March 9, 2013
Witmer-Rich on Sneak and Peak Searches
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Rapid Rise of 'Sneak and Peak' Searches, and the Fourth Amendment 'Rule Requiring Notice' on SSRN. Here is the abstract:
This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.”
Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, purporting to merely codify existing practice. A quiet revolution in covert searching has ensued. This article presents the first empirical account of the rapid rise in covert searching: from around 25 delayed notice warrants nationwide in 2002, to over 3,700 in 2011, an increase of over fourteen thousand percent. This increase has not been driven by terrorism cases — the data show 75 percent of delayed notice warrants are used in drug cases, and less than one percent in terrorism cases.
To date, most courts have concluded that delayed notice search warrants raise no Fourth Amendment concerns. This article argues to the contrary. As a matter of Fourth Amendment first principles, covert searches infringe on the privacy and sanctity of the home. Moreover, history shows that delayed notice warrants are a modern procedural innovation, and did not exist at common law in the years leading up to the drafting of the Fourth Amendment in 1791. Instead, covert searches presumptively violate the Fourth Amendment “rule requiring notice” — a principle deeply rooted in the history of search and seizure law, and meant to protect against many of the dangers created by covert, delayed notice searching.
In a companion article, I evaluate the statutory regime currently used to regulate delayed notice search warrants, and explain why that regime is facilitating the rapid expansion of this invasive search technique. I also propose new standards that would render delayed notice search warrants constitutionally reasonable, and which would substantially limit the number of covert searches, while preserving the technique for cases involving sufficiently compelling law enforcement interests.
March 8, 2013
"En Banc Ninth Circuit Holds That Computer Forensic Searches Are Like “Virtual Strip Searches” And Require Reasonable Suspicion At the Border"Orin Kerr has this post at The Volokh Conspiracy. The court "announced a special rule for computer searches: Although a “review of computer files” can occur without reasonable suspicion, the “forensic examination” of a computer at the border requires reasonable suspicion because it is “akin to reading a diary line by line looking for mention of criminal activity—plus looking at everything the writer may have erased.”"
Graham on Overcharging
Kyle Graham (Santa Clara University School of Law) has posted Overcharging (Ohio State Journal of Criminal Law, Vol. 12, No. 1, 2014) on SSRN. Here is the abstract:
The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.
Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.
Petrin on the Theory of the Firm and Criminal Law
Martin Petrin (University of Leicester - School of Law) has posted Reconceptualizing the Theory of the Firm – From Nature to Function on SSRN. Here is the abstract:
What is the “firm”? This Article revisits and explores the theory of the firm and corporate personhood and shows how the century old discourse in this area still firmly shapes how scholars, judges, and legislatures treat legal entities in corporate law, constitutional law, tort law, and criminal law, causing unnecessary complications and flawed outcomes.
Traditionally, the firm is characterized as either a real entity, a fiction, or an aggregate. Conversely, the Article proposes a novel answer to the perennial question as to how to conceptualize the firm. The new approach refocuses the debate away from the nature of the firm and contends that explanations of the firm should focus on its economic and social function, purpose, and effects. It also argues that compared to current approaches, a purely functional approach, as developed in more detail in the Article, provides a more useful analytical framework to ascertain what rights and duties corporations and other legal entities should have.
March 7, 2013
"Fox News: FBI 'secretly spying' on Google users, company reveals"
From FourthAmendment.com. In part:
The FBI used National Security Letters -- a form of surveillance that privacy watchdogs call “frightening and invasive” -- to surreptitiously seek information on Google users, the web giant has just revealed.
Conference at Yale Law School on Biometrics and Location TrackingYou can find video of the conference here. Grits for Breakfast has posts summarizing the panels.
"Senate Panel Approves Modest Bipartisan Gun Bill"
From The New York Times:
WASHINGTON — The Senate Judiciary Committee on Thursday approved a measure that would make the practice of illegally buying a gun for someone else a felony, and increase penalties for the crime.
. . .
Most gun safety experts say they believe that straw-purchasing and background check measures work in tandem. A failure by Congress to pass more than a modified straw-purchasing bill would be a victory for the National Rifle Association, which opposes each measure.
Thaw on the Computer Fraud and Abuse Act
David Thaw (University of Connecticut School of Law) has posted Criminalizing Hacking, Not Dating: Reconstructing the CFAA Intent Requirement (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
This article addresses a growing problem with existing United States Federal law addressing cybercrime. The Computer Fraud and Abuse Act of 1986 (CFAA), which in part revised earlier (limited) legislation on the subject, is the primary Federal "anti-hacking" statute providing both criminal penalties and (limited) rights of private action for certain unauthorized activities using computers and similar information systems. Congress originally intended to address only a narrow range of crimes, but as others have observed the statute's scope expanded dramatically over the past two decades.
The result of this expansion threatens to criminalize wide varieties of activities, common to the ordinary computer and Internet user, that are apparently innocuous in the context of "hacking" but technically constitute unauthorized activities or activities exceeding a users authorized access as a result of terms of service agreements defining access boundaries in lengthy and often legally or technically complex language.
This article responds to the debate in existing scholarship and the problems presented in a technologically-interconnected world by the Circuit split on whether such private contracts may define authorized access for criminal purposes. It identifies the shortcomings and risks in current reform proposals, and suggests an alternate method of addressing overbreath and vagueness problems in the existing statute through legislative reform of the mens rea element of the statute.
Murphy on US v Jones
Erin Murphy (New York University School of Law) has posted Back to the Future: The Curious Case of United States v. Jones (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?
In Jones, the Justices were confronted with just this dilemma. In response, as this Essay will show, roughly half of the Justices followed Justice Scalia into the shelter of originalism. The other half, led by Justice Alito, ventured a bit more boldly into the great unknown, but ultimately punted responsibility to a coordinate branch. Only Justice Sotomayor made a first attempt at tackling the problem, but she wrote alone. Regrettably, none of the opinions offered lasting guidance to lower courts, much less to law enforcement actors. Nevertheless, this essay argues that each is still notable for some aspect of what it conveys. Moreover, it closes by postulating that Jones is most interesting for what it didn’t say — press reports proclaiming "warrant needed for GPS tracking!" notwithstanding.
March 6, 2013
Gross on the Frequency of False Convictions
Samuel R. Gross (University of Michigan Law School) has posted How Many False Convictions are There? How Many Exonerations are There? (Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems, C. R. Huff & M. Killias eds., Routledge, March 2013) on SSRN. Here is the abstract:
The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched.
Joy on Legislation to Enforce Prosecutor's Duty to Disclose Evidence
Peter A. Joy (Washington University in Saint Louis - School of Law) has posted The Criminal Discovery Problem: Is Legislation a Solution? on SSRN. Here is the abstract:
In theory, legislation to enforce a prosecutor’s obligation to disclose exculpatory material to the accused should not be necessary. Although a series of U.S. Supreme Court cases have outlined a prosecutor’s legal obligation to disclose evidence favorable to the accused where the evidence is material either to guilt or punishment, in practice some prosecutors continue to violate the due process rights of defendants by failing to adhere to both their legal and ethical disclosure duties. In recent years, the prosecution, conviction, and ultimate exoneration of U.S. Ted Stevens case is the most publicized example of a federal prosecution marred by violations of prosecutorial discovery obligations. Subsequent to his conviction, an investigation revealed that some prosecutors engaged in systematic concealment of significant exculpatory evidence.
Most commentators agree that part of the discovery problem lies in the “materiality” requirement for disclosure, which the Court has defined as evidence reasonably probable to changes the results of the proceeding. Taken literally, a prosecutor could read this materiality standard to mean that unless the prosecutor believes that the evidence may lead to a not guilty verdict, it is not material. Because the prosecutor is convinced of the accused’s guilt, it is unlikely that she will believe that anything in her files is exculpatory evidence sufficient to undermine confidence in the outcome of the case.
In response to the prosecution of Senator Stevens Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would require a federal prosecutor to disclose all favorable information to the accused. By removing the materiality requirement and requiring the disclosure of favorable information and not just evidence, the proposed law would expand a prosecutor’s legal disclosure obligation and address a major problem with the current disclosure standard.
At a Senate Judiciary Committee hearing considering the proposed legislation, Deputy Attorney General James Cole testified that while what occurred in the prosecution of Senator Stevens was unacceptable it was not indicative of a systemic problem. According to Cole, whatever problem there may be is not a problem about the scope of discovery but rather one of making sure prosecutors understand and comply with their existing discovery obligations. He emphasized several steps that the DOJ was taking to enhance the training, guidance, and supervision of its prosecutors and argued that these steps would be more effective than the proposed legislation. In contrast to Cole’s testimony, commentators, the American Bar Association, a survey of federal judges, and data from exonerations and appeals all support suggest that there is a discovery problem at both the federal and state levels.
Against this backdrop, this Article explores the issue of prosecutorial non-compliance with disclosure obligations from the perspective of whether there is a discovery problem, and, if so, whether federal and state legislation could be a viable solution. This Article analyzes whether, contrary to the DOJ’s position, there is evidence of a discovery problem at the federal and state levels. Next, this Article explores several underlying factors that create conditions that may lead some prosecutors not to comply with current discovery obligations in federal and state jurisdictions. Finally, the Article analyzes whether legislation is a possible solution to the problem.
March 5, 2013
"Federal Judges Consider Alternative Sentencing in Drug Cases"
Some thought it would never happen. Others thought it was inevitable. Regardless, the time is upon us. Federal judges are turning to drug courts and even deferred prosecutions in drug cases, a policy that has met with good success rates in state court, with the agreement of DOJ.
Morrison on Perfecting Criminal Markets
Caren Myers Morrison (Georgia State University - College of Law) has posted Beyond 'Perfection': Can the Insights of Perfecting Criminal Markets Be Put to Practical Use? (Columbia Law Review Sidebar, 2013) on SSRN. Here is the abstract:
David Jaros’s thought-provoking new Article, Perfecting Criminal Markets, sheds light on a heretofore unappreciated effect of our obsession with criminalization: that merely by creating new crimes, lawmakers may inadvertently strengthen existing criminal markets. To support his argument, Jaros adopts the tenets of neoclassical deterrence theory, which assume that criminalizing an activity will deter its occurrence. But the model Jaros employs has its limits. The weakness of a rational choice account of criminal markets is that it relies so heavily on the assumption that prospective criminals will be aware of, and swayed by, criminal laws that might in fact be quite obscure.
In the first Part of this Response, I consider some of the factors, including lack of effective information and risk miscalculation, that might blunt the deterrent value of these laws, and hence their market-enhancing effects. The second Part of the Response explores the normative implications of his argument. Jaros contends that, because the market-boosting effects of criminalization muddy the moral message of the criminal law, this creates an opportunity to reconsider alternative means of harm reduction. Incorporating a public health approach to some of these issues, particularly in the area of vice crimes, might prove far more beneficial than unreflective criminalization.
Overall, Jaros has found a fresh and novel way to show that criminalization can enhance crime. By following the tenets of neoclassical deterrence theory through to their logical conclusion, Jaros demonstrates that, even on its own terms, criminalization as a means of reducing social harm is highly problematic. Our current appetite for criminalization and increasingly harsh penalties has only resulted in record-breaking rates of incarceration, disproportionate impact on people of color, and an unsustainable drain on state and federal budgets. If people begin seriously thinking about the consequences of perfecting criminal markets in the way Jaros describes, then his insights could do some real good.
"UN expert urges US to publish report on Bush-era detention, rendition program"
The story is at Jurist:
The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Ben Emmerson [official profile] called Monday on the US government to publish the Senate Select Committee on Intelligence[official website] report detailing investigations into the Central Intelligence Agency (CIA) [official website] secret detention and interrogation program during the Bush presidency. According to the report [text, PDF] submitted to the UN Human Rights Council, there is evidence of the CIA operating clandestine detention facilities known as "black sites," in a number of countries including Lithuania, Morocco, Poland, Romania and Thailand. In addition, the report claims that the officials of at least 49 other nations allowed their airspace or airports to be used for extraordinary renditions [JURIST news archive] carried out by the CIA.The Special Rapporteur urged those countries accused of allowing CIA "black sites" "to establish (or where applicable, to re-open) effective independent judicial or quasi-judicial inquiries into credible allegations that secret CIA "black sites" were established on their territories." In January 2009 the Obama administration passed an executive order prohibiting the use of secret detention, torture and other forms of prisoner abuse.
Berry on Criminal Constitutional Avoidance
William W. Berry III (University of Mississippi School of Law) has posted Criminal Constitutional Avoidance on SSRN. Here is the abstract:
Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.
This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases.
Simply put, vague criminal statutes are not inherently ambiguous. Instead of offering a choice between two meanings, they are indefinite, uncertain, and unclear. And, it is not the potential meanings of the vague statute that create constitutional problems; there is only a constitutional problem if there is no ascertainable meaning.
Part I of this article explores the justifications for the canon of constitutional avoidance. In Part II, this article describes the Court’s void-for-vagueness doctrine and its use of the avoidance canon to circumvent the vagueness question in Skilling. Part III argues that the use of the avoidance canon in Skilling was improper, and explains why it is not an appropriate vehicle to respond to void-for-vagueness constitutional challenges to federal criminal statutes. Part IV explores the negative theoretical and practical consequences of applying the avoidance canon to potentially vague statutes. Finally, Part V concludes the article by outlining a model for applying the avoidance canon to other constitutional questions involving criminal statutes,
March 4, 2013
"Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights"
The article is summarized at FourthAmendment.com. In part:
Low-income parents seeking federal assistance would be forced to sign away their Fourth Amendment rights under a bill proposed last week by Republican Rep. Stephen Fincher of Tennessee.
The Welfare Integrity Act of 2013 would require applicants for and recipients of assistance under the Temporary Assistance for Needy Families (TANF) program to sign a waiver of their constitutional rights and submit to random drug tests. The program helps poor families with children pay for living expenses such as rent, heat, utilities and personal care items.
"12 Charged With Manslaughter in Florida Hazing Death"
From the New York Times:
ORLANDO, Fla. (AP) — Twelve former Florida A&M University band members were charged Monday with manslaughter in the 2011 hazing death of a drum major.
. . .
Prosecutors had originally filed felony hazing charges that only required that they prove the defendants took part in a hazing that resulted in death. It didn't require them to prove who struck the fatal blows.
Cohen on Circumvention Tourism
I. Glenn Cohen (Harvard Law School) has posted Chapter 10: Medical Outlaws or Medical Refugees? An Examination of Circumvention Tourism (Risks and Challenges in Medical Tourism: Understanding the Global Market for Health Services Controversies in the Exploding Industry of Global Medicine, Chapter 10, Jill Hodges, ed., Praeger, 2012) on SSRN. Here is the abstract:
While many medical tourists are motivated to travel by the price of service, the ability to jump queues, or greater expertise of a foreign provider, there is also a very different kind of medical tourism afoot in the world today that I call “circumvention tourism” — travel to access services that are legal in the patient's destination country but illegal in the patient’s home country, thereby circumventing a domestic prohibition on the service. Examples include travel to obtain abortion, assisted suicide, reproductive technologies, and female genital cutting. This chapter in a book on medical tourism examines legal and ethical issues relating to "circumvention tourism," especially the issue of whether a patient's home country can and should apply its existing domestic prohibition extraterritorially.
These issues are dealt with in more depth in my article Circumvention Tourism, 97 Cornell L. Rev. 1309 (2012), available at http://ssrn.com/abstract=1965504.
Pozen on Unlawful Disclosures of Government Information
David Pozen (Columbia Law School) has posted The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.
This article challenges the standard account of this disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of institutional failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret-keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.
McKoski on Prospective Perjury by a Criminal Defendant
Ray McKoski has posted Prospective Perjury by a Criminal Defendant: It's All about the Lawyer (Arizona State Law Journal, Vol. 44, 2012) on SSRN. Here is the abstract:
This article offers a new approach to the ethical dilemma facing an attorney representing a criminal defendant who insists on testifying falsely. The article begins by reviewing the development of the professional obligations of candor to the court and loyalty to the client from the first English statute regulating lawyers to the current ABA Model Rules of Professional Conduct. This review demonstrates that for 700 years the duty of candor has trumped the duty of loyalty in cases of prospective client perjury. Second, the article debunks the myth that a rule defining counsel’s response to a client’s planned perjury is necessary to prevent false evidence from infecting the trial. Instead, it is demonstrated that the true purpose of a rule requiring remedial measures by an attorney facing client perjury is to protect the lawyer, not the legal system. Third, the flawed traditional approaches to the perjury dilemma are examined. Lastly, a new proposed “supplemental counsel” approach to the prospective perjury problem is shown to accommodate the interests of the legal system, the legal profession, and the criminal defendant far better than any current approach.