Friday, February 28, 2014
Adam Lamparello and Charles E. MacLean (Indiana Tech -- Law School and Indiana Tech Law School) have posted Back to the Future: The Constitution Requires Reasonableness and Particularity — Introducing the 'Seize But Don't Search' Doctrine on SSRN. Here is the abstract:
Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.
Ellen Koenig has posted A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains (Fordham Urban Law Journal, Vol. 41, No. 177, 2013) on SSRN. Here is the abstract:
The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong ″reasonableness″ test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.
The post is at Wrongful Convictions Blog. In part:
It was just a year ago that we posted about dog scent lineups. At the time, we called it “one of the junkiest of the junk sciences.” This opinion is echoed in a law suit filed just this week by a Texas woman, Megan Winfrey. Ms. Winfrey spent 6 years in prison before her murder conviction, based on a dog scent lineup, was overturned. Her suit calls dog scent lineups “the worst of junk science.”
Tim Friehe and Hannah Schildberg-Hörisch (University of Konstanz - Department of Economics and University of Bonn) have posted The Individual and Joint Performance of Economic Preferences, Personality, and Self-Control in Predicting Criminal Behavior on SSRN. Here is the abstract:
We explore the individual and joint explanatory power of concepts from economics, psychology, and criminology for criminal behavior. More precisely, we consider risk and time preferences, personality traits from psychology (Big Five and locus of control), and a self-control scale from criminology. We find that economic preferences, personality traits, and self-control complement each other in predicting criminal behavior. The most significant predictors stem from all three disciplines: risk aversion, conscientiousness, and high self-control make criminal behavior less likely. Our results illustrate that integrating concepts from various disciplines enhances our understanding of individual behavior.
Thursday, February 27, 2014
I do not disagree with the general view that 2014 is a "watershed year" concerning discussion and debate over marijuana reform (and this was one big reason I developed a taught a seminar on the topic at my law school last Fall). But, as the title of this post highlights, I have come to believe that a much broader set of social and political forces help account for modern marijuana reform movement. The forces include, inter alia, a growing distrust of all government among both left-leaning and right-leaning opinion leaders over the last 15 years, growing evidence that the many aspects of the drug war may do more harm than some drugs, the failure of Big Pharma to provide effective pain relief (without too many side effects) to many who suffer from a range of serious medial problems, and changing labor and economic realities that change to cost/benefit realities of pot prohibition versus pot regulation.
Thermal imaging devices have been available for sale online, relatively cheaply, for at least a couple of years. But now, an iPhone attachment will let you carry a thermal imaging camera in your pocket. FLIR Systems, a specialized camera company, plans to release its thermal camera and app for iPhone for less than $350 this spring.
. . .
But technology often changes faster than the law, and now thermal imaging technology is available at our fingertips. How will the availability of these devices affect police, who under current law are barred from using thermal imaging without a warrant? The 2001 decision came at a time when these heat detectors were not "in general public use" — but what now?
Georgetown University law professor David Cole says the key here is not the availability of such a device and app but how people use it. He said the app will not change our expectation of privacy until ordinary people use it in a way similar to the police search in Kyllo.
The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.
There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways.
Murat C. Mungan and Jonathan Klick (Florida State University - College of Law and University of Pennsylvania Law School) have posted Discounting and Criminals' Implied Risk Preferences on SSRN. Here is the abstract:
It is commonly assumed that potential offenders are more responsive to increases in the certainty than increases in the severity of punishment. An important implication of this assumption within the Beckerian law enforcement model is that criminals are risk-seeking. This note adds to existing literature by showing that offenders who discount future monetary benefits can be more responsive to the certainty rather than the severity of punishment, even when they are risk averse, and even when their disutility from imprisonment rises proportionally (or more than proportionally) with the length of the sentence.
Amy Ronner (St. Thomas University - School of Law) has posted Recreating Dead House: The Ouster of Miranda from Our Prisons (Criminal Law Bulletin Vol. 50 (1),Thomson Reuters/West, 2014) on SSRN. Here is the abstract:
Feodor Dostoevsky's Notes From the House of the Dead takes place in the mid-Nineteenth Century in a remote region of Russia and we, as readers tend to comfort ourselves with its temporal and geographical distance. That is, we handle the atrocities, torture, and horror of prison by telling ourselves, at least on an unconscious level, that it all happened way back when, and that Siberia, so many light years away, could almost be another planet. If, however, we are courageous enough to let go of such denial, we likely realize that Dostoevsky has an important message, one which pertains to the here and now and to the prisons in our own backyard.
On its broadest level, this Article aims to show how the United States Supreme Court is effectually recreating Dead House through its post-Miranda decisions.
Orin Kerr has this post at ScotusBlog on the yesterday's opinion on consent searches. Among the interesting observations:
Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means. Does the requirement of presence mean present at the door, or does it mean presenton or near the premises? . . .
Which is it, presence at the door or presence on the premises? It’s at least possible that it’s a bit of both. Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises. Reading over the opinion, I’m not sure. Either way, it would seem to make a difference at least in some cases. Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap). Can the police search the house then? And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?
Wednesday, February 26, 2014
What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.
Investigative reporter Julia Angwin was curious what Google knew about her, so she asked the company for her search data. "It turns out I had been doing about 26,000 Google searches a month ... and I was amazed at how revealing they were," she tells Fresh Air's Dave Davies.
From NSA sweeps to commercial services scraping our Web browsing habits, to all kinds of people tracking us through our smartphones, Angwin says we've become a society where indiscriminate data-gathering has become the norm. Angwin has covered online privacy issues for years, and in her new book she describes what she did to try to escape the clutches of data scrapers, even to the point of creating a fake identity.
From The Huffington Post:
The 43-year-old woman has not been charged with a crime, The Longview Daily News reports, but a Cowlitz County judge ordered a material witness warrant for her after she failed to show up for pre-trial meetings with prosecutors.
. . .
A similar case drew national attention in 2012, when a 17-year-old rape victim in Sacramento failed to appear at a hearing. She was placed in a juvenile detention center for weeks to ensure she would testify against the man who kidnapped her while she was waiting for a friend at a train station, then raped her.
Matthew Dyson (University of Cambridge - Trinity College Cambridge) has posted Might Alone Does Not Make Right: Justifying Secondary Liability on SSRN. Here is the abstract:
The current test for secondary liability usually turns on foresight of a risk that the principal might commit the crime, but this is misguided. If some form of foresight must be used, which is both doubtful and if true, regrettable, the current formulation of it is unacceptable. It is commonly said now that S is liable for the same offence as P, where S foresees a “real risk” or “substantial possibility” that P will commit that offence. This is a poor cousin to recklessness, the hard-won common law test for wrongful risk-taking. In particular, reference to quantifying the risk cannot take the place of the other established element of recklessness: recklessness only criminalises foreseeing a risk and unjustifiably taking it, rather than merely the taking of any appreciated risk, however small. A return to established principle might help to level off from the last twenty years’ downward spiral of the level of culpability required for secondary liability and prevent further problems in the law. At the very least, the law should recognise the situations where the validity or utility of the conduct by the secondary party makes the risk that it contributes to a crime taking place insufficient to justify criminal liability.
Jeffrey Lin and Joan Petersilia (University of Denver and Stanford University) have posted Follow the Money: How California Counties Are Spending Their Public Safety Realignment Funds on SSRN. Here is the abstract:
The California correctional system is undergoing a dramatic transformation under Assembly Bill 109 (“Realignment”), a law that shifted responsibility from the state to the counties for tens of thousands of offenders. To help manage this change, the state will distribute $4.4 billion to the counties by 2016-2017. While the legislation directs counties to use these funds for community-based programs, counties retain a substantial amount of spending discretion. Some are expanding offender treatment capacities, while others are shoring up enforcement and control apparatuses. In this report we examine counties’ AB 109 spending reports and budgets to determine which counties emphasize enforcement and which emphasize treatment. We also identify counties that continue to emphasize prior orientations toward punishment and counties that have shifted their priorities in response to Realignment. We then apply quantitative and comparative methods to county budget data to identify political, economic, and criminal justice-related factors that may explain higher AB 109 spending on enforcement or higher spending on treatment, relative to other counties. In short, our analysis shows that counties that elect to allocate more AB 109 funds to enforcement and control generally appear to be responding to local criminal justice needs, including high crime rates, a shortage of law enforcement personnel, and a historic preference for using prison to punish drug offenders. Counties that favor a greater investment in offender treatment and services, meanwhile, are typified by strong electoral support for the Sheriff and relatively under-funded district attorneys and probation departments.
Tuesday, February 25, 2014
Opinion upholding consent by occupant long after objecting co-occupant had been removed from premises
Allegra M. McLeod (Georgetown University Law Center) has posted The U.S. Criminal-Immigration Convergence and Its Possible Undoing (49 Am. Crim. L. Rev. 105-178 (2012)) on SSRN. Here is the abstract:
The intensifying convergence of U.S. criminal law and immigration law poses fundamental structural problems. This convergence -- which manifests in the criminal prosecution of immigration law violators, in deportation of criminal law violators, and in a growing immigration enforcement and detention apparatus -- distorts criminal law incentives and drains enforcement resources, misguides immigration regulation, and undermines efforts to implement alternative immigration regulatory frameworks. This Article offers an account, informed by social psychological and literary theory, of why this convergence persists notwithstanding these problems, as well as how the convergence (and inherently associated problems) might be undone.