Saturday, August 24, 2013
Laurent Sacharoff (University of Arkansas - School of Law) has posted Constitutional Trespass on SSRN. Here is the abstract:
The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions — one based on the common law of 1791, on the trespass law of the state where the search occurred, or on more general trespass principles. Indeed its most recent case raises the question whether the Court has created a trespass test at all, a turnabout that largely recapitulates the Court’s 125-year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to year.
This article proposes a trespass test, as a supplement to a privacy test, that will settle this recent and historical uncertainty.
Friday, August 23, 2013
From the Blog of Legal Times:
A Pennsylvania federal judge has vacated the murder conviction of a man who’s spent more than 20 years on death row, saying the government built the case around “shaky” eyewitness identification and withheld evidence.
. . .
"The Commonwealth of Pennsylvania has committed a grave miscarriage of justice in convicting Dennis and sentencing him to die for this crime," Judge Anita Brody of U.S. District Court for the Eastern District of Pennsylvania wrote in her August 21 ruling.
From the New York Times editorial board:
As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse. Clemency given to powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, has only increased cynicism about the process.
Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation. No one seems to know why some requests are granted and others denied. To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win.
Bernard E. Harcourt (University of Chicago - Department of Political Science) has posted The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court's Opinion in United States v. Windsor, John Stuart Mill's Essay on Liberty (1859), and H. L. A. Hart's Modern Harm Principle on SSRN. Here is the abstract:
In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central point. The argument in The Collapse of the Harm Principle can be slightly restated and, I believe, continues to shed light on contemporary debates over the legal regulation of morality: Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. I then demonstrate the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v. Windsor, which, I argue, reflects perfectly the collapse of the harm principle.
Karena Rahall (Seattle University School of Law) has posted The Siren Is Calling: Economic and Ideological Trends Toward Privatizing Public Police Forces on SSRN. Here is the abstract:
The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to a Lochner era economic rights focus. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying and campaign financing is making wholesale privatization in the area of policing a very real possibility.
Thursday, August 22, 2013
From the New York Times:
Rialto has become the poster city for this high-tech measure intended to police the police since a federal judge last week applauded its officer camera program in theruling that declared New York’s stop-and-frisk program unconstitutional. Rialto is one of the few places where theimpact of the cameras has been studied systematically.
In the first year after the cameras were introduced here in February 2012, the number of complaints filed against officers fell by 88 percent compared with the previous 12 months. Use of force by officers fell by almost 60 percent over the same period.
. . .
William A. Farrar, the Rialto police chief, believes the cameras may offer more benefits than merely reduced complaints against his force: the department is now trying to determine whether having video evidence in court has also led to more convictions.
. . .
“When you put a camera on a police officer, they tend to behave a little better, follow the rules a little better,” Chief Farrar said. “And if a citizen knows the officer is wearing a camera, chances are the citizen will behave a little better.”
From the release:
On Oct. 31-Nov. 1,
2013, the ABA criminal justice section will host
its annual conference, this year at the Omni Shoreham in Washington,
D.C. The first event of the conference, on the afternoon of Thursday,
Oct. 31, is a workshop for scholarly papers relating to criminal
justice. The workshop will run from 1-4 p.m.
All papers on criminal law, criminal procedure, or criminal justice
topics are welcome. Participants will present their work in a
roundtable format, and abstracts or drafts will be shared among
presenters and discussants in advance of the workshop. Workshop
presenters must also attend the criminal justice panels on Friday,
Nov. 1. There will be three academic panels scheduled on Friday, one
prior to lunch and two in the afternoon.
Josh Bowers (University of Virginia School of Law) has posted Probable Cause, Constitutional Reasonableness & the Unrecognized Point of a 'Pointless Indignity' on SSRN. Here is the abstract:
A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally reasonable, even if it is entirely unreasonable by any plausible moral or instrumental measure. Indeed, the Court has upheld even an arrest that it termed a “gratuitous humiliation” and a “pointless indignity.” In this article, I examine what accounts for the Court’s prevailing methodological approach to Fourth Amendment reasonableness, and I evaluate whether the Court’s reasoning withstands scrutiny. Specifically, I trace the Court’s methodology back to a particular conception of the legality principle, whereby formalistic measures are crafted around suspicion of guilt and are treated as exclusive. I offer contrary reasons, however, to conclude that the legality principle’s chief purpose (as a safeguard against the arbitrary exercise of executive discretion) is better served by a two-ply constitutional test that would demand both probable cause and general reasonableness. That is, I submit that probable cause might work best as a special supplement to otherwise relevant qualitative considerations (and not as a special substitute). To support this claim, I focus narrowly on one particular qualitative consideration that probable cause has almost completely cannibalized. That consideration is dignity. It is not my purpose, however, to see the Fourth Amendment reoriented around dignity. Dignity matters, but neither it nor probable cause (nor anything else) is all that matters. I rely upon dignity as a placeholder for any of the many qualitative considerations that a quantitative proxy for constitutional reasonableness has unjustifiably ignored.
From the New York Times:
WASHINGTON — The federal government is making progress on developing a surveillance system that would pair computers with video cameras to scan crowds and automatically identify people by their faces, according to newly disclosed documents and interviews with researchers working on the project.
The Department of Homeland Security tested a crowd-scanning project called the Biometric Optical Surveillance System — or BOSS — last fall after two years of government-financed development. Although the system is not ready for use, researchers say they are making significant advances. That alarms privacy advocates, who say that now is the time for the government to establish oversight rules and limits on how it will someday be used.
Jan L. Jacobowitz and Danielle Singer (University of Miami - School of Law and University of Miami - School of Law) have posted The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
Attorney Mark O’Mara’s use of social media as part of the defense strategy in the representation of George Zimmerman, who was prosecuted for the death of Trayvon Martin, highlighted the use of social media in the practice of law, and because of the tremendous media coverage of the trial, facilitated a robust conversation on whether the legal profession’s use of social media is the “new normal.” In fact, lawyers’ increasing use of social media is evidenced by a growing body of case law, ethics opinions, and journal articles discussing the propriety of using social media in areas such as investigation, discovery, and jury selection. Nonetheless, social media is often discussed as a slippery slope where only the adventurous among the legal profession are traveling. However, technology and social media are evolving so quickly that lawyers who elect not to participate in social media may be in for a rude awakening. An awakening that makes clear that the requisite level of competence and expertise required to effectively represent clients and avoid disciplinary and malpractice exposure requires an understanding and use of social media and technology in the practice of law. This article will explore the legal profession’s historical relationship with communication technology, relevant legal ethics rules and opinions, court decisions and malpractice concerns, which all support the contention that the use of social media and technology in the practice of law not only has become a required component of effective lawyering, but also that the failure to employ social media may result in the ineffective representation of clients, disciplinary complaints, and/or malpractice claims.
Wednesday, August 21, 2013
Tracy Hresko Pearl (Florida International University (FIU) - College of Law) has posted Restoration, Retribution, or Revenge? Time Shifting Victim Impact Statements in American Judicial Process (Criminal Law Bulletin, Vol. 50, No. 4, 2014, Forthcoming) on SSRN. Here is the abstract:
Courts currently permit victims to offer victim impact statement in criminal proceedings in all 50 states and federal jurisdictions. However, victim impact statements introduce serious constitutional problems into criminal cases by (1) creating inconsistencies in sentencing, (2) injecting bias and prejudice into formal courtroom proceedings, (3) giving judges and prosecutors an opportunity to reject testimony that might sway jurors toward more lenient punishments, and (4) leaving defendants with little opportunity to mitigate their impact on decision-makers. Scholars, therefore, have resoundingly called for the exclusion of victim impact statements from criminal proceedings in the United States. In this article, I take a decidedly different position and argue instead that victim impact statements are, in fact, salvageable. Specifically, I look to lessons from the restorative justice movement and propose a solution that relies on time shifting victim impact statements to the close of criminal proceedings. By removing victim impact statements from trials and sentencing and requiring that they be offered afterwards, their constitutional deficiencies can be virtually eliminated and their numerous benefits preserved.
From the New York Times:
In some Texas counties, it takes six months or longer to get DNA test results from the Department of Public Safety, says William Lee Hon, the Polk County criminal district attorney.
Now, Mr. Hon and other prosecutors fear that come Sept. 1, when a new law takes effect requiring DNA analysis of all biological evidence in death penalty cases, the wait could grow longer. “We’re not sure that D.P.S. has the resources currently to adequately comply with that legislation,” he said.
Brandon L. Garrett (University of Virginia School of Law) has posted Accuracy in Sentencing (Southern California Law Review, Vol. 86, 2014, Forthcoming) on SSRN. Here is the abstract:
A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice” — that is, a type of claim of innocence. The Supreme Court’s “miscarriage of justice” standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post- conviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255. That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result. However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled. In this essay, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.
An op-ed piece from The New York Times:
SETTING aside the legal wisdom of the recent decision by a federal judge against the New York Police Departmentand its stop-and-frisk policy, one thing seems clear: the judge’s remedy will be enormously expensive and time-consuming to implement, and at a time when the number of stops is falling dramatically.
. . .
Judge Scheindlin also ordered a one-year program requiring officers from the precinct in each borough with the highest number of stops to wear body cameras. This program could involve some 2,000 officers, including those assigned to public housing. The judge cites the success of a similar program in Rialto, Calif., but that city of 100,000 can’t be compared to New York. (Rialto had 54 police officers, half of whom wore cameras.) The judge argued that body cameras will, among other things, “encourage lawful and respectful interactions on the part of both parties.” But anyone who watches the reality show “Cops” has good reason to be skeptical.
Tuesday, August 20, 2013
Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite — that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.
Jeffrey Bellin (William & Mary Law School) has posted Attorney Competence in an Age of Plea Bargaining -- and Econometrics (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of counsel claims into America’s untidy plea bargaining regime. The second part of the Essay highlights the extraordinary empirical methods employed to unearth the findings described in Part I. As empiricists apply increasingly sophisticated tools to the extraordinarily complex criminal justice system, gaining insight into the advantages and shortcomings of various methodological approaches can be just as important for those interested in criminal justice as any particular study’s substantive contributions.
Deborah W. Denno (Fordham University School of Law) has posted What Real-World Criminal Cases Tell Us About Genetics Evidence (Hastings Law Journal, Vol. 64, pp. 1591-1618, 2013) on SSRN. Here is the abstract:
This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy. This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from serious omissions that affect the validity and reliability of its results. It is important to call attention to these problems given that the study’s widely-publicized findings are likely to bolster inaccurate perceptions regarding the dangers of allowing behavioral genetics evidence in criminal cases. This Article concludes with a detailed discussion of a number of recent criminal cases involving behavioral genetics evidence. Familiarity with such cases may improve the real-world applicability of future experimental studies exploring the influence of genetics evidence on criminal cases.
Monday, August 19, 2013
George Vallas has posted A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses (American Journal of Criminal Law, Vol. 39, No. 1, Fall 2011) on SSRN. Here is the abstract:
Eyewitness testimony is indispensible to the proper functioning of the criminal justice system. However, as Justice Frankfurter famously observed: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Social scientists, legal commentators, and even courts have long been skeptical of eyewitness testimony. Developments in forensic testing have established beyond any doubt that eyewitness testimony has the potential to be dangerously unreliable, and eyewitness misidentification remains the leading cause of false convictions in the United States.
From The New York Times:
Driven by budget constraints and the ubiquity of surveillance video, many police departments have scaled back on the practice. In Los Angeles, sketches are done by an artist on contract. The Chicago Police Department has not had a staff sketch artist since 1993. Two full-time forensic artists in Philadelphia do fewer sketches and more odd jobs, like putting decals on squad cars.
“Last year, we only did 14,” said Lt. John Rauchut, who heads the Philadelphia Police Department’s Graphic Arts Unit. “Ten years ago, we did 147 sketches and it’s been declining ever since.”
But not so in New York City.
. . .
In a technology-obsessed department actively pursuing futuristic tools — like a scanner to detect hidden guns or robust facial recognition software — the sketches still hold sway for the simple reason that, despite their seeming imprecision, detectives still use them to catch suspects.
Paul J. Larkin Jr. (The Heritage Foundation) has posted Crack Cocaine, Congressional Inaction, and Equal Protection (Harvard Journal of Law and Public Policy, Vol. 37, 2013) on SSRN. Here is the abstract:
For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form. The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.