September 29, 2012
King on Martinez v. Ryan
Nancy J. King (Vanderbilt University - Law School) has posted Preview: A Preliminary Survey of Issues Raised by Martinez v. Ryan (LaFave, Israel, King & Kerr, Criminal Procedure (3d ed.), 2012-13 supplement, Forthcoming) on SSRN. Here is the abstract:
The Court’s 2012 decision in Martinez v. Ryan raises numerous issues for litigants and courts. Those issues as well as developing case law as of September 2012 are included in the discussion posted here, forthcoming as part of the 2012-2013 updates to the comprehensive treatise on criminal procedure coauthored by Professors Wayne LaFave, Jerold Israel, Nancy King, and Orin Kerr (database CRIMPROC on Westlaw).
Topics addressed include the rationale for the Martinez decision; what constitutes an “initial review collateral proceeding”; the effect of the decision on Edwards v. Carpenter; measuring the effectiveness of post-conviction counsel after Martinez; what is a “substantial” claim of trial counsel ineffectiveness; and the application of Martinez to defaults during proceedings after the “initial review collateral proceeding. ”
Weisselberg on the 2011-12 Term
Charles D. Weisselberg (University of California, Berkeley - School of Law) has posted GPS Monitoring and More: Criminal Law Cases in the Supreme Court’s 2011-12 Term (48 Court Review 60 (2012)) on SSRN. Here is the abstract:
This article examines some of the most notable criminal-law-related opinions of the Supreme Court’s 2011-12 Term, focusing on those decisions that have the greatest impact upon the states.
Without a doubt, the past Term was "big." The headline on the civil side of the docket was the Affordable Care Act decision. The blockbuster on the criminal side was United States v. Jones, the Global Positioning System (GPS) monitoring case. In Jones, the Court showed that some old things can be new again — the justices gave us “new” ways of thinking about Fourth Amendment searches. There were other key criminal-law rulings as well, including on effective assistance and plea negotiations, confrontation, juries and criminal fines, juvenile life-without-parole sentences, and double jeopardy. And as in the previous Term, the Court issued several opinions emphasizing the deference to be afforded state courts on federal habeas corpus review. The article concludes with a brief preview of the 2012-2013 Term.
Cockfield on Surveillance as Law
Since 9/11, many governments have amended their laws to make it easier for state actors to watch us for security (and efficiency) purposes. As discussed by Surveillance Studies researchers and others, at the same time surveillance technology developments have made it easier and less costly for the private sector and government to compile detailed profiles about us. When government surveillance undermines important democratic practices like privacy, the surveillance itself operates independently as a kind of law that shapes individual and social behaviour in ways that were not intended by the adopters of a security initiative. Traditional legal tools, such as federal or sub-federal laws that govern the information collection practices of government agencies, provide an insufficient safeguard against these worries. To re-establish an individualʼs actual and perceived control over personal information, governments need to develop effective institutions (with audit and investigatory powers) as well as new laws and policies to govern the conception, design, implementation and ongoing evaluation of new security initiatives. A 2010 reform effort by the Office of the Privacy Commissioner of Canada serves as an example of this approach.
Next week's criminal law/procedure arguments
Issue summary from ScotusBlog:
Wednesday, Oct. 3
- Johnson v. Williams: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.
September 28, 2012
Miller on Forfeiture by Wrongdoing
Colin Miller (University of South Carolina School of Law) has posted The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing on SSRN. Here is the abstract:
On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.
The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. Califonria endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.
Allen on Burdens of Proof
Ronald J. Allen (Northwestern University Law School) has posted Burdens of Proof (Evidence Science, Forthcoming) on SSRN. Here is the abstract:
The conceptual foundations of burdens of proof are examined, and the unified theory of evidentiary devices derivable from those foundations is explicated. Both the conceptual foundations and the unified theory generated are shown to rest on questionable assumptions about conventional probability theory. The resulting analytical difficulties are analyzed. Inference to the best explanation and the relative plausibility theory are examined as potentially providing the foundation to a superior conceptualization of the burden of proof.
Gatewood on US v Jones
Jace C. Gatewood (Atlanta's John Marshall Law School) has posted It’s Raining Katz and Jones: The Implications of United States v. Jones – A Case of Sound and Fury (Pace Law Review, Vol. 33, No. 2, 2013 Forthcoming) on SSRN. Here is the abstract:
This Article discusses the implications of United States v. Jones, the recent Supreme Court decision that held that the warrantless installation and use of a GPS tracking device to track a suspect’s movements constitutes a search under the Fourth Amendment when accompanied by a physical trespass. This Article examines the Court’s decision in light of emerging technology capable of duplicating the monitoring undertaken in Jones with the same degree of intrusiveness attributable to GPS tracking devices, but do not depend on any physical invasion of property. This Article also examines how the pervasive use of this emerging technology may reshape reasonable expectations of privacy concerning an individual’s public movements making it all the more difficult to apply the Fourth Amendment constitutional tests outlined in Jones.In this regard, this Article explores recent trends in electronic tracking, surveillance and other investigative methods that have raised privacy concerns, including automatic license plate recognition systems, Smartphone tracking, and third-party subpoenas to access private information from third-party service providers, may fall outside the purview of both Jones and Katz, even though the accumulated effect of the information collected can provide a comprehensive record of an individual’s comings and goings. This Article makes the argument that neither Jones nor the reasonable expectation of privacy test set forth in Katz provides adequate Fourth Amendment protection against warrantless unwanted electronic intrusions by law enforcement or other nontrespassory invasions (even though such intrusion may result in the collection of vast amounts of information about an individual’s daily movements) either because there is no physical trespass involved, or because of the nature of the intrusion or the pervasiveness of the technology involved.
September 27, 2012
"No, the Officer Doesn’t Have to Announce the Offense When He Makes An Arrest (UPDATE: Although Some State Laws May Require Such Notice)"Orin Kerr has this post at The Volokh Conspiracy, departing from a video of columnist Mona Eltahawy's arrest.
Avraham & Statman on the Comparative Nature of Desert
Ronen Avraham (pictured) and Daniel Statman (University of Texas at Austin - School of Law and University of Haifa - Department of Philosophy) have posted More on the Comparative Nature of Desert: Can a Deserved Punishment Be Unjust? on SSRN. Here is the abstract:
Adam and Eve have the same record yet receive different punishment. Adam receives the punishment that they both deserve, whereas Eve receives a more lenient punishment. In this paper, we explore whether a deserved-but-unequal punishment, such as what Adam receives, can be just. We do this by explicating the conceptions of retributive justice that underlie both sides of the debate. We argue that inequality in punishment is disturbing mainly because of the disrespect it often expresses towards the offender receiving the harsher treatment, and also because it casts doubt on whether Adam got what he deserved. We suggest that when no disrespect is involved and when it is clear that the criminal got what he deserved, inequality is not worrisome.
Shatz & Dalton on Challenging the Death Penalty with Statistics
Steven F. Shatz (pictured) and Terry Dalton (University of San Francisco - School of Law and University of California, Irvine) have posted Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study on SSRN. Here is the abstract:
In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges. The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.
In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing. The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county. During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans. The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County. We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.
Lacey & Pickard on Responsibility Without Blame
Nicola Lacey (pictured) and Hanna Pickard (University of Oxford - Faculty of Law and University of Oxford - Faculty of Philosophy) have posted From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm ((2013) Oxford Journal of Legal Studies (Forthcoming)) on SSRN. Here is the abstract:
Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences – typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context – imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice.
September 26, 2012
Bar-Gill & Friedman on Warrants
Oren Bar-Gill and Barry Friedman (pictured) (New York University (NYU) - School of Law and New York University School of Law) have posted Taking Warrants Seriously (Northwestern University Law Review, Vol. 106, Issue 4, 2012, Forthcoming) on SSRN. Here is the abstract:
commentators are increasingly concerned about police misconduct — searches and
seizures that fail to comply with Fourth Amendment protections. Current doctrine
attempts to deter such misconduct with the threat of excluding unlawfully seized
evidence. The remedy of exclusion is weak, however, in large part because judges
only see cases in which the defendant obviously is guilty. Despite years of
proposals, the alternative of money damages is largely unavailable. The problem
is exacerbated because Fourth Amendment law is notoriously uncertain. The
combination of these three factors results in ineffective deterrence of Fourth
Amendment violations. We propose to replace the failed deterrence model with a
stringent ex ante warrant requirement. We make a novel case for warrants based
on findings from the social sciences. The Court, rather than continuously
weakening the warrant requirement, should reverse course and set warrants as the
centerpiece of the Fourth Amendment.
Kaplan on Oregon's Death Penalty
Aliza B. Kaplan (Lewis & Clark Law School) has posted Oregon's Death Penalty: The Practical Reality (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:
Governor John Kitzhaber’s suspension of the death penalty and his call to “all Oregonians to engage in the long overdue debate that [the death penalty] deserves” has provided a unique opportunity to examine some of the practical considerations implicated in the death penalty in Oregon and around the country. In this article, I hope to participate in this debate by setting forth a few of the pragmatic reasons why it is not worthwhile to maintain the death penalty in Oregon. In Part I, I explain the history of the death penalty in Oregon. In Part II, I focus on wrongful convictions. Included in this section are stories of innocent people sentenced to death who were innocent of the crimes for which they were convicted, sentenced and imprisoned.Wrongful convictions have significantly changed the discussion of the death penalty around the country. Oregon, like most states, has wrongfully convicted and imprisoned innocent people and thus, there is always the possibility that Oregon could execute an innocent person. In Part III, I examine the costs to taxpayers of maintaining a death penalty system in Oregon and in other states, like Oregon, that rarely execute anyone. In part IV, I focus on Oregon’s inability to administer an effective death penalty — how changes in the law have contributed to Oregon’s lengthy, dysfunctional and costly death penalty system and how potential future litigation and changes to the law will only exacerbate these problems. And last, in Part V, I conclude with the recommendations that the Governor commute the sentences of those currently on death row and that he and the state legislature designate a committee to conduct a comprehensive review of Oregon’s death penalty system — a review designed to assess all aspects of Oregon’s death penalty, to identify its problems and determine whether solutions exist for its overhaul.
September 25, 2012
"ACLU files suit for information on automatic license plate readers"
The American Civil Liberties Union (ACLU) and the ACLU of Massachusetts(ACLUM) [advocacy websites] on Tuesday filed suit [complaint, PDF; press release] to obtain records and information regarding the use of automatic license plate readers (ALPRs) by federal law enforcement and agencies. The suit was filed in the US District Court of Massachusetts against the US Departments of Justice and Homeland Security [official websites] after the federal agencies refused to comply with a Freedom of Information Act request filed by the ALCU [JURIST report] in July. ALPRs are cameras mounted near roads and highways that photograph and record license plate numbers. The numbers are electronically interpreted so that police can be alerted when a license plate of interest is seen. The ACLU is seeking information about the length of time ALPR data is kept, with whom it is shared and the security of the records. They also seek information on any privacy polcies to protect drivers. An ALCUM staff attorney said, "If the government knows where you shop, where you worship, who you visit, and where you go to the doctor, it can put together a picture of your entire life. Police shouldn't track everybody. They should only track people they suspect of committing crimes."
Starr on Gender Disparities
Sonja B. Starr (University of Michigan Law School) has posted Estimating Gender Disparities in Federal Criminal Cases on SSRN. Here is the abstract:
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted. Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.
Pustilnik on Neurotechnologies and Criminal Procedure
Amanda C. Pustilnik (University of Maryland Francis King Carey School of Law) has posted Neurotechnologies at the Intersection of Criminal Procedure and Constitutional Law (in The Constitution and the Future of the Criminal Law, John Parry & Song Richardson, eds. Cambridge University Press, 2013 Forthcoming) on SSRN. Here is the abstract:
The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind.
Today's criminal law/procedure cert grants
Issue summaries are from ScotusBlog:
- Missouri v. McNeely: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
- Millbrook v. United States: immunity of the federal government from a lawsuit claiming negligence by officials of the Lewisburg, Pa., prison over a sexual assault on an inmate by three guards.
Lave on Violence Against Women
Tamara Rice Lave (University of Miami, School of Law) has posted Thinking Critically About How to Address Violence Against Women (University of Miami Law Review, Vol. 65, 2011) on SSRN. Here is the abstract:
Every day across the Americas, men, women, and children are forced to work in degrading circumstances due to structural poverty and inequality. Women and girls are often subjected to the worst abuses. The purpose of this essay is not to solve these problems. That is a job for the women who experience and resist subordination in their daily lives and their advocates. Instead, this essay has a more modest goal – to urge advocates to think critically about the task ahead and what limits, if any, should be placed on potential solutions.
September 24, 2012
"When GPS Tracking Violates Privacy Rights"
This editorial is from the New York Times:
For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.
The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.
The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”
"Do Users of Wi-Fi Networks Have Fourth Amendment Rights Against Government Interception?"
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.