Tuesday, March 4, 2014
Elizabeth Berenguer Megale (Savannah Law School) has posted A Call for Change: A Contextual-Configurative Analysis of Florida's 'Stand Your Ground' Laws (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
Florida’s Stand Your Ground has stood center stage since the tragic killing of Trayvon Martin. On the one hand, certain sectors of society are calling for its repeal, and on the other, proponents vigorously defended its value and efficacy. Despite the public outcry for reform, every attempt to repeal or change the law has been defeated. This Article examines whether Florida’s Stand Your Ground law is inconsistent with commonly-held societal values, and if so, what might prompt a change in the law.
Jonathan Abel (Stanford Law School - Constitutional Law Center) has posted Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries (101 GEO. L.J. 1171 (2013)) on SSRN. Here is the abstract:
The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development.
Monday, March 3, 2014
Dzhokhar Tsarnaev's defense lawyers have filed a motion (available here) renewing its request to lift the SAMs (special administrative measures) imposed by the Bureau of Prisons and to compel the Government to use a "taint team." The motion says "the defense is encountering obstacles related to FBI monitoring of family visits and BOP screening of materials that defense counsel need to review with the defendant."
Privacy advocates had grown frustrated in recent months as Senate legislation that would curtail the email powers of law enforcement was thrown off track amid revelations about National Security Agency surveillance.
But they are increasingly optimistic that an update to the 1986 Electronic Communications Privacy Act (ECPA) — which allows law enforcement agencies to obtain things like emails without a warrant if they have been stored electronically for more than 180 days — could see action in the House.
The New York Times has this article In part:
Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.
. . .
Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas
Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.
Joan Petersilia , Sara Abarbanel , John S Butler , Mark Feldman , Mariam Hinds , Kevin E Jason , Corinne Keel , Matt J Owens and Camden Vilkin (Stanford University , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center , Stanford University - Criminal Justice Center and Stanford University - Criminal Justice Center) have posted Voices from the Field: How California Stakeholders View Public Safety Realignment on SSRN. Here is the abstract:
Passage of California’s Public Safety Realignment Act (AB 109) initiated the most sweeping correctional experiment in recent history. Launched on October 1, 2011, Realignment shifted responsibility for most lower-level offenders from the state to California’s 58 counties. By mid-2013, more than 100,000 felons had been diverted from state prison to county jail or probation.
This report summarizes the results of interviews conducted with California stakeholders responsible for implementing the law.
Christine S. Scott-Hayward (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management) has posted Shadow Sentencing: The Imposition of Supervised Release (18 Berkeley J. Crim. L. 180, 2014) on SSRN. Here is the abstract:
More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release. Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant. Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections. The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.
Amanda J. Peters (South Texas College of Law) has posted Modern Prostitution Legal Reform and the Return of Volitional Consent on SSRN. Here is the abstract:
For decades, prostitution laws in America have focused exclusively on contractual consent: the agreement to exchange sexual services for a fee. Courts and legislatures alike ignored volitional consent, or traditional mens rea, by concentrating on the offer and acceptance of the prostitution agreement. In this way, the law disregarded the actor’s choice to engage in the crime. The de facto strict liability nature of the offense rendered it nearly impossible for prostitutes to successfully raise the defenses of duress and necessity. The failure of the law to distinguish between voluntary and involuntary prostitution resulted in charges, trials, and convictions against involuntary actors.
Sunday, March 2, 2014
Social media monitoring started in the world of marketing, allowing companies to track what people were saying about their brands. But now, with software that allows users to scan huge volumes of public postings on social media, police are starting to embrace it as well.
|1||641||In Search of Effective Ethics & Compliance Programs
Maurice E. Stucke,
University of Tennessee College of Law,
Date posted to database: December 12, 2013
|2||281||The Legality of the National Security Agency's Bulk Data Surveillance Programs
University of California at Berkeley School of Law,
Date posted to database: December 19, 2013 [3rd last week]
|3||276||Removal Defense and Florida Drug Crimes: Applying the Categorical Approach
Rebecca A. Sharpless,
University of Miami - School of Law,
Date posted to database: January 11, 2014 [2nd last week]
|4||261||The Trial of Dorian Gray
University of Toronto - Faculty of Law,
Date posted to database: January 4, 2014
|5||205||Criminalizing Revenge Porn
Danielle Keats Citron, Mary Anne Franks,
University of Maryland - Francis King Carey School of Law, University of Miami School of Law,
Date posted to database: December 19, 2013
|6||196||Death Row Confessions and the Last Meal Test of Innocence
Brian Wansink, Kevin M. Kniffin,
Cornell University - Dyson School of Applied Economics and Management, Cornell University,
Date posted to database: December 31, 2013
|7||189||The Fourth Amendment in the October 2012 Term
Gonzaga University School of Law,
Date posted to database: January 12, 2014
|8||189||Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism
Justin D. Levinson, Robert J. Smith, Zoe Robinson,
University of North Carolina School of Law, University of Hawaii at Manoa - William S. Richardson School of Law, DePaul University College of Law,
Date posted to database: January 27, 2014
|9||186||The Illusory Eighth Amendment
John F. Stinneford,
University of Florida Levin College of Law,
Date posted to database: February 7, 2014
|10||178||Intellectual Property and the Presumption of Innocence
Irina D. Manta,
Hofstra University - Maurice A. Deane School of Law,
Date posted to database: February 5, 2014 [new to top ten]
This recent Reuters story is interesting:
A Georgia man who last November shot and killed a 72-year-old Alzheimer's patient who rang at his front door will not be charged with a crime because the homeowner feared for his safety, a county prosecutor said on Friday.
. . .
Under Georgia's 2006 "stand your ground" self-defense law, citizens have no duty to retreat if they feel threatened, in or outside the home, Franklin said.
If you read further, you are told that the victim didn't stop at ringing the front doorbell, but also went around the side and back of the house. When he was ordered at gunpoint to stop advancing, he was shot. You never find out that "stand your ground" laws are not the source of the rule that people don't need to retreat from their own homes before employing deadly force.
Issue summaries are from ScotusBlog, which also links to papers:
- Hall v. Florida: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.
- Plumhoff v. Rickard: (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.
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.