Saturday, June 29, 2013
From CNN.com. In part:
In 2005, Lisa Van Poyck began publishing her brother's letters on a blog called "Death Row Diary." Some of the more powerful entries are the last ones, after Van Poyck's death warrant was signed and he learned the date that he would die.
From Rolling Stone. In part:
Most people don't think "cops" when they think about who supports marijuana legalization. Police are, after all, the ones cuffing stoners, and law enforcement groups have a long history of lobbying against marijuana policy reform. Many see this as a major factor in preventing the federal government from recognizing that a historic majority of Americans – 52 percent – favors legalizing weed.
But the landscape is changing fast. Today, a growing number of cops are part of America's "marijuana majority." Members of the non-profit group Law Enforcement Against Prohibition (LEAP) say that loosening our pot policy wouldn't necessarily condone drug use, but control it, while helping cops to achieve their ultimate goal of increasing public safety.
Russell D. Covey (Georgia State University College of Law) has posted Plea-Bargaining Law after Lafler and Frye (Duquesne University Law Review, Vol. 51, 2013) on SSRN. Here is the abstract:
In dissenting opinions in Lafler v. Cooper and Missouri v. Frye – two recent cases dealing with the application of the Sixth Amendment right to counsel to the plea bargaining process – Justice Scalia warned of the coming creation of a whole new field of constitutional criminal procedure: plea bargaining law. This symposium contribution assesses that prediction. It concludes that the Lafler and Frye cases do lay the groundwork for important, albeit incremental, expansion of constitutional protections to criminal defendants in the guilty plea process. In particular, it urges the extension of prosecutorial disclosure obligations to the guilty plea stage and increased restrictions on coercive bargaining practices by prosecutors seeking to induce defendants to plead guilty.
Friday, June 28, 2013
From the New York Times:
In separate appearances, Mayor Michael R. Bloomberg and his police commissioner, Raymond W. Kelly, sought to portray the bills — one aimed at increasing oversight of the Police Department and the other at expanding the ability to sue over racial profiling by officers — as divisive tools that would undermine the police’s efforts to get guns off the streets and continue to lower the murder rate.
The threat of lawsuits, the city fears, could end the department’s broad use of stop-and-frisk measures, the crime-fighting tool most closely associated with the Bloomberg administration.
From Wrongful Convictions Blog, excerpting a newspaper account:
When a San Jose man charged with murdering a Monte Sereno millionaire was suddenly freed last month, prosecutors acknowledged he had an airtight alibi – he was drunk and unconscious at a hospital when the victim was killed in his mansion miles away.
But a mystery remained: How did the DNA of 26-year-old Lukis Anderson – who was so drunk his blood alcohol content was five times the legal limit – end up on the fingernails of slaying victim Raveesh “Ravi” Kumra?
Santa Clara County prosecutors answered that question Wednesday, saying the same two paramedics who had treated Anderson for intoxication at a downtown San Jose liquor store in November had responded to Kumra’s home just hours later.
. . .
Authorities would not discuss whether the paramedics had properly cleaned themselves between the two calls. Citing the unique nature of the two incidents, Smith said, “This is not going to happen on a regular basis.”
Meghan J. Ryan (Southern Methodist University - Dedman School of Law) have posted Juries and the Criminal Constitution (Alabama Law Review, Forthcoming) on SSRN. Here is the abstract:
Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve. Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community. Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions. The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.
Bruce A. Green (Fordham University School of Law) has posted Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused? (Yale Law Journal, Vol. 122) on SSRN. Here is the abstract:
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.
Thursday, June 27, 2013
On September 21, 2011, the controversial execution of
Georgia inmate Troy Davis, who spent twenty years on death row for a crime he
most likely did not commit, revealed the complexity of death penalty trials,
the flaws in America’s justice system, and the rift between those who are for
or against the death penalty. Davis’s execution reignited a long-standing
debate about whether the death penalty is an appropriate form of justice.
In Grave Injustice Richard A. Stack seeks to advance the anti–death penalty argument by examining the cases of individuals who, like Davis, have been executed but are likely innocent.
From the New York Times, reporting on the Zimmerman trial and the police questioning of Trayvon Martin's girlfriend:
SANFORD, Fla. — Rachel Jeantel, the young woman who spoke to Trayvon Martin moments before his death, came under bruising cross-examination again on Thursday as defense lawyers raised questions about the accuracy of her story and the setting in which she was first interviewed by the chief prosecutor in the case.
In her second day on the witness stand, Ms. Jeantel told jurors that the first time she was interviewed under oath by law enforcement authorities was in the presence of a teary-eyed Sybrina Fulton, Mr. Martin’s mother, on April 2, 2012. The interview took place in Ms. Fulton’s living room, with Ms. Fulton sitting by her side, she said. Ms. Fulton also rode in the car with her as she was being taken to the house for the interview, she added.
. . .
Asked by the defense if her desire to be helpful and spare the mother any uncomfortable feelings prompted her to soften her statements, Ms. Jeantel said yes. Ms. Jeantel also said that she only cleaned up the language, including Mr. Martin’s statement describing George Zimmerman as a “creepy-ass cracker.” She used just “creepy” instead.
Mary Fan (University of Washington - School of Law) has posted The Crimmigration Complex (North Carolina Law Review, Vol. 92, No. 1, 2013) on SSRN. Here is the abstract:
The nation seems to be at a tipping point for immigration reform. The two groups most targeted by immigration control law over the last century, Hispanics and Asians, have increased in numbers and political power. Conservative leaders are realizing that hostile policies toward people perceived as foreign are alienating rising demographic groups and immigration reform can be a peace offering. Yet as in the past, the debate over immigration reform continues to be dominated by a focus on alleged "amnesty for lawbreakers" and a fierce divide that doomed reform proposals in 2005, 2006, 2007 and 2010. One side decries rewarding lawbreakers and demands more stringent laws while the other side calls for legalizing millions of undocumented people. Overlooked in the clash are problems in the nation’s swollen crimmigration complex that endanger values important to each side.
Jane Bailey and Mouna Hanna (University of Ottawa - Common Law Section and Independent) have posted The Gendered Dimensions of Sexting: Assessing the Applicability of Canada's Child Pornography Provision (Jane Bailey & Mouna Hanna, "The Gendered Dimensions of Sexting: Assessing the Applicability of Canada’s Child Pornography Provision", 23 Canadian Journal of Women and the Law 406 (2011)) on SSRN. Here is the abstract:
Serious negative short- and long-term consequences can flow from teen and adolescent sexting, particularly where images are distributed beyond their intended initial recipient, and affect both the individual depicted and potentially teens and children collectively. Although some US states have prosecuted teens for child pornography offenses for both one-to-one sexting and for unauthorized redistribution of sexts, there is a dearth of reported sexting prosecutions in Canada. While there are many good reasons for Canadian legal authorities not to prosecute similarly aged teens engaged in consensual one-to-one sexting, Canada’s child pornography provision could technically apply to certain instances of this kind of sexting as well as to unauthorized redistribution to others. The technical applicability of the provision to consensual one-to-one sexts may be unevenly borne by girls who already appear both to be more likely than boys to send a sexualized self-representation and to suffer negative social consequences as a result. Prosecutors should not com- pound the negative social consequences already disproportionately borne by girls by criminalizing them for one-to-one sexts with intimate partners who were naively trusted to maintain their confidentiality. Nor should legal authorities hesitate to pursue unauthorized redistributions by former intimates that do engage the child pornography provision’s underlying objectives.
César Cuauhtémoc García Hernández (Capital University Law School) has posted two articles on SSRN. The first is Criminal Defense after Padilla v. Kentucky (26 Georgetown Immigration Law Review 475 (2012)). Here is the abstract:
The Supreme Court’s decision in Padilla v. Kentucky involves criminal defense attorneys in immigration law as never before. Long the mediators between defendants and the state’s penal authority, these attorneys must now advise their noncitizen clients about the potential immigration pitfalls of a conviction. Just what advice is required, however, depends on the clarity of the immigration consequence. This article unpacks Padilla and the jurisprudential convergence of criminal law and immigration law to develop a theoretical framework based on close readings of the Immigration and Nationality Act’s crime-based grounds of removal. Applying this framework suggests that crimes that likely constitute controlled substances offenses or aggravated felonies require clear, unequivocal advice that conviction will lead to deportation, while offenses that might constitute crimes involving moral turpitude require general advice only.
Wednesday, June 26, 2013
"Second Circuit Suggests That the Plain View Exception Should Be Applied More Narrowly to Digital Searches"
Orin Kerr has this post at The Volokh Conspiracy. In part:
[T]he Second Circuit appears to be saying that there is some sort of heightened standard for when an agent is allowed to conduct a search through a computer. Some of the words suggest at least a subjective test (thus the focus on whether the “search was even directed” at the evidence), which is what the Tenth Circuit adopted in United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999). Other parts of the passage suggest some sort of heightened scrutiny beyond subjective intent. Parts suggest a necessity test: Would a proper search have “necessitated” the opening of a particular file? And other parts of the passage suggest a “possible evidentiary connection” test, which I gather would be ess strict than a necessity test. But both tests would be really murky: What does it mean to say that a particular search query is “necessary”?
Nirej Sekhon (Georgia State University College of Law) has posted Punitive Injunctions (U. Penn. J. L. & Soc. Change, Forthcoming) on SSRN. Here is the abstract:
In theory, courts are only supposed to incarcerate an individual after having provided her with the host of procedural protections required by constitutional criminal procedure – appointed counsel and proof beyond a reasonable doubt to name just two. In practice however, individuals are routinely incarcerated for violating injunctions to which criminal procedure’s protections do not apply. At any given time, millions are subject to such injunctions and hundreds of thousands are in jail or prison for having violated one. Child support orders and probation orders are the most common examples of what this article terms “punitive injunctions.” Just last term, in Turner v. Rogers, the Supreme Court once again concluded that constitutional criminal procedure does not apply to the enforcement of such injunctions. This article argues that courts have inordinately used punitive injunctions against the poor and socially marginal. Punitive injunctions expand the pool of individuals who may be incarcerated and extend the time any particular individual is subject to custodial supervision. Contrary to official accounts, punitive injunctions do not meaningfully advance remedial or rehabilitative purposes. Rather, their widespread use demonstrates that the United States has unjustifiably taken a punitive course in managing poverty. Extending constitutional criminal procedure to the enforcement of punitive injunctions would be better than the status quo. But it would only be marginally better. For that reason, this article proposes farther-reaching reforms that would limit courts’ power to impose such injunctions in the first place.
Owen D. Jones (Vanderbilt University - Law School & Dept. of Biological Sciences) has posted Seven Ways Neuroscience Aids Law (Neurosciences and the Human Person: New Perspectives on Human Activities (A. Battro, S. Dehaene & W. Singer, eds.) Scripta Varia 121, Pontifical Academy of Sciences, Vatican City, 2013, Forthcoming) on SSRN. Here is the abstract:
Rapid advances in neuroscience have raised hopes in law, perhaps inevitably, that new techniques for revealing brain function may help to answer perennial questions about the sources, limits, and implications of human behavior, mental states, and psychology. As a consequence, lawyers have sharply increased proffers of neuroscientific evidence in both civil and criminal litigation, and have also invoked neuroscience as relevant to many doctrinal and policy reforms. These new developments make it essential for just legal systems to evaluate and separate legitimate from illegitimate uses of neuroscience. As part of that effort, this forthcoming essay identifies and illustrates seven distinct contexts in which neuroscience – skeptically evaluated but also carefully understood – can be useful to law. The essay is based on a talk delivered at The Vatican, Pontifical Academy of Sciences, November 2012.
Colin Miller (University of South Carolina School of Law) has posted OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence on SSRN. Here is the abstract:
In 1916, the Supreme Judicial Court of Massachusetts addressed a novel question in Massie v. Barker: How does the standard for negligence previously applied to walkers apply to drivers? For the court, the answer was clear: “The law as to drivers of motor vehicles is not different from that which governs other persons. The standard required is that of the reasonably prudent person under all the circumstances.”
In its 2012 opinion in United States v. Metter, the Eastern District of New York also addressed a question of first impression: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?
Many advances in technology have forced courts to reconsider existing constitutional tests and standards given the brave new digital world in which we live. Other technological advances have not caused such legal retrofitting as courts have found that existing tests and standards can adequately accommodate some new innovations. This article argues that the problem confronted by the Metter court falls into this second category.
Tom Ginsburg , Jonathan S. Masur and Richard H. McAdams (University of Chicago Law School , University of Chicago - Law School and University of Chicago Law School) have posted Libertarian Paternalism, Path Dependence, and Temporary Law (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
The recent wave of behavioral economics has led some theorists to advocate the possibility of “libertarian paternalism,” in which regulators designing institutions permit significant individual choice but nonetheless use default rules to “nudge” cognitively biased individuals toward particular salutary choices. In this article, we add the possibility of a different kind of nudge: temporary law. Temporary law is less intrusive than permanent regulation, and is particularly attractive in situations in which we believe that path dependence has produced the status quo. We illustrate the argument with the example of smoking bans, and provide an empirical case study of an actual temporary smoking ban in Champaign, Illinois.
Criminal sanctions are typically inflicted by the state and by the state alone. This chapter investigates (by using tools of political philosophy) the normative rationales for the exclusive control of the state over the infliction of criminal sanctions and, further, it explores whether the state has not only an exclusive right to punish but also a duty to do so.
From the L.A. Times:
The governor sent the Legislature a request for $450 million over the next two years to lease up to 4,100 beds in county jails and private prisons and to continue shipping 8,500 inmates to other states.
He also proposes allowing inmates to earn more credit for time served by working at firefighting camps or completing classes. And he would allow more prisoners to qualify for medical parole or elder release.