Thursday, October 31, 2013
This article in The New York Times includes a useful overview of various state reforms. In part:
This year, Texas passed a bill introduced by Mr. Stickland that requires warrants for email searches, while Oklahoma enacted a law meant to protect the privacy of student data. At least three states proposed measures to regulate who inherits digital data, including Facebook passwords, when a user dies.
Some of the bills extend to surveillance beyond the web. Eight states, for example, have passed laws this year limiting the use of drones, according to the American Civil Liberties Union, which has advocated such privacy laws. In Florida, a lawmaker has drafted a bill that would prohibit schools from collecting biometric data to verify who gets free lunches and who gets off at which bus stop. Vermont has limited the use of data collected by license plate readers, which are used mostly by police to record images of license plates.
James G. Stewart (University of British Columbia (UBC), Faculty of Law) has posted Complicity (Oxford Criminal Law Handbook, Markus Dubber and Tatjana Hörnle, eds., Oxford University Press, 2014) on SSRN. Here is the abstract:
Complicity is responsibility for helping. This essay provides a comparative overview of the criminal law and theory pertaining to complicity. Instead of taking a strong prescriptive position on the best way to construct accomplice liability, it charts a series of recurrent normative problems in this area and points to various solutions these problems have generated in practice. The essay begins by considering structural questions that inform the shape accomplice liability is given in different criminal systems, then discusses the conduct required to establish accomplice liability, before plotting the various static and dynamic mental elements that are frequently allocated to the concept. Overall, the essay suggests that a comparative approach is very helpful in shedding light on blind spots in various schools of thought about complicity, including whether it deserves an autonomous existence separate from perpetration. I conclude that the subject deserves our ongoing intellectual engagement, since it goes to the heart of our attempts to live decently, in this our very imperfect world.
From The New York Times:
A federal appeals court on Thursday halted a sweeping set of changes to the New York Police Department’s policy of stopping and frisking people on the street, and, in strikingly personal terms, criticized the trial judge’s conduct in the litigation and removed her from the case.
The United States Court of Appeals for the Second Circuit ruled that the judge, Shira A. Scheindlin, “ran afoul” of the judiciary’s code of conduct by compromising the “appearance of impartiality surrounding this litigation.” The panel criticized how she had steered the lawsuit to her courtroom when it was filed in early 2008.
Jonathan Steven Simon (University of California, Berkeley, Boalt Hall, School of Law) has posted The Return of the Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown v. Plata (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 48, 2013) on SSRN. Here is the abstract:
Forty years after "the medical model" — as the rehabilitative-oriented penology that dominated American correctional systems from World War II until the 1970s was widely known — began to be abandoned, Brown v. Plata suggests the imminent return of medicine and the problem of disease to our public imagination of the prison and our constitutional understanding of humane punishment. With its shocking portraits of prisoners afflicted with complex chronic mental and physical illnesses largely abandoned by the modern state to a chaos more reminiscent of medieval jails than modern prisons, Plata depicts a correctional system that has drifted far indeed from the old correctional medical model with its aspiration to scientifically tested penal treatments. But in Plata’s mandate that California significantly reduce its prison population in order to implement sweeping reforms in its delivery of health care, along with its exposure of the deep hold that chronic illness (both mental and physical) has on prison populations, we can forecast the emergence of a new medical model.
Wednesday, October 30, 2013
The Post-Dispatch examination found several recurring problems:
- Police failed to verify the identity of people they arrested, especially those who provided someone else’s name. In almost every wrongful arrest found, police and other officials overlooked a fingerprint report warning that they either had the wrong person or someone who used an alias.
- The protests of those wrongly arrested often were ignored.
- Officials failed to differentiate between the people who gave false names and the people who suffered for it.
- Authorities downplayed the cases where their own mistake caused a wrongful arrest.
- Officials failed to correct errors in records, setting up repeated wrongful arrests and leaving authorities unsure of who they were holding or who committed which past crimes.
Andrea L. Roth (UC Berkeley School of Law) has posted Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In Maryland v. King, the Supreme Court held that a Maryland statute authorizing forced DNA sampling from those arrested for certain serious felonies, for inclusion in Maryland’s offender DNA database, did not violate the Fourth Amendment. At oral argument, Justice Alito declared that King was “perhaps the most important criminal procedure case that this Court has heard in decades.” That statement, while perhaps dramatic, reflects how the DNA revolution has transformed crime solving. We are flooded daily with media reports about unresolved cases cracked by a “cold hit” between DNA from a crime scene and a convicted felon’s DNA database profile. Maryland’s law, which adds the DNA profiles of arrestees of serious crimes to the convicted felon profiles already in the state offender database, is squarely a part of this crime-solving frenzy. One might be forgiven, then, for predicting that an opinion upholding that law would be an unapologetic paean to the crime-solving virtues of DNA databases. Instead, the majority reconceptualizes the law as deploying DNA typing as a “routine booking procedure,” and focuses exclusively on the state’s interest in confirming arrestees’ identities and determining arrestees’ criminal history before making bail decisions.
Joanna Rosenberg has posted A Game-Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so-called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.
Tuesday, October 29, 2013
From The New York Times:
In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.
. . .
It was in 1993 that Colorado passed its laws giving prosecutors broad authority to charge young offenders as adults. Ms. Dvorchak said the system became little more than a “plea mill,” with juveniles represented by lawyers who worked chiefly with adult defendants, and who urged many of them to accept plea bargains. “No one had any independent review of whether that was appropriate for the child,” she said. Juveniles who lost at trial faced mandatory sentencing guidelines and felony convictions that could ruin their career prospects.
Ms. Dvorchak’s initial attempts to change the system failed. Legislators, she found, had been convinced by prosecutors that the minors they chose to try as adults were the worst offenders — “serial killers and rapists.” Her group produced a report that showed that 85 percent of the 1,800 cases over a 10-year period involved middle- to low-level felonies like robbery, assault and burglary; only 15 percent involved homicides and 5 percent first-degree murder.
Paul H. Robinson (University of Pennsylvania Law School) has posted An Overview of the Effect of Mental Illness Under U.S. Criminal Law on SSRN. Here is the abstract:
This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness as a murder mitigation, mitigating to a lesser form of murder or to manslaughter.
Dash DeJarnatt has posted Criminal Records Create a Second-Class Citizenry: Changing the Way Adult Convictions are Vacated in Washington State (Seattle Journal for Social Justice, Forthcoming) on SSRN. Here is the abstract:
This article principally focuses on the ability of a convicted person to remove or “vacate” his adult criminal records from non-Court entities in Washington State. Ultimately, Washington should remove the limit currently prohibiting a record holder from vacating more than one misdemeanor in his or her lifetime. A convicted person in Washington State is theoretically allowed to vacate an unlimited number of felonies in his or her lifetime. In contrast, he or she may not vacate a misdemeanor if any other conviction, misdemeanor or felony, has been vacated in his or her lifetime. I will posit that, for the purposes of vacating criminal records in Washington, at minimum, misdemeanors should generally be treated the same as felonies by allowing a convicted person to theoretically be able to vacate an unlimited number of misdemeanors. Employment, housing, and public safety factors, among others, tend to favor this prescription.
Brandon L. Garrett (University of Virginia School of Law) has posted Remaining Silent after Salinas (University of Chicago Law Review, Vol. 80, 2013) on SSRN. Here is the abstract:
In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review's online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions.
Monday, October 28, 2013
Federal law enforcement agents are required to write interview reports of the witness interviews that they conduct. The most common report is the FBI 302. Prosecutors read and rely upon these reports in conducting their investigations. These reports are often handed over to the defense as potential Jencks material (witness statements, usually of a testifying case agent) orBrady/Giglio material (statements containing exculpatory or impeachment information). The vast majority of such reports are records of a particular interview at a particular place and time.
But a composite interview report purports to document several interviews occurring over an extended time period. A key witness might be interviewed six times during the course of a year. The composite interview report memorializes in one document the information obtained in all of the interviews without revealing what particular statement was made in which distinct interview.
What is wrong with this practice? The accused does not get an accurate picture of the interview subject's story as it evolves, which it inevitably does.
Mugambi Jouet has posted The Exceptional Absence of Human Rights as a Principle in American Law (Pace Law Review, Vol. 34, 2014 Forthcoming) on SSRN. Here is the abstract:
Compared to other Western democracies, references to “human rights” are rare in domestic American law. A survey of landmark Supreme Court cases reveals that both conservative and liberal Justices made no mention of “human rights” when addressing fundamental questions: racial segregation, the death penalty, women’s rights, children’s rights, gay rights, and indefinite detention at Guantanamo. This absence illustrates a broader societal trait. Americans widely consider human rights violations a foreign problem, not a domestic one. By contrast, human rights play a relatively important role as a domestic principle in Europe, Canada, Australia, and New Zealand. Diverse legal, political, social, and historical factors shed light on why human rights have not made headway as a principle in the United States. In addition, the disinclination to frame domestic problems as human rights issues or to consider humanitarian questions per se, helps explain why modern-day America has a comparatively worse human rights record than other Western democracies.
Bryce Clayton Newell (University of Washington - The Information School) has posted Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information (66 Maine Law Review, 2014) on SSRN. Here is the abstract:
As government agencies and law enforcement departments increasingly adopt big-data surveillance technologies as part of their routine investigatory practice, personal information privacy concerns are becoming progressively more palpable. On the other hand, advancing technologies and data-mining potentially offer law enforcement greater ability to detect, investigate, and prosecute criminal activity. These concerns (for personal information privacy and the efficacy of law enforcement) are both very important in contemporary society. In addition, some major police departments have been releasing large databases of information collected by automated license plate recognition (ALPR) systems under state public disclosure laws. These databases also enable recipients to track the prior movements and policing patterns of individual police officers, who are often scanning thousands of plates every shift. In this context, the more recognizable tensions between protecting privacy and ensuring efficacious policing are compounded by a direct tension between privacy interests and freedom of information and citizen oversight – as an important form of freedom-preserving reciprocal surveillance. One recently popular legal response, limiting ALPR data retention, not only protects the privacy of innocent individuals whose plates happen to be scanned, but it also limits the ability of the public to conduct oversight. In addition to this theoretical exploration, this paper also presents findings from an exploratory empirical analysis of a large ALPR dataset, consisting of more than 1.7 million license plate scans between December 2012 and March 2013.
Dennis J. Baker and Lucy Zhao (King's College London - School of Law and University of Sheffield) have posted The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory ((2013) 16(4) New Criminal Law Review 621-656, Buffalo Criminal Law Review, Vol. 16, No. 3, 2013) on SSRN. Here is the abstract:
We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.
Hugh M. Mundy (The John Marshall Law School) has posted It's Not Just for Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential Learning and Improve Advocacy in Law School Non-Capital Criminal Defense Clinics (California Western Law Review, Forthcoming) on SSRN. Here is the abstract:
The number of criminal defendants who are charged and convicted in federal and state courts has risen dramatically over the last two decades. In federal courts, over 100,000 defendants were charged in 2011, nearly doubling the same figure from 1995. Moreover, almost 90-percent of those charged in 2011 entered guilty pleas and faced sentencing. The percentage of guilty pleas in most states is comparable to federal totals. In Pennsylvania and Illinois, for example, the percentage of guilty pleas entered by criminal defendants outpaced federal numbers over a similar time period.
Sunday, October 27, 2013
The series is at the Huffington Post. Here's a part of the most recent installment about a proposal in Utah:
The policy he's pushing is relatively straightforward. Currently, police in Utah may forcibly enter any home, at any time, so long as they've obtained a search warrant. Under Boyack's proposal, officers would be permitted to break into a home only when there is an imminent threat of a violent crime.
The police would no longer be permitted to use battering rams or "dynamic entry" -- the term used to describe forcible entry, the use of flash grenades, and other paramilitary tactics -- to serve drug warrants. In Utah and across the country, drug investigations comprise the overwhelming majority of instances in which such tactics are used.
Last August, the Standard-Examiner ran an editorial in support of Boyack's cause. "Certainly, the use of a battering rams to combat minor offenses is something that should not occur," the paper wrote. "These raids, as conducted now, are too dangerous."
WASHINGTON — The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.
. . .
The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.
The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.
The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008.
Reuters has the story. In part:
Samour noted in his 19-page ruling that other officers on the scene did not recall seeing Grizzle question Holmes.
Grizzle did not mention the smirk in his initial report and only made the claim months later, Samour added.
Even if the smirk encounter did occur, Samour wrote, it was "ambiguous ... (with) no communicative value and must be treated as silence."
From The Atlantic. In part:
Take Florida, for example, and the case of Freddy Lee Hall. Before Atkins, the Florida courts acknowledged that Hall was retarded—that he had been retarded his whole life—but state judges ordered him executed anyway because there was no constitutional rule precluding it. Then, afterAtkins, when there was a constitutional rule precluding the execution of the mentally retarded, Florida ginned up a way to conclude that Hall wasn't mentally retarded after all—or at least not mentally retarded enough to spare him from execution. Here, exalting form over function to the bitter end, is Florida's brief asking the justices in Washington not to hear Hall's appeal.