Saturday, June 22, 2013
The Oregon Supreme Court [official website] ruled [opinion, PDF] Thursday that a death row inmate cannot reject a reprieve by the governor. Oregon Governor John Kitzhaber [official website] in 2011 issued a temporary reprieve [JURIST report] for death row inmate Gary Haugen, just before his scheduled execution, and called for an end to the state's death penalty [JURIST news archive]. Haugen, who had been convicted of two murders, then tried to seek his own death warrant, arguing that he did not want to live with the uncertainty of the indefinite reprieve. A lower court ruled for Haugen, but the Supreme Court rejected his arguments, finding that the governor's reprieve is valid and that it does not constitute cruel and unusual punishment under the Eighth Amendment.
From the Washington Post:
Federal prosecutors have filed a criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.
Snowden was charged with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” according to the complaint. The last two charges were brought under the 1917 Espionage Act.
Miriam H. Baer (Brooklyn Law School) has posted Temporal Inconsistency and the Regulation of Corporate Misconduct (Virginia Journal of Criminal Law (2013), Forthcoming) on SSRN. Here is the abstract:
This is a comment written for the Virginia Journal of Criminal Law responding to Professor Manuel Utset’s work on temporal inconsistency and its application to corporate misconduct.
Over the years, Professor Utset has done us a great service by highlighting and explaining the hyperbolic discounting literature, and using it to better understand corporate failures and the laws and regulations that lawmakers have enacted in response to those failures.
In this Comment, I suggest three related choices that lawmakers and regulators must confront as they attempt to incorporate temporal inconsistency into their regulatory agenda.
Dhammika Dharmapala , Nuno M. Garoupa and Richard H. McAdams (University of Illinois College of Law , University of Illinois College of Law and University of Chicago Law School) have posted Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure on SSRN. Here is the abstract:
Criminal law enforcement depends on the actions of public agents such as police officers, but there is no standard economic model of police as public agents. We seek to remedy this deficiency by offering an agency model of police behavior. We begin by explaining why the standard contracting solutions are unlikely to work. Instead, we follow recent literature exploring intrinsic motivation and posit heterogeneity in the preferences of potential agents. Drawing on experimental evidence on punishment preferences (so-called “altruistic punishment”), in which subjects reveal a preference for punishing wrongdoers, our model identifies circumstances in which “punitive” individuals (with stronger-than-average punishment preferences) will self-select into law enforcement jobs that offer the opportunity to punish (or facilitate the punishment of) wrongdoers. Such “punitive” agents will accept a lower salary and be less likely to shirk, but create agency costs associated with their excessive zeal (relative to the public’s preferences) in searching, seizing, and punishing suspects. Under plausible assumptions, the public chooses to hire punitive police agents, while submitting them to monitoring by other agents (such as the judiciary) with average punishment preferences. Thus, two kinds of agents are better than one. We explore various implications for police shirking, corruption, and the content of the criminal procedure rights that the judiciary enforces.
G. Mitu Gulati , Jack Knight and David F. Levi (Duke University - School of Law , Duke University and Duke University - School of Law) have posted In the Absence of Scrutiny: Narratives of Probable Cause on SSRN. Here is the abstract:
This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the “good faith” exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens.
Friday, June 21, 2013
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Constitutional Culpability: Questioning the New Exclusionary Rules (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.
Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the law enforcement officer – conduct that if not sufficiently “culpable” does not require exclusion.
Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Closing the Widening Net: The Rights of Juveniles at Intake (46 Texas Tech Law Review (2013)) on SSRN. Here is the abstract:
Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.
Hope Metcalf and Judith Resnik (Yale Law School and Yale University - Law School) have posted Gideon at Guantanamo: Democratic and Despotic Detention (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
One measure of Gideon v. Wainwright is that it made the U.S. government‘s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over decades to insist that, unlike totalitarian regimes, the United States has constitutional obligations to equip individuals with third parties — lawyers — to inhibit (if not to prevent) coercion. Both Gideon and Miranda recognize the relationship between the dignity of individuals in their encounter with the state and the legitimacy of state processes. Both decisions locate enforcement authority in courts. Both rely on lawyers, deployed as witnesses to interrogation and as advocates, and both impose obligations that, when necessary, governments subsidize lawyers.
F. Thomas Schornhorst (Indiana University) has posted Litigating Crawford v. Washington: 'Testimonial' Hearsay, and the Right to Confrontation and Cross Examination on SSRN. Here is the abstract:
Four years ago Supreme Court Justice Antonin Scalia's “original intention of the framers” approach to constitutional interpretation gained a major foothold with an emerging majority of the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). This, of course, is the case that altered the methodology for judicial interpretation of the relationship of the Confrontation Clause of the Sixth Amendment and a variety of rules of evidence that permit the receipt of hearsay in criminal cases.
Thursday, June 20, 2013
The post is at Crime & Consequences. In part:
The Associated Press misreports the event thusly:
Gov. Pat McCrory has signed into law a repeal of a landmark act that allowed convicted murderers in North Carolina to reduce sentences to life in prison if they could prove racial bias.In reality, the law allowed attacks on death sentences with statistics that proved very little about bias and nothing whatever about the defendant's case.
From the New York Times. In part:
The woman who believed “the more guns the better” was out. So was the bearded guitarist who claimed to have no opinion on the case — until the judge confronted him for writing a Facebook posting suggesting the local police department was not just corrupt, but in need of an enema.
. . .
[U]nusual are the attributes that the prosecution and defense are likely to be seeking in jurors. Conservative-leaning jurors who favor law enforcement are generally what prosecutors seek, while the defense often looks for those who skew liberal. But not in this case, which is testing Mr. Zimmerman’s claims of self-defense and spotlighting Florida’s Stand Your Ground law. That law has not been invoked in this case, but was cited by the Sanford police as the reason officers did not initially arrest Mr. Zimmerman.
William Funk (Lewis & Clark Law School) has posted Deadly Drones, Due Process, and the Fourth Amendment (William & Mary Bill of Rights, Vol. 22) on SSRN. Here is the abstract:
The use of drones to target individuals, especially American citizens, outside of the immediate zone of hostilities has been severely questioned in the media with assertions that it constitutes the executive acting as the prosecutor, the judge, the jury and the executioner without any of the protections afforded by constitutional law. A leaked “white paper” from the administration is the only unclassified legal justification for this practice. The “white paper” raises a number of legal issues. Among these are whether the President has the authority to order such killings, whether various criminal statutes or the executive order banning assassination would prohibit such operations, and whether the operations would violate international law. This article, however, only addresses the questions: whether, and if so how, the Due Process Clause of the Fifth Amendment and the Fourth Amendment would constrain these operations.
Larry Alexander (University of San Diego School of Law) has posted Recipe for a Theory of Self-Defense: The Ingredients, and Some Cooking Suggestions (The Ethics of Self-Defense (OUP); C. Loons and M. Weber, eds. Bowling Green State University (2014)) on SSRN. Here is the abstract:
Self-defense and its close relative, defense of others, are uses of force against another person — Attacker — for the purpose of preventing Attacker from harming another’s person or property. These uses of force are called self-defense (SD) when employed by the one whose person or property is threatened (the Victim, or V); they are called defense of others (DO) when employed by a non-threatened third party who is not in V’s family (TP).
SD and DO are preemptive uses of force because they occur before the acts they are intended to prevent occur. They thus belong to the family of preemptive measures that harm people or restrict their liberty in order to prevent them from harming others in the future. Examples of preemptive measures other than SD and DO include preventive detention, restraining orders, gun control laws, and similar laws making possession of certain items illegal for fear of their misuse.
Because SD and DO are preemptive, they operate in the realm of epistemic uncertainty. V and TP can never be certain the feared acts will occur. They can never be certain that if the acts occur, what their consequences will be. They can never be certain what alternative to SD and DO for averting the feared harms exist. And they can never be certain what the status of the presumed Attacker is — that is, whether the presumed Attacker is culpable or nonculpable. I will have had a lot more to say about these epistemic points in due course.
David R. Katner (Tulane University - Law School) has posted In Opposition to the Mandatory Registration of Juvenile Sexual Offenders (3 Journal of Race, Gender & Poverty 21 (2012)) on SSRN. Here is the abstract:
The mandatory registration of juvenile sex offenders incorrectly assumes that the same dynamics of adult sex offenders apply to juveniles. In doing so, this group of juveniles is labeled and placed in a category that will ultimately hinder their development, rather than contribute to their rehabilitation. Accordingly, this mandated registration will have a negative effect on these individuals along with society as a whole based upon how they are perceived by others in the community and their lack of ability to contribute to the greater good.
F. Andrew Hessick III and Carissa Byrne Hessick (Arizona State University - Sandra Day O'Connor College of Law and Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Non-Redelegation Doctrine (William & Mary Law Review, Vol. 55, No. 1, (Forthcoming 2013)) on SSRN. Here is the abstract:
In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.
This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so. The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns. Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences. Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.
Wednesday, June 19, 2013
"With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practices"
Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates.
From The New York Times:
But if such internal investigations are time-tested, their outcomes are also predictable: from 1993 to early 2011, F.B.I. agents fatally shot about 70 “subjects” and wounded about 80 others — and every one of those episodes was deemed justified, according to interviews and internal F.B.I. records obtained by The New York Times through a Freedom of Information Act lawsuit.
The last two years have followed the same pattern: an F.B.I. spokesman said that since 2011, there had been no findings of improper intentional shootings.
. . .
Critics say the fact that for at least two decades no agent has been disciplined for any instance of deliberately shooting someone raises questions about the credibility of the bureau’s internal investigations. Samuel Walker, a professor of criminal justice at the University of Nebraska Omaha who studies internal law enforcement investigations, called the bureau’s conclusions about cases of improper shootings “suspiciously low.”
Current and former F.B.I. officials defended the bureau’s handling of shootings, arguing that the scant findings of improper behavior were attributable to several factors. Agents tend to be older, more experienced and better trained than city police officers. And they generally are involved only in planned operations and tend to go in with “overwhelming presence,” minimizing the chaos that can lead to shooting the wrong people, said Tim Murphy, a former deputy director of the F.B.I. who conducted some investigations of shootings over his 23-year career.
Jennifer Mnookin (University of California, Los Angeles (UCLA) - School of Law) has posted Semi-Legibility and Visual Evidence: An Initial Exploration (Law, Culture and the Humanities (May, 2012)) on SSRN. Here is the abstract:
This essay names and examines an often-used but little discussed category of legal evidence: semi-legible visual evidence. Semi-legible visual evidence can take many forms, including blurry photographs; low-quality films shot by police dashboard cameras, surveillance cameras, or iphones; fingerprints; x-rays; MRIs and PET scans, to name just a few of the many types of visual display introduced in court that are only partly decipherable to a (lay) viewer. Semi-legible images cannot be said simply to speak for themselves; they must be made to speak, through the exertion of effort, expertise, or both. I argue that thinking about these different kinds of visual evidence together has the effect, not only of highlighting semi-legibility as a meaningful evidentiary category, but also of suggesting important but often-unnoticed connections between expertise and visual legibility. In addition, this essay offers a basic taxonomy of semi-legible visual evidence, examining, in turn, blurry images; interpretively ambiguous images; "‘jigsaw’" images, in which an important piece is missing; images semi-legible to laypeople but readily decipherable by those with relevant expertise; and images semi-legible even to experts. For each category, I describe its parameters, focus on strategies by which it may be made more (or less) legible, and discuss particular challenges it offers as evidence. This essay thus aims to contribute to our understanding of the complex methods by which we produce, wield, enhance, read and interpret visual evidence in court.
Lauren Salins and Shepard Simpson have posted Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic (Loyola University Chicago Law Journal, Vol. 44, No. 4, 2013) on SSRN. Here is the abstract:
Excessive incarceration is a national problem. Across the country, prisons face dangerous levels of overcrowding, which has led to unconstitutional conditions of confinement and the inability of states to effectively rehabilitate their inmates. Ardent public support of “tough on crime” policies inhibits state legislatures from enacting successful reforms. In turn, states spend large percentages of their budget to sustain failing and ineffective corrections systems. By some estimates, states could save hundreds of millions of dollars annually if they reduced prison populations through proactive reforms, such as early release programs and diversionary tactics. In light of these factors, a consideration of the U.S. Supreme Court’s decision in Brown v. Plata to uphold an unprecedented prisoner release order is both timely and necessary as the case approaches its two-year benchmark.
This Note argues that the Court’s holding in Brown did not overstep the judicial boundaries imposed by the Prisoner Litigation Reform Act (PLRA), but rather was a step in the right direction toward acknowledging and remedying constitutional violations occurring in California’s severely overcrowded prison system.