October 13, 2012
McCord on Drugs and Death Sentencing
David McCord (Drake University Law School) has posted Lethal Connection: The 'War on Drugs' and Death Sentencing (The Journal of Gender, Race & Justice, Vol. 15, pages 1-26, 2012) on SSRN. Here is the abstract:
Many defendants on death row committed murders in which illegal drugs were somehow involved. This Article attempts to explain and quantify the involvement of drugs in the cases of death-sentenced defendants during the six year period of 2004 to 2009 and to imagine the ways that death rows would look different if there had been no "War on Drugs." The Article will aslo examine the effects of drug-involved death sentences with respect to gender, race, and ethnicity (particularly Latino ethnicity).
October 12, 2012
"In D.C. Circuit, Ex-Grand Juror Fights Federal Prosecutor, Court Official"
From the Blog of LegalTimes:
A former federal prosecutor and a District of Columbia court official want an appeals court to find them immune in a suit that alleges they violated the law in their successful effort to remove a grand juror from service for alleged disruptive behavior.
The grand juror, Washington resident Peter Atherton, contends he was kicked off a D.C. Superior Court grand jury panel for asking too many questions of prosecutors about the elements of cases. He claims other jurors were too hastily moving through cases.
"eRape?: Should Courts Allow Rape Defendants to Discover the Google Searches of Their Victims?"
Colin Miller has this post at EvidenceProf Blog. In part:
Most of these requests fell on deaf ears. The court did, however, order Bennett to comply with the subpoena to disclose her Google searches. Specifically,
Defense attorney Stephen Houze requested Bennett’s Google search records because she had looked up the definition of rape in Oregon.
“At a minimum, it would have established that the accuser her self had grave doubt in her mind as to whether her encounter with my client constituted criminal behavior at all,” said Houze.
I think that Houze and I might quibble over what is meant by “at a minimum.” Why did Bennett look up the definition of “rape” in Oregon? I imagine that she was trying to determine the exact type or degree of rape that Bray committed and how long he could be put behind bars. I have little doubt that Bennett believed that the choking, beating, and coerced sex she endured was “rape.” Imagine instead that Bray broke into Bennett’s house and stole her television. If Bray then looked up the definition of “burglary” in Oregon, would we think that Bennett doubted that she was burglarized?
"UN: Iran must halt capital punishment"
The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] called on Iran Friday to immediately stop all executions [press release], including 11 planned for Saturday. The OHCHR stated that Iran has failed to provide the accused with due process and fair trials and that the death penalty is not appropriate for certain crimes for which Iran is using it, including drug offenses. The UN has repeatedly called on Iran to abandon the death penalty, but instead the country has increased the number of people it is executing. More than 300 people have been executed in Iran since the beginning of 2012, mostly for drug charges, and many more are believed to be on death row.
Muro on "Blackmail" in Commercial Transactions
Blackmail, the crime consisting in a threat to perform a legally permissible action which can potentially harm the victim unless the victim gives the blackmailer some sort of consideration, has attracted lots of attention from law professors and philosophers. Other threats to engage in legally permissible acts, such as commercial threats, do not stir as much controversy up. In fact, commercial threats are believed to merely be instances of “hard bargaining.” This paper will question this classification and will attempt to show that there is at least one category of commercial threats, particularly those which can arise within a long-term lopsided commercial relationship, i.e. distressed lending, that are in no meaningful way different from the ones that have warranted support for blackmail criminalization. As a result, this paper suggests that analogical solutions should be prescribed in both cases as a way to maintain coherence within the legal system.
Hoeffel & Singer on Border Searches of Personal Electronic Devices
Janet C. Hoeffel (pictured) and Stephen Singer (Tulane University - Law School and Loyola University New Orleans College of Law) have posted Fear and Loathing at the U.S. Border (Mississippi Law Journal, Vol. 82, No. 4, 2013) on SSRN. Here is the abstract:
In this paper, we argue that when technology crosses the border in the form of personal electronic devices (PEDs), there is a unique confluence of factors that requires a fresh look at the border search exception. International travel is now commonplace, or at least relatively routine, and personal electronic devices are ubiquitous and often necessary during travel. In this context, combining the Supreme Court’s refusal to question individual officers’ motives for a search with current border search law results in government searches which, we submit, are “unreasonable” under the Fourth Amendment. We demonstrate how the border search exception to the Fourth Amendment has never actually gone through a doctrinal development, and, as such, it is rather thoughtless. We show how the doctrine should appear if developed as an administrative search rather than a sui generis historical exception, and we demonstrate why the doctrine dictates that motive matters, at least when it comes to PEDs. Finally, we suggest that a correct Fourth Amendment analysis would allow a continuance of the suspicionless border searches that everyone undergoes, but that before a person can be targeted for a more intrusive, discretionary secondary search or seizure, agents must have at least reasonable suspicion of criminal activity.
October 11, 2012
"Could Specialized Criminal Courts Help Contain the Crises of Overcriminalization and Overincarceration?"This piece, based on an article in the Georgetown Law Journal written by Allegra M. McLeod (Georgetown Law), appears in The Legal Workshop.
"George Zimmerman Team Begins Offense"
From TalkLeft, posted Tuesday:
To date, the public has only seen George Zimmerman's legal team playing defense - fighting for bond and against the negative perceptions of their client created by the selective discovery released and the Martin family and their media team of lawyers and consultants.
Yesterday, that began to change.
Tanguay-Renaud on Tadros's Theory of Punishment
François Tanguay-Renaud (Osgoode Hall Law School - York University) has posted Victor's Justice: The Next Best Moral Theory of Criminal Punishment? (Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
In this essay, I address one methodological aspect of Victor Tadros's The Ends of Harm - namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment.
Mazzone on Batson Remedies
Jason Mazzone (University of Illinois College of Law) has posted Batson Remedies (Iowa Law Review, Vol. 97, pp. 1613-1633, 2012) on SSRN. Here is the abstract:
Batson v. Kentucky and its progeny hold that discriminatory uses of peremptory challenges in jury selection are unconstitutional. However, the appropriate remedy for the constitutional violation is unclear. The Batson Court addressed remedies in a single ambiguous footnote that identifies two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these are the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. Subsequent Supreme Court cases also do not clarify what the appropriate remedy is for a Batson violation, and the Court has never overturned a remedy imposed by a trial judge. This essay, prepared for a symposium marking the twenty-fifth anniversary of Batson, canvasses the remedies that state courts have imposed for Batson violations and discusses some underappreciated opportunities that Batson presents to state courts to address discriminatory uses of peremptory challenges. Recent case law from the Supreme Court distinguishes between the authority — vested ultimately in that Court — to define a federal constitutional violation and the authority of state courts to determine how best to remedy the violation. Read in light of this case law, Batson gives state courts considerable leeway to adopt their own unique measures to respond to discrimination in jury selection practices.
October 10, 2012
"South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale"
Orin Kerr has this post at The Volokh Conspiracy. In part:
In the last decade, lower courts have divided on the proper privacy protections that apply to opened e-mail held by Internet service providers. The Stored Communications Act gives high privacy protection to e-mails in the course of delivery, and then gives lesser privacy to remotely stored files in the cloud. The difficult question is how to treat opened e-mails held by an ISP: After the user has looked at the e-mail and read it, does the Stored Communications Act treat that copy of an already accessed e-mail stored on the server as an e-mail in the course of delivery or does it treat that copy as a remotely stored file in the cloud?
. . .
In the Jennings case, all five Justices agreed that the e-mails viewed by the daughter-in-law were not in “electronic storage” under the definition. But they divided sharply as to why, with no view getting a majority.
Transcript of argument on status of state drug offense as aggravated felonyThe transcript in Moncrieffe v. Holder is here.
Amann on Justice Stevens' Methodology
Diane Marie Amann (University of Georgia School of Law) has posted John Paul Stevens, Originalist (Northwestern University Law Review, Vol. 106, No. 2, p. 743, 2012) on SSRN. Here is the abstract:
Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism." It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist – as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution. To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.
Dupont on Computer Hackers
Benoit Dupont (University of Montreal - School of Criminology) has posted Skills and Trust: A Tour Inside the Hard Drives of Computer Hackers on SSRN. Here is the abstract:
Stories of the exploits of computer hackers who have broken into supposedly secure government and corporate information systems appear almost daily on the front pages of newspapers and technology websites, yet we know very little about the individuals behind these headlines. Most media accounts and academic studies on hackers suffer from a number of biases that this research attempts to overcome. A case study based on the seized communication logs of ten confirmed co-offenders is used to expand our knowledge of the social norms and practices that govern interactions between malicious hackers. After presenting the data and how the material became available to the author, the remaining sections focus on the two variables that define this criminal network’s performance: skills and trust. The skills under consideration are the three different sets of cognitive and practical abilities that malicious hackers need in order to succeed financially. Monetization and social skills, in addition to technical skills, play key roles in profit-oriented malicious hacking and explain why earning a decent living in the computer underground remains a laborious endeavour, even for advanced hackers. Trust, which facilitates the diffusion of technical, monetization, and social skills and fosters collaboration, was found to be much lower in this network than is generally assumed in the literature. The need for monetization and social skills as well as the lack of trust between members may partly explain why hacker networks are so ephemeral and vulnerable to law enforcement disruption.
Eldred on Improving Advocacy for Indigents
Tigran Eldred (New England Law: Boston) has posted Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases (Rutgers Law Review, Forthcoming) on SSRN. Here is the abstract:
The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance. Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.
October 9, 2012
Cade on Plea Bargains for Noncitizens in Misdemeanor Courts
Jason Alexis Cade (NYU School of Law) has posted The Plea Bargain Crisis for Noncitizens in Misdemeanor Court (Cardozo Law Review, Vol. 34, 2013 (Forthcoming)) on SSRN. Here is the abstract:
This Article considers three factors affecting noncitizens charged with misdemeanors: (1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; (2) the integration of federal immigration enforcement programs intended to apprehend criminal noncitizens; and (3) the institutional norms in lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges.
The Article contends that the convergence of these factors generates convictions triggering deportation and other negative immigration consequences without reliably indicating guilt, undermining the integrity of both criminal justice and deportation systems. The Article also argues that, contrary to the Supreme Court’s assumption in Padilla v. Kentucky, longtime lawful permanent resident defendants are unlikely to be able to effectively negotiate for immigration-safe dispositions in the petty cases where the rift between the underlying criminal conduct and the deportation outcome is largest.
The Article’s analysis suggests that reforms at both federal and state levels remain critical to address the plea-bargain crisis for noncitizens in misdemeanor court and the disproportional immigration consequences of petty convictions. At a minimum, courts should have a more accurate understanding of how the misdemeanor system works when interpreting the immigration consequences of ambiguous minor convictions, including in Moncrieffe v. Holder, currently pending before the United States Supreme Court.
Transcript of argument in habeas caseThe transcript in Tibbals v. Carter is here.
Rochvarg on the Multiple Conspiracies and Watergate
Arnold Rochvarg (University of Baltimore - School of Law) has posted Watergate, Multiple Conspiracies, and the White House Tapes (Chapman Law Review, Vol. 16, No. 1, Spring 2012, pp. 47-70) on SSRN. Here is the abstract:
On January 1,
1975, John Mitchell, former United States Attorney General, John Ehrlichman,
former Chief White House Assistant for Domestic Affairs, H.R. Haldeman, former
White House Chief of Staff, and Robert Mardian, former Assistant Attorney
General, were convicted of conspiracy for their involvement in what is generally
known as "Watergate." The Watergate conspiracy trial, presided over by Judge
John Sirica, had run from October 1, 1974 until December 27, 1974. The trial
included the in-court testimony of most of the figures involved in the Watergate
scandal, and the playing of thirty of the "White House tapes." The purpose of
this Symposium article is to discuss whether the evidence presented at the
Watergate trial is better understood as evidence of multiple conspiracies, as
argued by two of the defendants, or as a single conspiracy as argued by the
prosecution. The article first will set forth the law on multiple conspiracies
and apply that law to the evidence presented at the Watergate conspiracy trial.
The article will then discuss whether the admission into evidence of certain
White House tapes premised on the single conspiracy view may have prejudiced any
of the convicted defendants.
Marceau on Aggravating Factors and Ring
Justin F. Marceau (University of Denver Sturm College of Law) has posted Arizona's Ring Cycle (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:
the Supreme Court held that the finding of an aggravating factor, as required to
be eligible for a sentence of death under the Arizona sentencing scheme, could
not be made by a judge alone. Each exclusively judge-based sentence of death
that was pending at the time Ring was handed down spurred a duty on the
part of state courts to either change the sentence from death to life or remand
the case for re-sentencing under a new capital sentencing statute. The death
penalty “ring cycle” then is comprised of the remands and re-sentencings as
necessary to comply with the Sixth Amendment. This Article is the first to
provide an empirical examination of the results in Ring remand cases.
Specifically, the Article details the Ring remand procedures and the
results of these remands as they played out in Arizona.
Kerr on the Curious History of Fourth Amendment Searches
Orin S. Kerr (George Washington University - Law School) has posted The Curious History of Fourth Amendment Searches (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment 'search.' According to the Court, the trespass test had controlled the search inquiry before the reasonable expectation of privacy test was introduced in Katz v. United States, 389 U.S. 347 (1967). Although Katz had rejected the trespass test, Jones restored it. This essay examines the history of the Fourth Amendment search doctrine and reaches the surprising conclusion that the trespass test never existed. Pre-Katz decisions did not adopt a trespass test, and instead grappled with many of the same questions that the Court has focused on when applying the reasonable expectation of privacy test. The idea that trespass controlled before Katz turns out to be a myth of the Katz Court: Katz mischaracterized Fourth Amendment history to justify a break from prior precedent. Jones thus restores a test that never actually existed. The essay concludes by considering both the doctrinal and theoretical implications of the surprising history of the Fourth Amendment search doctrine.