Saturday, July 13, 2013
From the New York Times:
LOS ANGELES — Nearly 29,000 inmates in California state prisons refused meals for the third day Wednesday during a protest of prison conditions and rules. The protest extended to two-thirds of the 33 prisons across the state and all 4 private out-of-state facilities where California sends inmates, corrections officials said.
. . .
The protest is centered on the state’s aggressive solitary confinement practices, but it appeared to have attracted support from many prisoners with their own demands for changes in prison conditions.
Markus D. Dubber (University of Toronto - Faculty of Law) has posted Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law on SSRN. Here is the abstract:
A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular.
Friday, July 12, 2013
The secret court that hears government requests for spying on Americans' communications is a durable check against government overreach because it’s made up of esteemed, independent federal court judges and the lawyers representing the nation’s intelligence apparatus are really good at their jobs. At least that’s the take of a large number of government officials who support sweeping surveillance programs, which the secret has approved.
Last year the Foreign Intelligence Surveillance Court (FISA Court) did not deny or reject the 1,789 government FISA applications. Apparently 40 of applications were modified, but since the FISA Court’s actions are secret, we don’t know in what why they were altered. In 2010, Salon reported, “there were 1,511 applications, of which five were withdrawn and 14 modified.”
"Suspicionless patdown of school prom attendees violated the Fourth Amendment, but qualified immunity applies"
Krista A. Dolan has posted The Section 2254 Trinity: How the Supreme Court's Decisions in Richter, Pinholster, and Greene Have Interpreted Federal Review Into Near Nonexistence (Criminal Law Brief (American University), 2013) on SSRN. Here is the abstract:
This paper analyzes the impact that the Supreme Court’s recent decisions in Harrington v. Richter, Cullen v. Pinholster, and Greene v. Fisher have had on federal review of state prisoners’ petitions for habeas corpus under Section 2254(d)(1) of the Anti-Terrorism and Effective Death Penalty Act. The paper discusses the impact of each case individually, as well as the collective impact on federal review for state prisoners.
Jon Gould , Julia Carrano , Richard A. Leo and Katie Hail-Jares (American University - School of Public Affairs , American University , University of San Francisco - School of Law and American University) have posted Innocent Defendants: Divergent Case Outcomes and What They Teach Us (in Marvin Zalman & Julia L. Carrano, eds., Making Justice: The Innocence Challenge to Criminal Justice Policy and Practice (Routledge / Taylor & Francis Group 2013)) on SSRN. Here is the abstract:
Why are some innocent defendants convicted and spend years in prison before exoneration ("erroneous convictions"), while others are released before trial or are acquitted on the basis of their factual innocence ("near misses")? What factors could have predicted these dramatically divergent outcomes? The authors seek to answer these questions using advanced statistical and comparative social science methodologies. This chapter reports the results from a large scale empirical research project that compares case outcomes following the indictment of 460 factually innocent defendants for a violent felony. Two hundred of these cases ended in a near miss, and the remaining 260 defendants were erroneously convicted. The authors conclude that a number of variables, including the age and criminal history of the defendant, the punitiveness of the state, Brady violations, forensic error, a weak defense and weak prosecution case, a family defense witness, a non-intentional misidentification, and lying by a non-eyewitness, can predict case outcome. Moreover, these individual factors are connected and exacerbated by tunnel vision, which prevents the system from self-correcting once an error is made and leads to general system failure. The authors conclude by suggesting reforms that will allow the legal community to improve its ability to justly adjudicate cases of innocent defendants in the future.
Gregory Shaffer , Nathaniel H. Nesbitt and Spencer Weber Waller (University of Minnesota - Twin Cities - School of Law , University of Minnesota Law School and Loyola University Chicago School of Law) have posted Criminalizing Cartels: A Global Trend? (Draft chapter for 2014 edited volume in process on Global Competition Law) on SSRN. Here is the abstract:
Countries in virtually every region of the world are criminalizing cartel offenses. Many have initiated prosecutions, several have secured convictions, and a few have imposed jail time. Yet outside the United States the enforcement record is hardly uniform, and the debate about cartel criminalization is far from resolved. This situation raises a host of questions. What spurred the trend toward cartel criminalization? Have the changes been driven primarily by criminalization evangelists such as the United States Department of Justice, whether working bilaterally or through transnational networks? Are organic, bottom-up, national processes also at work, suggesting changing moral sensibilities regarding cartel conduct? To what extent have formal legal changes been accompanied by enhanced enforcement? This Chapter tackles these questions through a review of criminalization and enforcement developments in the United States, Europe, and around the world. While the emerging legal landscape of anti-cartel activity is complex and varies significantly by jurisdiction, the clear trend is toward increased criminalization, as well as more robust enforcement, including collaboration among national antitrust authorities through informal transgovernmental networks. The trends, however, are not uniform, and the implementation of formal legal changes is an open question in light of divergent institutional contexts and social attitudes regarding cartels.
Thursday, July 11, 2013
From The New York Times:
BOSTON — Boston police said Thursday that they had linked DNA from the man believed to have been the Boston Strangler to seminal fluid found in the home of a 19-year-old woman who has long been thought to have been his final murder victim nearly 50 years ago.
. . .
[T]he authorities announced that they had recently tested seminal fluid that had been found at the scene of the murder of Mary Sullivan, who was sexually assaulted and strangled to death in January 1964, and had found a near certain match with Albert DeSalvo, the man who confessed to the Boston Strangler murders but was never convicted of the crimes.
. . .
The DNA samples taken from Ms. Sullivan’s body and a blanket in her Charles Street home, which the authorities have saved for nearly five decades, match DNA collected from a water bottle used recently by a nephew of Mr. DeSalvo, the authorities said. A Superior Court judge has granted permission to exhume Mr. DeSalvo’s body to determine a more conclusive link. The exhumation could occur as soon as this week.
From The Daily Caller:
A division of the U.S. Department of Justice (DOJ) was deployed to Sanford, Florida in 2012 to provide assistance for anti-George Zimmerman protests, including a rally headlined by activist Al Sharpton, according to newly released documents.
. . .
DOJ spokesperson Dena Iverson emailed a statement to The Daily Caller, saying, ”The Community Relations Service was in Florida as part of their mandated mission,” along with a link to the CRS’s website.
Read more: http://dailycaller.com/2013/07/10/doj-provided-security-for-anti-zimmerman-protests/#ixzz2Ymb0PzXK
Gregory M. Gilchrist (University of Toledo College of Law) has posted The Special Problem of Banks and Crime (85 University of Colorado Law Review, Forthcoming) on SSRN. Here is the abstract:
Federal prosecutors face increasing criticism for their failure to indict large banks and bankers for serious criminal conduct, including allowing violent drug cartels to launder hundreds of millions of dollars, willfully conducting business with rogue nations and terrorists, and manipulating the LIBOR to defraud investors. This Essay argues that the non-prosecution of banks is often justified by proper consideration of externalities and that the non-prosecution of bankers is often justified by lack of evidence. Nevertheless, the result is that extremely serious criminal conduct is penalized by mere fines and negotiated terms of probation, and this introduces deterrence and expressive costs to the legal system. These costs are significant and ought to be addressed, but the criminal law may not be the most effective tool for confronting criminal conduct by banks and bankers; rather, powerful regulatory tools already exist that could resolve the deterrent and expressive shortcomings of the criminal law in this area. Presently, the regulators are not using these tools; they ought to.
Sandeep K. Narang , John David Melville , Christopher S. Greeley , James D. Anderst , Shannon L. Carpenter and Betty Spivack (University of Texas Health Science Center at San Antonio , UTHSCSA , UTHSC-Houston , Children's Mercy Hospital , Children's Mercy Hospital and Independent) have posted A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis on SSRN. Here is the abstract:
For reasons inexplicable to many physicians, and unbeknownst to many others, the diagnosis of Abusive Head Trauma/Shaken Baby Syndrome (AHT/SBS) remains a lightning rod for controversy. Recent legal commentary has suggested that there is insufficient science girding this diagnosis. In Part I of the analysis on this topic, Dr. Narang presented a relatively comprehensive analysis of the current science surrounding AHT/SBS, and more specifically, surrounding two of the most common injuries found in AHT/SBS — subdural hemorrhages (SDHs) and retinal hemorrhages (RHs). Dr. Narang asserted that the diagnosis of AHT is supported by "at least 700 peer-reviewed, clinical medical articles comprising thousands of pages of medical literature, published by over one thousand different medical authors, from at least twenty-eight different countries." In response to this article, Findley et al reiterated an insufficient scientific basis for the diagnosis, citing, amongst other things, logical fallacies (such as "circularity" and "the prosecutor's fallacy") as premises for the fallacious literature. In Part II of this analysis, Narang et al swing the microscope in the opposite direction. Narang et al scrutinize the "differential diagnosis" of AHT, and the differential diagnosis methodology itself, to ascertain whether the scientific process of coming to the AHT diagnosis meets reliability and relevancy criteria under Daubert.
Wednesday, July 10, 2013
Eugene Kontorovich has this post at The Volokh Conspiracy:
[A] warrant must describe the “place to be searched, and the persons or things to be seized.” Why does the search warrant provision use the singular, while the arrest warrant provision use the plural? This could suggest a rule against multiple location search warrants, a rule that has never existed as far as I know.
What makes it even odder is that earlier state constitutions all referred to “places,” so this is not just a case of cut-and-past. And while the matter of a missing letter may seem to be the kind of thing that would escape the drafters’ notice, the Framers made similarly detailedone-letter edits to the text of the Fourth Amendment.
Deborah Davis , Richard A. Leo and Michael J Williams (University of Nevada, Reno , University of San Francisco - School of Law and University of Nevada, Reno) have posted Disputed Interrogation Techniques in America: True and False Confessions and the Estimation and Valuation of Type I and Ii Errors (in S. Cooper, ed., Controversies in Innocence Cases in America (Ashgate Publishing,2013), Forthcoming) on SSRN. Here is the abstract:
American studies of wrongful conviction have revealed a disturbing pattern. For roughly 25 percent of such cases the defendant was wrongfully convicted in part as the result of a false confession or false guilty plea. In this chapter, we first discuss the evidence that false confessions are a problem. We then review the causes of false confession, with emphasis on police interrogation techniques and interrogation-induced false confession. In this context, we discuss the specific interrogation techniques most strongly implicated in the production of false confessions, as well as specific reforms widely suggested by interrogation scholars to reduce the incidence of interrogation-induced false confession. Finally, the main body of the chapter addresses the issue of how the courts have treated the difficult issues raised by the undeniable problem of false confession and the role of coercive interrogation practices in producing them. Specifically, we address the courts’ rulings regarding the acceptability of specific interrogation practices and the conditions under which a confession is to be regarded as “voluntary” and hence admissible as evidence in trial.
From the New York Times:
Federal officials have found that the Miami Police Department engaged in a pattern of excessive force that led to a high number of shootings by officers, among them episodes that resulted in the deaths of seven young black men over an eight-month period in 2011.
The findings, released on Tuesday, came after a two-year investigation by the Justice Department’s civil rights division, and they identified “troubling” practices, including delays in completing investigations of officer-involved shootings, questionable police tactics and a lack of adequate supervision. From 2008 to 2011, officers intentionally fired their weapons at people 33 times, the investigation found.
Tuesday, July 9, 2013
Erin Murphy (New York University School of Law) has posted Legal and Ethical Issues in Forensic DNA Phenotyping on SSRN. Here is the abstract:
In the recent Supreme Court case of Maryland v. King, which addresses the constitutionality of compulsory collection of DNA samples from felony arrestees, the state and federal government repeatedly underscored that forensic tests of biological samples look only at meaningless, non-sensitive information. These non-coding, non-expressive parts of the genome have even earned a nickname, “junk,” that alone does much to assure the public that the police are not scrutinizing confidential information. The distinction is important in the legal community as well: Judges have consistently privileged the benefits to crime-solving against the minimal privacy intrusion posed by revelation of this otherwise meaningless string of numbers.
Frank Rudy Cooper (Suffolk University Law School) has posted We Are Always Already Imprisoned: Hyper-Incarceration and Black Male Identity Performance (Boston University Law Review, Vol. 93, p. 1183, 2013) on SSRN. Here is the abstract:
Numerous scholars have pointed out that drug war racial profiling has created an attributed identity of black men as presumptively criminal. This essay points out that the possibility of being imprisoned has become fundamental to black men's self identities. It criticizes Hanna Rosin’s End of Men thesis for myopically emphasizing a recent decline in white men's power, while ignoring the drug war’s long-standing terrible effects on men of color. Supreme Court jurisprudence on strip searches shows a similar lack of empathy for men of color. Rosin and the Supreme Court are consistent with my theory of the, “bipolarity of black masculinity”: Black men are typically popularly represented as either a criminal “Bad Black Man” or assimilated “Good Black Man,” with little nuance in between. This essay adds that black men are not just represented as appropriately disproportionately imprisoned, but also must, therefore, struggle internally with the fear of being imprisoned. In that sense, we are always already imprisoned within black masculinity.
David C. Gray and Danielle Keats Citron (University of Maryland-Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted A Shattered Looking Glass: The Pitfalls and Potential of the Mosaic Theory of Fourth Amendment Privacy (North Carolina Journal of Law and Technology, Vol. 14, No. 2, 2013) on SSRN. Here is the abstract:
On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores the mosaic theory and concludes that it exposes an important quantitative dimension of Fourth Amendment privacy but raises serious practical challenges, which, as we argue elsewhere, can be met by regulating surveillance technologies capable of facilitating broad programs of indiscriminate surveillance.
Monday, July 8, 2013
Hope Metcalf , Jamelia Morgan , Samuel Oliker-Friedland , Judith Resnik , Julia Spiegel , Haran Tae , Alyssa Roxanne Work and Brian Holbrook (Yale Law School , Independent , Independent , Yale University - Law School , Independent , Yale Law School , Independent and Independent) have posted Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies on SSRN. Here is the abstract:
This report provides an overview of state and federal policies related to long-term isolation of inmates, a practice common in the United States and one that has drawn attention in recent years from many sectors. All jurisdictions in the United States provide for some form of separation of inmates from the general population. Prison administrators see the ability to separate inmates as central to protecting the safety of both inmates and staff. Yet many correctional systems are reviewing their use of segregated confinement; as controversy surrounds this form of control, its duration, and its effects.