February 23, 2013
Klaming & Koops on Neuroscientific Evidence in the Netherlands
Laura Klaming and Bert-Jaap Koops (Tilburg Institute for Law, Technology and Society (TILT) and Tilburg Institute for Law, Technology and Society (TILT)) have posted Neuroscientific Evidence and Criminal Responsibility in the Netherlands (INTERNATIONAL NEUROLAW: A COMPARATIVE ANALYSIS, pp. 227-256, T.M. Spranger, ed., Heidelberg etc, Springer, 2012) on SSRN. Here is the abstract:
Insights from neuroscientific research are increasingly advancing our understanding of the neural correlates of human behaviour, cognition and emotion and can therefore be of significant practical use in a legal context. One of the most fundamental legal applications of neuroscience refers to the assessment of criminal responsibility. Recent empirical studies have established links between certain brain structures and antisocial or criminal behaviour. Three areas of brain abnormalities that are relevant for assessments of criminal responsibility can be differentiated: (1) impairments in the frontal lobes and associated problems with impulse control, aggressiveness and the processing of information that is evocative of moral emotions, (2) abnormalities in the limbic system and associated problems in affective processing, and (3) the potential side-effects of neurotechnologies and associated problems with impulse control, aggressiveness and disinhibited behavior. This chapter addresses recent research findings in these three areas and how these could affect responsibility assessments. In addition, eight cases are discussed in which insights from neuroscientific research have been used by Dutch courts in responsibility assessments. By illustrating how neuroscientific evidence has already entered the courtroom in the Netherlands, the possible conditions and implications of such practice are addressed.
Gouldin on the Judicial Role in Material-Witness Detentions
Lauryn P. Gouldin (Syracuse University College of Law) has posted When Deference is Dangerous: The Judicial Role in Material-Witness Detentions (American Criminal Law Review, Vol. 49, No. 3, 2012) on SSRN. Here is the abstract:
Federal prosecutors’ aggressive use of the Material Witness Statute to detain scores of potential terrorism suspects during the decade following 9/11 has been well established by scholars and human rights groups. Details about these detentions have also emerged in criminal and civil litigation, including Ashcroft v. al-Kidd, the first case challenging the government’s witness detention practices to reach the Supreme Court.
This Article posits that the fixation in the literature (and in lawsuits like al-Kidd) on prosecutors’ allegedly pretextual use of the statute has overshadowed the complicity of the judiciary in authorizing these arrests and detentions. The provisions of the Material Witness Statute - and its relationship to the contempt power - make clear that, despite prosecutors’ efforts to co-opt the statute as a law enforcement tool, the authority to arrest and detain material witnesses is a judicial power. As such, the factors that prompted judicial acquiescence in these cases require greater scrutiny.
Judges who signed material-witness arrest warrants repeatedly departed from longstanding precedents that defined flight risk in the material-witness and bail contexts. Despite the fact that material-witness detentions should not involve considerations of dangerousness, many of these witnesses were incarcerated for weeks or even months in highly secure facilities pursuant to protocols reserved for the most dangerous pretrial detainees.
This Article considers two factors that may have influenced these judicial decisions: cognitive biases and excessive pressure to defer to the executive branch. These cases offer an opportunity to evaluate claims made by scholars in the ongoing debate about the degree to which judges do and should defer to prosecutors in cases implicating national security interests. Finally, this Article outlines preliminary proposals intended to reinvigorate the judiciary as a meaningful check in material-witness cases and more broadly in the criminal justice system.
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog, which also links to papers:
- McQuiggin v. Perkins: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”
- Trevino v. Thaler: Whether the Court should vacate the Court of Appeals’ opinion and remand to the Court of Appeals for consideration of Mr. Trevino’s argument under Martinez v. Ryan?
- Maryland v. King: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
- Peugh v. U.S.: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.
February 22, 2013
Slobogin on the Essential Fourth Amendment
Christopher Slobogin (Vanderbilt University - Law School) has posted What is the Essential Fourth Amendment? (Texas Law Review, Vol. 91, No. 2, 2012) on SSRN. Here is the abstract:
In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given it. Appended to the review of Schulhofer's book is a review of another book, Simon Chesterman's One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty.Chesterman argues that traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification and other types of intelligence gathering are doomed and that governments should instead concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. After describing the gist of the book, this review, to be published in Intelligence and National Security, investigates these prescriptions in more detail and, with a few caveats, subscribes to them.
Anderson on US v Jones and Body Snatching
Heidi Reamer Anderson (Florida Coastal School of Law) has posted Body Snatchers on SSRN. Here is the abstract:
In U.S. v. Jones, five concurring justices expressed their forward-looking discomfort with law enforcement’s warrantless use of surveillance technologies in public. The source of the justices’ discomfort was two-dimensional — “easy and cheap” search technologies were problematic because they increased the intrusiveness of, and the duration of, public surveillance. Although the justices carefully explained their concerns, they did not clearly identify the Fourth Amendment precedential hooks on which to hang those concerns. Accordingly, the concurrences left two key questions unanswered: (i) what is it about extended, warrantless public tracking that makes it feel so intuitively unreasonable, and (ii) is there support for that intuitive feeling in prior Fourth Amendment cases?
In this Essay, I suggest that extended, warrantless public tracking feels so intuitively unreasonable because it equates to virtual “body snatching.” Body snatching occurs when warrantless tracking is so personally intrusive, over such a long period of time, that it feels very much like a physical detention in public. Thus, in searching for the missing Fourth Amendment precedential support for the Jones concurrences’ intrusion and duration concerns, I suggest that the Court consider U.S. v. Place. In Place, the Court required a finding of probable cause prior to the seizure and dog sniff of luggage due to the intrusiveness of, and length of detention associated with, the luggage seizure. Similarly, the Court soon could find that warrantless, public tracking is not a search unless the intrusiveness and duration of the tracking cross lines similar to those crossed in Place. Using Place in this fashion would provide a solid foundation for restricting warrantless GPS tracking while also providing familiar certainty to law enforcement.
February 21, 2013
Kimel on DNA Profiles, Computer Searches and the Fourth Amendment
Courts have allowed the reasonableness and minimal invasiveness of DNA seizures to shield from constitutional scrutiny CODIS searches’ intrusions upon privacy expectations. But the Fourth Amendment discussion of DNA-collection statutes should begin at the point of comparison—not at the point of extraction—because CODIS searches are the point at which the government invades truly weighty privacy expectations in the absence of individualized suspicion. Further, because current CODIS search procedures so closely resemble unreasonable, general-warrant computer searches, courts should apply computer search requirements to CODIS searches to remedy CODIS’s current constitutional shortcomings
Cunliffe on Equality and Sexual Assault Cases in Canada
Emma Cunliffe (University of British Columbia - Faculty of Law) has posted Sexual Assault Cases in the Supreme Court of Canada: Losing Sight of Substantive Equality? ((2012) 57 Supreme Court Law Review (2d) 295-316) on SSRN. Here is the abstract:
The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This article considers the effectiveness of these reforms. Part 2 supplies a history of the relationships between consent, trial procedure, and substantive equality in sexual assault law. The author argues that substantive equality has had a significant effect on both substance and procedure. Part 3 examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, the author focuses on the factual reasoning in the three sexual assault cases decided by the Supreme Court of Canada (SCC) in 2011 (R v JAA 2011 SCC 17; R v JA 2011 SCC 28; R v JMH 2011 SCC 45).
The authors analysis shows that substantive equality reasoning has not yet infused judicial approaches to fact determination in sexual assault cases, and that individual complainants are not yet fully protected against the operation of myths and stereotypes when consent or credibility are at stake. She suggests in conclusion that the SCC has a leading role to play in moving judicial reasoning towards a more egalitarian approach to fact determination.
Opinion assessing whether error is "plain" at time of appellate reviewJustice Breyer delivered the opinion of the Court. Justice Scalia filed a dissenting opinion in which Justices Thomas and Alito joined.
Opinion addressing whether federal claim addressed on merits by state courtJustice Alito delivered the opinion for the Court in Johnson v. Williams. Justice Scalia concurred in the judgment.
Opinion holding double jeopardy clause bars retrial after erroneous court-ordered acquittalJustice Sotomayor authored the opinion for the Court in Evans v. Michigan. Justice Alito dissented.
Opinion rejecting retroactive applicability for PadillaJustice Kagan delivered the opinion of the Court in Chaidez v. United States. Justice Thomas concurred in the judgment. Justice Sotomayor dissented in an opinion joined by Justice Ginsburg.
February 20, 2013
Anderson et al. on Reducing Crime with Zoning
James M. Anderson , John MacDonald , Ricky Bluthenthal and J. Scott Ashwood (RAND Corporation , University of Pennsylvania - Jerry Lee Center of Criminology , University of Southern California - Keck School of Medicine and RAND Corporation) have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles (University of Pennsylvania Law Review, Vol. 161, No. 699, 2013) on SSRN. Here is the abstract:
The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.
Russell on Reluctance to Resentence
Sarah French Russell (Quinnipiac University School of Law) has posted Reluctance to Resentence: Courts, Congress, and Collateral Review (North Carolina Law Review, Vol. 91, No. 1, p. 79, 2012) on SSRN. Here is the abstract:
In a series of recent decisions, the Supreme Court overturned a number of circuit court opinions and adopted a more narrow reading of certain federal recidivist sentencing enhancements. Although the decisions revealed that many federal prisoners were sentenced incorrectly and are serving sentences that are much longer than they should be, few of these prisoners have obtained relief in the lower courts on collateral review. Courts have generally dismissed the claims on procedural grounds, citing interests in finality. Indeed, courts often refuse to correct sentencing errors on collateral review, even when both the judge and the prosecutor acknowledge that the prisoner is serving additional years in prison based on a sentencing mistake. After a criminal judgment has become “final,” federal courts appear reluctant to resentence.
Federal prisoners seeking collateral review of sentences are subject to the same — and in some cases stricter — procedural barriers to relief as those seeking the more drastic remedy of undoing their convictions. But sentencing errors should be easier to fix than conviction-based errors because arguments favoring finality are much weaker in the sentencing context. Correcting a sentence is vastly easier than retrying a case, and staleness of evidence is not a major concern at a resentencing because judges, unlike juries, can rely on previous findings. Outside the special context of capital cases, the important distinctions between collateral review of sentences and convictions have received little attention from courts or scholars.
Given the backdrop of extensive litigation in the lower courts about correcting sentencing errors at the collateral review stage, and the possibility that the Supreme Court will need to resolve divergent circuit decisions in this area, now is an important moment to consider whether interests in finality should carry as much weight when a court reviews a sentence rather than a conviction in a collateral proceeding, and when the federal court is reviewing its own decision rather than the decision of a state court. Courts have been overstating the interests in finality of sentences. They should be correcting more sentencing mistakes on collateral review, at least where an intervening decision has narrowed the reach of a substantive sentencing provision.
Coverage of and commentary on yesterday's dog alert case
at first blush it seems that the Court has said there is no particular test and then created a particular test: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent and successful” completion of a training program creates a presumption of probable cause that then can be rebutted by defense counsel. Granted, the Court does say that certification or training can create a presumption of probable cause, rather than that it does. But I’m not sure there is a difference. The state has the burden of proving probable cause. If a fact “can” create a rebuttable presumption that the burden is satisfied, does that mean that judges have the discretion to say that the fact creates a presumption or free to say it doesn’t create that presumption? Or does it simply mean that the fact does create a presumption that the defense can then rebut?
the controlled conditions in which dogs are evaluated don’t typically match field conditions very well: the handlers there often know where on the test course drugs are located—and even when they don’t, have no incentive to want the dog to alert at any particular location, which removes those subconscious signals from the equation. Bizarrely, the Court nevertheless held that the “better measure of a dog’s reliability… comes away from the field, in controlled testing environments.” Worse, the opinion also provides police deparments with an added perverse incentive to avoid collecting data on the real-world reliability of their sniffers: while a dog’s alert provides prima facie probable cause for a search, the Court held, defendants must be given an opportunity to challenge the reliability of a particular search in court—with field performance as one potential grounds for challenge. But, of course, if that’s the case, keeping records of false positives can only serve to give defendants grounds to invalidate a search that would otherwise be presumed valid.
February 19, 2013
"Prison and the Poverty Trap"
From The New York Times:
The shift to tougher penal policies three decades ago was originally credited with helping people in poor neighborhoods by reducing crime. But now that America’s incarceration rate has risen to be the world’s highest, many social scientists find the social benefits to be far outweighed by the costs to those communities.
“Prison has become the new poverty trap,” said Bruce Western, a Harvard sociologist. “It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”
Among African-Americans who have grown up during the era of mass incarceration, one in four has had a parent locked up at some point during childhood. For black men in their 20s and early 30s without a high school diploma, the incarceration rate is so high — nearly 40 percent nationwide — that they’re more likely to be behind bars than to have a job.
"Prosecutors, Shifting Strategy, Build New Wall Street Cases"
From the New York Times:
Criticized for letting Wall Street off the hook after the financial crisis, the Justice Department is building a new model for prosecuting big banks.
In a recent round of actions that shook the financial industry, the government pushed for guilty pleas, rather than just the usual fines and reforms. Prosecutors now aim to apply the approach broadly to financial fraud cases, according to officials involved in the investigations.
Lawyers for several big banks, who spoke on the condition of anonymity, said they were already adjusting their defenses and urging banks to fire employees suspected of wrongdoing in the hope of appeasing authorities.
Leo, Neufeld, Drizin & Taslitz on Promoting Accuracy in Confession Evidence
Richard A. Leo (pictured), Peter J. Neufeld , Steven A. Drizin and Andrew E. Taslitz (University of San Francisco - School of Law , Benjamin N. Cardozo School of Law - Innocence Project , Northwestern University - School of Law, Bluhm Legal Clinic and American University - Washington College of Law) have posted Promoting Accuracy in the Use of Confession Evidence: An Argument for Pre-Trial Reliability Assessments to Prevent Wrongful Convictions (Temple Law Review, Forthcoming) on SSRN. Here is the abstract:
This article argues that constitutional criminal procedure rules provide insufficient safeguards against the admissibility of false confession evidence that is the product of police contamination. We propose a specific framework, as well as several possible mechanisms, for courts to review and screen the reliability of confession evidence prior to trial. We also offer specific suggestions for how pre-trial reliability assessments for confession evidence could effectively and efficiently work in practice. Finally, we respond to several possible objections to the idea of pre-trial reliability assessments, underscoring that in a variety of contexts trial judges – consistent with their traditional gatekeeping role -- already routinely prevent evidence with sufficient indicia of unreliability from going to the jury.