Saturday, August 3, 2013
From USA Today:
WILMINGTON, Del. -- Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study.
The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day. The report is scheduled for release Wednesday.
"Egregious Fourth Amendment violation shown for invoking exclusionary rule in deportation proceeding"
From FourthAmendment.com, summarizing a Second Circuit case applying the exclusionary rule for the benefit of a noncitizen. In the words of the editor, "how often has the non-citizen prevailed in these things? Haven't seen one before because courts always find them 'not egregious enough.'" From the opinion:
Initially, we note that ICE officers purposely arrived at Sicajau's home in the pre-dawn hours, presumably for the purpose of startling the sleeping residents, and, perhaps, with the aim of coercing confused consent. In addition, although the officers apparently secured their target, Cojon, they returned to the home without a warrant and without reasonable suspicion that additional illegal aliens remained behind the home's locked doors. The Government failed to offer any evidence showing that its officers obtained voluntary consent to enter the home; the only record of the raid that we have comes from Sicajau and Ochoa. In the absence of evidence to the contrary, their statements support finding that ICE officers entered the home without consent in egregious violation of the Fourth Amendment.
Margaret K. Lewis (Seton Hall University - School of Law) has posted Criminal Law's Contribution to China's Economic Development on SSRN. Here is the abstract:
China’s rapid rise to become the second largest economy in the world is nothing short of extraordinary. This Article looks at China’s impressive growth since the late 1970s and asks what role criminal law has played. Going a step further, what role might it play in the future? This is a particularly timely inquiry on the heels of a once-a-decade leadership transition and at a time when China’s ability to maintain a robust growth rate is facing rising skepticism.
Corporate behavior is often regulated through the criminal law by means of reverse onus offenses. Such offenses are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offenses are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offenses are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offenses in the case of corporate defendants.
Friday, August 2, 2013
Brandon Garrett has this post at the Harvard University Press Blog:
With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.
From the L.A. Times:
BUENOS AIRES -- Uruguay appears likely to become the first Latin American country to legalize marijuana after its lower house of Congress approved a bill to regulate and sanction the consumption of pot.
Uruguay’s upper house, the Senate, still must pass the measure, but analysts believe the government-led majority favors the law and that it will be approved by October. President Jose Mujica is a strong proponent of the measure, though polls have shown a majority of Uruguayans oppose it.
This editorial is from the New York Times:
In 2010, Congress passed the Fair Sentencing Act, which reduced the vast disparity in the way the federal courts punish crack versus powder cocaine offenses. Instead of treating 100 grams of cocaine the same as 1 gram of crack for sentencing purposes, the law cut the ratio to 18 to 1.
. . .
But 18 to 1 is still out of whack. The ratio was always based on faulty science and misguided assumptions, and it still disproportionately punishes blacks, who make up more than 80 percent of those prosecuted for federal crack offenses. The commission and the Obama administration have called for a 1-to-1 ratio. The question is not whether we can afford to do it, but whether we can afford not to.
Eugene Volokh has this post at The Volokh Conspiracy discussing a case upholding tort liability for renting to a tenant with a past record who subsequently commits a crime on the premises:
If you don’t rent to him, where do you think poor people with such criminal convictions — dating back 7 years and more — should live?
(For an earlier post on this topic, though without the case as an illustration, see here. Note that of course a similar issue is raised by laws that bar people with histories of sex crimes from living within a certain distance of schools, parks, and similar places where children congregate; in many cities, that covers a huge part of the housing stock. But the tort liability risk I discuss here applies not just to people with sex crime records but to the much broader set of people with violent crime records more generally, and perhaps even drug crimes and other crimes that could be seen as predictors of future violence or of future negligence.)
Paul D. Butler (Georgetown University Law Center) has posted Poor People Lose: Gideon and the Critique of Rights (Yale Law Journal, Vol. 122, pp. 2176-2204, 2013) on SSRN. Here is the abstract:
A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement ofGideon would not significantly improve the loser status of low-income people in American criminal justice.
Thursday, August 1, 2013
An article in the Denver Post discusses it:
Introduced in 1985 as the Homeowner Protection Act, "make my day" gives Colorado residents the right to shoot and kill an intruder if they believe the person intends to commit a crime and use physical force, "no matter how slight." That extraordinary right stops at the door. Front porches and backyards don't count.
. . .
Nobody records how often "make my day" is used as a defense against criminal charges in Colorado, or how often charges are not filed based on the law. But an informal survey by Doug Wilson, the state public defender, found there have been at least 22 cases in his agency's offices in the past year in which the law was cited as a defense. Two ended with jury acquittals, two were dismissed by district attorneys, four were plea-bargained and seven others are pending.
From the AP:
Three decades after they were introduced as a crime-fighting tool, electronic ankle bracelets used to track an offender's whereabouts have proliferated so much that officials are struggling to handle an avalanche of monitoring alerts that are often nothing more sinister than a dead battery, lost satellite contact or someone arriving home late from work.
Amid all that white noise, alarms are going unchecked, sometimes on defendants now accused of new crimes.
Some agencies don't have clear protocols on how to handle the multitude of alerts, or don't always follow them. At times, officials took days to act, if they noticed at all, when criminals tampered with their bracelets or broke a curfew.
Crime and Consequences suggests a link between rising crime rates in California and realignment:
Does this prove realignment is the cause? No, proof either way is not possible at this point. But it's probable cause, at the very least. Common sense tells us that releasing large numbers of criminals is likely to cause increased crime. The pattern of increases in the various crimes fits the pattern we would expect if realignment were the cause of the increase. No alternative explanation for an increase in 2012 is apparent.
Wednesday, July 31, 2013
From the Atlantic:
We don't have a mind reading machine. But what if we one day did? The technique of functional MRI (fMRI), which measures changes in localized brain activity over time, can now be used to infer information regarding who we are thinking about, what we have seen, and the memories we are recalling. As the technology for inferring thought from brain activity continues to improve, the legal questions regarding its potential application in criminal and civil trials are gaining greater attention.
. . .
So far, concerns regarding reliability have kept thought-inferring brain measurements out of U.S. (but not foreign) courtrooms. But is technology theonly barrier? Or, if more mature, reliable brain scanning methods for detecting truthfulness and reading thoughts are developed in the future, could they be employed not only by defendants hoping to demonstrate innocence but also by prosecutors attempting to establish guilt? Could prosecutors armed with a search warrant compel an unwilling suspect to submit to brain scans aimed at exploring his or her innermost thoughts?
"In L.A. County, a juvenile suspect assigned an attorney for a flat fee is likely to fare much worse than one who gets a public defender"
This op-ed is from the L.A. Times:
Three hundred fifty dollars. That's the amount Los Angeles County pays a private attorney to represent a child charged with crimes when the public defender has a conflict of interest and can't handle the case. That $350 has to cover all legal work, even when the child is charged with a serious crime such as murder or rape. About 11,000 kids a year end up being represented by such appointed counsel.
. . .
Public defenders are hired through a highly selective national recruiting process. They are trained by senior attorneys and work in an office that rewards zealous advocacy with promotions and raises.
The county requires no vetting of appointed attorneys, nor does it have requirements for special training or experience.
From Doug Berman at Sentencing Law and Policy:
I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page. While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.
Tuesday, July 30, 2013
Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.
Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut out competitors. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.
From the New York Times:
The prison population in the United States dropped in 2012 for the third consecutive year, according to federal statistics released on Thursday, in what criminal justice experts said was the biggest decline in the nation’s recent history, signaling a shift away from an almost four-decade policy of mass imprisonment.
. . .
Imprisonment rates in the United States have been on an upward march since the early 1970s. From 1978, when there were 307,276 inmates in state and federal prisons, the population increased annually, reaching a peak of 1,615,487 inmates in 2009.
But in recent years, tightened state budgets, plummeting crime rates, changes in sentencing laws and shifts in public opinion have combined to reverse the trend. Experts on prison policy said that the continuing decline appears to be more than a random fluctuation.
"U.S. Government Getting Password Information? (And Why the Story Raises More Questions Than Answers)"
There are three distinct legal issues here, so let’s take them one by one.
(a) The first issue is obtaining the passwords pursuant to legal process. As long as the government has a valid warrant, the legal process should be sufficient as I indicate above. As I mention above, there are some interesting questions about whether the government needs a warrant or if it can obtain the information using less legal process. But those questions are pretty complicated, so I’ll spare you the details.
Katie Rose Guest Pryal (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Reframing Sanity: Scapegoating the Mentally Ill in the Case of Jared Loughner (RE/FRAMING IDENTIFICATIONS 159-168 (Michelle Ballif ed., 2013)) on SSRN. Here is the abstract:
Rhetoric scholars (Predergast, Leweicki-Wilson, Pryal) have examined the rhetorical disempowerment of the mentally ill, whose perceived lack of reason isolates them from public discourse. Such isolation can be explained using Kenneth Burke's theory of identification (and its "ironic counterpart," division) which shows how the discursive markers of "sane" and "insane" function to create an in-group, the sane, that relies upon the rhetorical and physical isolation of the insane. The article argues that the mentally ill make an ideal Burkean scapegoat, and that the criminal acts of a few mentally ill people provides the necessary justification for the scapegoating of the entire group, taking the case of Jared Loughner's shootings in Tucson, Arizona.