November 17, 2012
Taylor & Hallam on the UNODC World Drug Report
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.
November 16, 2012
"Trying to Keep Your E-Mails Secret When the C.I.A. Chief Couldn’t"
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.
Textor on the Public-Safety Exception to Miranda
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.
One controversial aspect of the Liddell case is whether broadening the exception created by the plurality opinion of Quarles violates Miranda’s constitutional requirements. Recently noted by the District of New Jersey case of United States v. Fautz, the 8th Circuit is the only federal circuit to expressly hold such an exception exists. An additional aspect of this case is whether the circuit split developing among the federal circuits makes this issue likely to be addressed by the Supreme Court. The current split involves the 8th, 9th, and 1st Circuits taking a broad approach to the public safety exception, while the 3d, 4th and 5th Circuits take a narrow approach.
This Article provides an analysis of the issues in Liddell and concludes the 8th Circuit arrived at a constitutionally permissible holding. The Supreme Court should follow the 8th Circuit broad approach to the public safety exception. Three points support the broad approach to the public safety exception: the necessity for public safety; the long-standing precedent set forth by Quarles over 28 years ago; and the rationale for police action during a kidnap scenario.
The Supreme Court should adopt the 8th Circuit’s broad approach to the public safety exception. Specifically, the Court should hold the Miranda requirement does not apply when there is a risk of police officers being injured from the mishandling of unknown firearms or drug paraphernalia, and the risk provides a sufficient public safety basis to ask a suspect who has been arrested and secured whether there are weapons or contraband in a car or apartment the police are about to search.
Gilad on Unaccompanied Minors in Witness Protection Programs
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.
November 15, 2012
Kaye on Uniqueness Claims in Forensic Science Testimony
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.
Dolovich on Exclusion and Control in the Carceral State
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.
Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable.
Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices — the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender’s free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human — a process referred to as “making monsters” — and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction, all people who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as “incorrigible” may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.
"2013 Law & Society Association CrimProf Shadow Conference"Douglas Berman has details about this conference, taking place from May 30 to June 2 in Boston, at Sentencing Law and Policy.
"BP to Admit Crimes and Pay $4.5 Billion in Gulf Settlement"
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.
Rushin on the Regulation of Private Police
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.
November 14, 2012
Boudin, Stutz & Lippman on Prison Visitation Policies
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.
Our paper and data set allow for state-by-state comparison across a group of common categories of visitation-related policies. In addition, we identify commonalities and variation in the categories we tracked, and also documented outlier policies revealed in the course of our research. We worked with the Association of State Correctional Administrators (ASCA) to track down difficult-to-find policy documents, and received written feedback from nearly all fifty state departments of corrections to ensure accuracy.
The paper is organized as follows. Part I describes the methodology we employed and considers its potential limitations. Part II provides our key substantive findings, presents a few highlights of the data, and discusses the basic commonalities of the policies, while noting the divergence in other key areas. Part III provides a detailed description of two sub-policy areas within visitation regulations. Here we analyze in more detail the range of approaches that states take to two contrasting forms of visitation: video visitation and overnight family (“conjugal”) visitation. Part IV outlines possible next steps for research on this topic.
Argento on Regulating "Dual Purpose" Tools
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.The example of medical marijuana illustrates how legislative reform allowing limited access would be superior to the current comprehensive ban. Finally, given the improbability of immediate legislative reform, the author proposes a short term, partial solution in the form of a judicial reinterpretation of § 1201.
November 13, 2012
"How California’s Three-Strikes Law Struck Out"
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’.
Gilad & Gat on Prison Nurseries and Children of Incarcerated Women
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.
"Petraeus Case Raises Fears About Privacy in Digital Era"
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.
Starr & Rehavi on Booker's Effects on Racial Disparity
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.
This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature. We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages. We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges. We address the problem of disentangling trends using a rigorous method called regression discontinuity design. We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker. Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.
Clash over granting of stay in death caseJustice Sotomayor's defense of the stay, joined by Justice Ginsburg, is here. Justice Scalia's criticism, joined by Justices Thomas and Alito, is here.
November 12, 2012
Natapoff on Aggregation and Urban Misdemeanors
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.
This Article traces the influence of different sorts of aggregation through each step of the urban misdemeanor process, demonstrating how that process has effectively abandoned the individuated model of guilt and lost many of the essential characteristics of a “criminal” system of legal judgment. It then explores civil scholarship’s insights into the substantive power that informal aggregations can exert over liability rules and outcomes, in particular how mass settlement scenarios can effectively create no fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands should be reconceptualized as not entirely criminal in nature.
Possolo on Morals Legislation after Lawrence
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.
November 11, 2012
Weisburd on Brady and the Defendant Due Diligence rule
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.This Article exposes and refutes several misperceptions upon which the rule rests: (1) that prosecutors can always accurately evaluate what evidence is sufficiently available through due diligence so as to justify nondisclosure; (2) that the exculpatory facts contained in a record, and in theory available to the defense, are always equal in evidentiary value to the record itself; (3) that defendants can always accurately identify legally relevant facts in their cases and can communicate effectively with their lawyers; (4) that defense lawyers have the same resources as prosecutors and, therefore, have the same ability to conduct diligent investigations; and (5) that any problems with the defendant due diligence rule can be addressed in postconviction proceedings through claims of ineffective assistance of counsel. This Article concludes by calling for elimination of the rule and the restoration of Brady’s intended framework.
Gerber on Streib
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.