Saturday, November 17, 2012
Dave Bewley Taylor and Christopher Hallam (International Drug Policy Consortium (IDPC) and International Drug Policy Consortium (IDPC)) have posted IDPC Response to the UNODC World Drug Report 2012 on SSRN. Here is the abstract:
26 June 2012 saw the launch of the United Nations Office on Drugs and Crime (UNODC)’s flagship publication, the World Drug Report.
This IDPC response provides an overview of the data and topics presented in the Report and where appropriate, within the broader context of the current state of the UN drug control framework, offer a critical analysis of both.
Friday, November 16, 2012
From the New York Times:
“What people don’t realize is that hacking and spying went mainstream a decade ago,” said Dan Kaminsky, an Internet security researcher. “They think hacking is some difficult thing. Meanwhile, everyone is reading everyone else’s e-mails — girlfriends are reading boyfriends’, bosses are reading employees’ — because it’s just so easy to do.”
. . .
E-mail providers like Google and Yahoo keep login records, which reveal I.P. addresses, for 18 months, during which they can easily be subpoenaed. The Fourth Amendment requires the authorities to get a warrant from a judge to search physical property. Rules governing e-mail searches are far more lax: Under the 1986 Electronic Communications Privacy Act, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for “unopened” e-mail, according to the Department of Justice’s manual for electronic searches. The rest requires only a subpoena.
The article goes on to explore alternatives that might enhance security.
Matthew Textor has filed United States V. Liddell: 8th Circuit Precedent at the Forefront of the Circuit Split Over the Quarles Public Safety Exception on SSRN. Here is the abstract:
The Eighth Circuit case of United States v. Liddell established a broader perspective of the 'public safety exception' to the Miranda requirement, which should be adopted universally. In Liddell, the court decided the Miranda requirement did not apply and allowed statements made by a suspect prior to his Miranda warning into evidence. The Liddell court held a sufficient public safety basis existed when there was a risk of police officers being injured from the mishandling of unknown firearms or drug paraphernalia. Specifically, the Liddell court allowed the police to ask a suspect, who had been arrested and secured, whether there were weapons or contraband in the car or apartment the police were about to search. In determining the outcome, the court broadened the existing exception to Miranda as established by the United States Supreme Court 28 years ago in the case of New York v. Quarles.
Michal Gilad has posted Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs (Whittier J. Child & Family Advocate, 2012, Forthcoming) on SSRN. Here is the abstract:
The juvenile justice system was designed with the special needs of minors in mind. However, on every given day, children and youths interact with the criminal justice system under countless different circumstances, beyond the boundaries of the juvenile justice system. The inclusion of unaccompanied juveniles in witness protection programs is only one of the less commonly explored such interactions. This article is the first scholarly piece to peek into the secretive world of witness protection, to identify the unique challenges associated with the protection of unaccompanied minor witnesses. Using authentic case-studies and invaluable insights of practitioners in the field, it provides an in-depth interdisciplinary analysis of the legal, social, psychological and developmental factors that affect the protection of adolescents. Thus, the article provides a comprehensive basis for policy decisions that facilitate the effective protection of minor witnesses, who are a vital element in the prosecution of serious felonies threatening public safety. More broadly, it can inform policy makers about the unique characteristics of juveniles, and the urgent importance of adapting criminal justice policies, beyond the criminal justice system, to their special needs, in order to increase efficacy.
Thursday, November 15, 2012
David H. Kaye (Pennsylvania State University - Law School) has posted Beyond Uniqueness: The Birthday Paradox, Source Attribution, and Individualization in Forensic Science Testimony (Law, Probability & Risk, November 2012) on SSRN. Here is the abstract:
For many decades, forensic science identification experts have insisted that they can ‘individualize’ traces such as fingerprints and toolmarks to the one and only one object that produced them. They have relied on a theory of global uniqueness of patterns as the basis for such individualization. Although forensic practitioners and theorists are moving toward a more probabilistic understanding of pattern matching, textbooks and reference works continue to assert that uniqueness justifies individualization and that experience demonstrates discernible uniqueness. One response to the last claim applies a famous problem in probability theory — the Birthday Problem — to the forensic realm to show that even an extensive record of uniqueness does little to prove that all such patterns are unique. This essay describes the probabilistic reasoning and its limits. It argues that the logic of the Birthday Paradox does indeed undercut the theory of global, general uniqueness, but that the reasoning is logically compatible with opinion testimony that a specific object is nearly certain to be the source of a pattern or trace. It also notes some alternatives to categorical claims of individualization, whether those claims are based on the theory of global, general uniqueness or instead on some less sweeping and more defensible theory.
Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Exclusion and Control in the Carceral State (16 Berkeley Journal of Criminal Law 259 (2011)) on SSRN. Here is the abstract:
Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.
From The New York Times:
BP, the British oil company, said Thursday that it would pay $4.5 billion in fines and other payments to the government and plead guilty to 14 criminal charges in connection with the giant oil spill in the Gulf of Mexico two years ago.
. . .
BP agreed to plead guilty to 11 felony counts of misconduct or neglect related to the deaths of 11 people in the Deepwater Horizon explosion in April 2010, which released millions of barrels of oil into the gulf over the course of the next few months.
The Justice Department also filed criminal charges against three BP employees on Thursday.
The government charged the top BP officers aboard the drilling rig, Robert Kaluza and Donald Vidrine, with manslaughter in connection with each of the men who died, alleging that they were negligent in supervising tests before the well blowout and explosion that destroyed the rig.
Prosecutors also charged BP’s former vice president for exploration in the Gulf of Mexico, David Rainey, with obstruction of Congress and making false statements about the rate at which oil was spilling from the well.
Private police assume many of the same roles as traditional law enforcement. But courts and legislatures regulate public and private police very differently. This article evaluates the statutory and judicial regulation of private police. By collecting and coding all state statutes related to the regulation of private police, I theorize on the inadequacies of the current regulatory scheme. I show that most state statutes only regulate a certain category of private police officers, leaving a substantial portion of the private policing industry virtually unregulated. Many state regulations of private police misunderstand, and thus inadequately protect against the threat posed by the private policing industry. I argue that while most state regulations facilitate predictable transactions for security services, few statutes protect individuals from the potential social harms of the privatized police. Based on these descriptive observations, I make several normative recommendations for future regulation. In doing so, I borrow from the sociological literature on organizational regulation. I conclude that judicial attempts to control private police behavior through the expansion of the state action doctrine would be ineffective at deterring private police misconduct. Instead, state legislatures should expand the depth and breadth of current statutes.
Wednesday, November 14, 2012
This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family.
Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort we have undertaken will, we hope, not only inform academics but empower regulators and administrators of prisons to implement thoughtful reforms.
Zoe Argento (Roger Williams University School of Law) has posted What the Digital Millennium Copyright Act Can Learn from Medical Marijuana: Fixing the Antitrafficking Provisions by Basing Liability on the Likelihood of Harm (Columbia Journal of Law & the Arts, Vol. 35, p. 503, 2012) on SSRN. Here is the abstract:
This Paper addresses the contradiction posed by a law that expressly allows decrypting a DVD to make certain types of fair uses while also banning the software necessary for decryption. Section 1201 of the Digital Millennium Copyright Act allows users to circumvent the digital locks protecting copyrighted works in some circumstances, but prohibits manufacturing and distributing the tools required to do so in all circumstances. In effect, § 1201 grants rights while banning the means necessary to take advantage of those rights. Circumvention tools are indeed capable of causing harm — by unlocking digital works for the purpose of infringement. But circumvention tools are also necessary for valuable uses — making digitally locked works available for purposes of free speech, research, education and privacy. In essence, regulating circumvention tools is the problem of regulating a tool with both fair and foul uses. This is not a new problem. As in legal regulations of similarly dual purpose tools, from medical marijuana to locksmith tools, liability for manufacturing and distributing circumvention tools should be based on the likelihood that such activity actually leads to harm.
Tuesday, November 13, 2012
Stanford law professor David Mills, Romano’s boss, came up with the idea of trying another ballot measure based on Cooley’s proposal for reform and with the district attorney’s endorsement. Romano and his students co-wrote the initiative with the NAACP Legal Defense Fund and Cooley’s office. Mills became the chief funder, donating $1 million to spearhead the cause. And Romano’s Stanford students indefatigably collected signatures to get the measure on the ballot.
The Proposition 36 team argued that the state was wasting $100 million a year locking up petty criminals. In a state with a perpetual budget crisis, that would seem like a strong card to play. But a Los Angles Times poll in September suggested otherwise: Support for the measure increased only slightly when the survey question about curtailing three strikes included the cost savings. Maybe what mattered most was fairness or the lack thereof, illustrated by stories like Norman Williams’.
Michal Gilad and Tal Gat have posted U.S. v. My Mommy: Evaluation of Prison Nurseries as a Solution for Children of Incarcerated Women (New York University Review of Law & Social Change, Vol. 36, 2012) on SSRN. Here is the abstract:
Several millions of children around the world suffer from the detrimental effects of parental incarceration. In the United States alone, over a quarter of a million children are separated from their mothers due to incarceration. Despite the fast growing magnitude of the problem and its vast effect on children, families and communities in the U.S. and around the world, relatively little attention is attributed to it in legal and social science scholarship. The article provides a comprehensive analysis of Prison Nursery Programs as a possible solution for children of incarcerated mothers. This is the first scholarly article to provide a diverse perspective that takes into consideration the rights and interests of all the parties involved, namely, the child, the mother, the state and the general public. It also provides a comparative analysis, suggesting policy improvements based on lessons learned from the experience of European countries in the field. Thus, the article provides a comprehensive basis for policy decisions concerning the institution of Prison Nursery Programs, as well as solutions for children suffering from parental incarceration in general. It also proposes new research directions that could advance this underexplored field.
From The New York Times:
“There should be an investigation not of the personal behavior of General Petraeus and General Allen, but of what surveillance powers the F.B.I. used to look into their private lives,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in an interview. “This is a textbook example of the blurring of lines between the private and the public.”
Law enforcement officials have said they used only ordinary methods in the case, which might have included grand jury subpoenas and search warrants. As the complainant, Ms. Kelley presumably granted F.B.I. specialists access to her computer, which they would have needed in their hunt for clues to the identity of the sender of the anonymous e-mails. While they were looking, they discovered General Allen’s e-mails, which F.B.I. superiors found “potentially inappropriate” and decided should be shared with the Defense Department.
In a parallel process, the investigators gained access, probably using a search warrant, to Ms. Broadwell’s Gmail account. There they found messages that turned out to be from Mr. Petraeus.
Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, said the chain of unexpected disclosures was not unusual in computer-centric cases.
Sonja B. Starr (pictured) and M. Marit Rehavi (University of Michigan Law School and University of British Columbia) have posted Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker on SSRN. Here is the abstract:
Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws. The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates. The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.
Monday, November 12, 2012
Alexandra Natapoff (Loyola Law School Los Angeles) has posted Aggregation and Urban Misdemeanors (Fordham Urban Law Journal, Vol. 40, 2013) on SSRN. Here is the abstract:
The urban misdemeanor process employs a wide variety of informal aggregations. Order maintenance police arrest large numbers of people based on neighborhood and group generalizations. Prosecutors and public defenders negotiate entire classes of minor plea bargains quickly and generically, and the vast majority of defendants plead guilty without scrutiny of their cases. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate weakens and sometimes eliminates individuated scrutiny of defendants and the evidence in their cases; people are largely evaluated, convicted, and punished by category and based on institutional habit. This wholesale process of creating criminal convictions in the aggregate is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant’s personal culpability.
Manuel Possolo has posted Morals Legislation after Lawrence: Can States Criminalize the Sale of Sexual Devices? (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
In Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing sexual relations between individuals of the same sex. The Court held that laws based in nothing more than moral disapproval lack a legitimate basis and are therefore unconstitutional. Despite the Court’s strong language, state and lower federal courts have made contradictory interpretations of Lawrence. In particular, the Fifth and Eleventh Circuits, and several state courts, disagree over the constitutional validity of laws criminalizing the sale of devices used for sexual stimulation. In this Note, I argue that the Fifth Circuit reached the right decision, holding that such laws are unconstitutional after Lawrence. In addition, this Note explores the Court’s evolving approach to morals legislation more generally. Part I examines where Lawrence came from and what exactly it said. Part II analyzes state and lower federal court decisions that disagree over the constitutional validity of laws criminalizing the sale of sexual devices. Part III explores the consequences that Lawrence might have on morals legislation going forward.
Sunday, November 11, 2012
Kate Weisburd (University of California, Berkeley - School of Law - Youth Defender Clinic, East Bay Community Law Center) has posted Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule (60 UCLA L. Rev. 138 (2012)) on SSRN. Here is the abstract:
This Article is the first to examine the routine — but problematic — practice of courts forgiving prosecutors for failing to disclose Brady evidence if the defendant or his lawyer knew or with due diligence could have known about the evidence. This Article begins by explaining the insidious emergence of the “due diligence” rule and catalogs how courts have defined, justified, and applied the rule since Brady v. Maryland. It argues that while the rule is not without intuitive appeal, its burden-shifting framework is troubling and suspect. The defendant due diligence rule is directly contrary to the due process and truth-seeking principles fundamental to Brady, and it ignores basic realities of adversarial criminal practice.
Scott D. Gerber (Ohio Northern University - Pettit College of Law) has posted Introduction to the Tribute to Victor L. Streib: An Ideal Role Model (Ohio North University Law Review, Vol. 38, No. 2, 2012) on SSRN. Here is the abstract:
This article is the Introduction to a law review tribute to Professor Victor L. Streib, one of the leading authorities in the United States on capital punishment and a scholar whose work has been cited 28 times by the U.S. Supreme Court.