From FIndLaw. In part:
Also, even if you have the right to a public defender, you should know that in some jurisdictions, a public defender is not necessarily free. States are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Sometimes defendants have to pay the fees even if they're acquitted of the charges.
Engel on Applying the Fifth Amendment to Passwords
J. Adam Engel has posted Rethinking the Application of the Fifth Amendment to Passwords and Encryption in the Age of Cloud Computing (Whittier Law Review, Vol. 33, No. 3, 2012) on SSRN. Here is the abstract:
The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature. In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects and defendants to provide passwords and encryption keys despite claims of Fifth Amendment Privilege by witnesses and suspects. For example, in a Colorado case, the government sought to compel the defendant to enter a password into a laptop or otherwise provide access to encrypted data stored on her computer. The government apparently believed that the encrypted computer files contained evidence of fraudulent real estate transactions.
Encryption means the process by which a person changes plain, understandable information into unreadable letters and numbers using a mathematical algorithm. Encrypted data is accessible only through the use of a password or encryption key. The use of encryption technology by consumers has grown in recent years; computer and software manufacturers consider disk encryption a basic computer security measure and include disk encryption tools as a standard feature on most new computers.
Recent cases have focused on information stored on portable devices such as cell phones or computers. Because these devices are easy to steal or lose, consumers commonly use passwords to limit access to the devices, and encryption to prevent any unauthorized users from accessing sensitive data.
The government may gain access to password protected electronic devices and encrypted data through a number of legal means. In many cases, the government may have seized the electronic devices after executing a search warrant. In other cases, the government may have conducted a warrantless search of password protected electronic devices and encrypted data under an applicable exception to the Fourth Amendment’s warrant requirement. Most recently, the third party service providers received subpoenas from law enforcement or private entities to provide information stored for users by the third party service providers.
This article addresses the question of whether the Fifth Amendment prevents the government from forcing a witness to provide a password or encryption key to permit access to digital files. The Fifth Amendment generally protects citizens from being compelled to give incriminating testimony. The privilege extends not only to “answers that would in themselves support a conviction,” but also includes statements “which would furnish a link in the chain of evidence” needed by the prosecution.
The question of whether passwords and encryption keys are covered by the Fifth Amendment privilege against self-incrimination turns on courts’ views of the nature of this information. The privilege against self-incrimination is limited to “testimonial” evidence, or evidence that, explicitly or implicitly, provides or discloses information. The privilege does not apply to physical evidence, such as fingerprints or blood samples.
This issue has appeared infrequently in courts. The few courts to address this issue have generally concluded that the provision of a password on encryption key is testimonial because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data. Yet this is not the end of the analysis. Some of the early publications concerning this issue suggested that circumstances where suspects will successfully raise Fifth Amendment challenges to government efforts to compel the production of passwords and encryption keys were likely to be “rare.” A significant basis for this hypothesis was that, in many cases, production of the incrimination evidence would be exempt from Fifth Amendment protections under the foregone conclusion doctrine. Under the foregone conclusion doctrine, the provision of information is not subject to the Fifth Amendment privilege against self-incrimination when the existence and location of information are known to the government, and the act of providing the evidence adds little or nothing to the government’s case.
The foregone conclusion doctrine has been applied in limited instances to encrypted files stored on laptops and personal computers. However, recent changes in the technological landscape suggest that this issue is likely to become more prevalent in future litigation. The use of cloud computing services to store documents and images has grown significantly. Users of cloud services are less likely to actually save images and documents on handheld or personal devices but, instead, use handheld or personal devices to access images and documents saved on remote computers. In those situations, the possession of an encryption key or password may become important in order for the government to show ownership or access to records, websites or communications. As a result, suspects and defendants may be successful in arguing that the foregone conclusion doctrine does not make the privilege against self-incrimination inapplicable.
Chin on Collateral Consequences of Conviction
Gabriel J. Chin (University of California, Davis - School of Law) has posted The New Civil Death: Rethinking Punishment in the Era of Mass Conviction (University of Pennsylvania Law Review, Vol. 160, p. 1789, 2012) on SSRN. Here is the abstract:
Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term. However, this hardly means that the conviction is inconsequential. Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons.
Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences. However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment.
This treatment of collateral consequences is surprising. In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment.
Further, collateral consequences have practically revived the traditional punishment of civil death. Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status. Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government.
The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment. In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades. The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.
Lyon on Effective Assistance of Counsel
Andrea D. Lyon (DePaul University - College of Law) has posted The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough (The Champion, June 2012) on SSRN. Here is the abstract:
As a part of the ANtional Association of Crminal Defense Lawyers perspectives on Gideon v. Wainwright's 50th anniversary, this article examines the promise of effective assistance of defense counsel, and how low that standard is and its deleterious effects on justice.
Kim, Gostin & Cole on Child Abuse Reporting
Susan C. Kim , Lawrence O. Gostin (pictured) and Thomas B. Cole (Georgetown University Law Center , Georgetown University - Law Center - O'Neill Institute for National and Global Health Law and Journal of the American Medical Association) have posted Child Abuse Reporting: Rethinking Child Protection (JAMA, Vol. 308, pp. 37-38, 2012) on SSRN. Here is the abstract:
The general public has been bewildered by the magnitude of sex abuse cases and the widespread failure by pillars of the community to notify appropriate authorities. The crime of sexually abusing children is punishable in all jurisdictions and this article examines the duty to report suspected cases by individuals in positions of trust over young people, such as in the church or university sports. The Federal Child Abuse Prevention and Treatment Act (CAPTA) defines child maltreatment as an act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, sexual abuse, or exploitation, and establishes minimum federal standards. Each state has its own definitions of maltreatment and every state identifies persons who are required to report child abuse. As such, state law is highly variable in defining who has a mandatory duty to report, and clergy and other individuals in close supervision of children (e.g., athletic coaches, scout leaders, volunteers in religious programs, and university officials) may necessarily hold such duty.
The article outlines why there are strong moral reasons the law should require all adults in close supervision of children to report any individual who they have good reason to believe has abused a child and moreover outlines how to ensure prompt reporting of abuse, while still ensuring that respected individuals are not falsely accused.