Saturday, November 22, 2014
The story is in The New York Times:
Three people were charged with unlawful assembly overnight in protests in Ferguson, Mo., law enforcement authorities said early Saturday, as the St. Louis region awaits a grand jury’s decision on whether to indict a white police officer who shot an unarmed black teenager.
. . .
At various points, protesters blocked traffic outside the Ferguson Police Department and were told to clear the street. One group moved to an area along West Florissant Avenue, not far from where the shooting took place, and blocked traffic there. During that demonstration, a driver lost control and crashed a vehicle into a light pole, Brian Schellman, a spokesman for the St. Louis County police, said. Later, the group went back to the street near police department, where three people were arrested for refusing to move out of the street.
Friday, November 21, 2014
Schueren grabbed a cotton swab and dropped it into a plastic cartridge. That's what, say, a police officer would use to wipe the inside of your cheek to collect a DNA sample after an arrest, he explained. Other bits of material with traces of DNA on them, like cigarette butts or fabric, could work too. He inserted the cartridge into the machine and pressed a green button on its touch screen: "It's that simple." Ninety minutes later, the RapidHIT 200 would generate a DNA profile, check it against a database, and report on whether it found a match.
"Duty to retreat before using deadly force against would-be killer — but not against would-be robber"
Stephen Morris and Robert C. Robinson (Independent and City University of New York (CUNY)) have posted The Neuroscientific Case Against Retributive Justice on SSRN. Here is the abstract:
Retributive Justice is the theory of justice according to which individuals are either rewarded or punished as payback for the moral rights/wrongs they have committed. Consequentialist considerations such as deterrence and prevention do not figure into justifications for treatment from this perspective. This theory also holds that the severity of the punishment ought to be in proportion to the severity of the crime. The central tenant of the retributive model of justice -- namely, that reward/punishment gives people what they deserve -- relies crucially upon the intuition that people are sometimes accountable for their actions in some strong metaphysical sense. In particular, we may intuitively feel justified in holding someone morally responsible if her actions were intentional, rather than accidental or coerced. This common view is captured by what we call the "Principle of Retribution": i.e., the view that it is fair to hold an agent morally responsible, and therefore punish her for her crimes, only if her actions were freely willed, intentional, and uncoerced. It follows from this that unless free will exists for human beings, retributivist justice (at least insofar as human beings are concerned) cannot be justified.
The article is in The New York Times:
“Stash-house stings” like this one in 2013 have sent more than 1,000 of the country’s most “violent, hardened criminals” to prison, sometimes for terms of decades, according to the bureau, which has made a specialty of the ruses. The agency says it has conducted about 365 of these stings over the last decade, removing from the streets career criminals who are “willing to kill and be killed,” with less risk to agents and neighbors than raids on real stash houses.
But this year, the judge in this Los Angeles case dismissed the charges against two of the defendants on the rarely invoked grounds of “outrageous government conduct.” Judge Otis D. Wright II of Federal District Court described the bureau in his March decision as “trawling for crooks in seedy, poverty-ridden areas — all without an iota of suspicion that any particular person has committed similar conduct in the past.”
Similar prosecutions have nearly always held up in court, and the agency strongly defends its methods and choice of targets. But over the last year, a growing number of federal judges have questioned the tactic.
Thursday, November 20, 2014
The Supreme Court has concluded that the Fourth Amendment's protections do not apply to information that has been exposed to the public. This conclusion is deeply flawed and derives from the mistaken conflation of anonymity and privacy. Although anonymity and privacy are similar in that both maintain the secrecy of personal information, they differ in a fundamental and legally relevant way: privacy hides the information, whereas anonymity hides what makes it personal. Understanding this difference reveals compelling substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also "reasonable expectations of anonymity." Further, the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court's teaching that the Fourth Amendment "protects people, not places."
Eugene Volokh has this interesting post at The Volokh Conspiracy. In part:
The voluntary manslaughter post on Wednesday led to an interesting exchange with a colleague. Is the notion that certain kinds of killings in the “heat of passion” can justify treating the crime as voluntary manslaughter rather than murder defensible today? Or do we just keep the doctrine because of its historical pedigree?
Michael L. Perlin (New York Law School) has posted 'Power and Greed and the Corruptible Seed': Mental Disability, Prosecutorial Misconduct, and the Death Penalty on SSRN. Here is the abstract:
The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.
This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities.
Wednesday, November 19, 2014
Baltimore prosecutors withdrew key evidence in a robbery case Monday rather than reveal details of the cellphone tracking technology police used to gather it.
The surprise turn in Baltimore Circuit Court came after a defense attorney pressed a city police detective to reveal how officers had tracked his client.
City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a “nondisclosure agreement” with the FBI.
Rita Cheung (Chinese University of Hong Kong) has posted Insider Trading Sentencing: An Anglo-American Comparison ( Journal of Business Law 566-586) on SSRN. Here is the abstract:
This article compares and contrasts the amended section 2B1.4 of the US Federal Sentencing Guidelines with the English guideline judgment for insider trading and new definitive guidelines under the Coroners and Justice Act 2009. This article argues that the US law with its undue emphasis on gain as a core measure of harm is overly restrictive and unnecessarily complex. The ambiguity of the statutory language and the complexity of gain calculation compound confusion and create uncertainty, resulting in unwarranted sentencing disparities. The comprehensive sentencing guideline system currently being developed in England should be studied as a model for reform. Drawing heavily on the Anglo-American comparison, the article argues that the English model, while allowing a significantly greater degree of judicial flexibility than the US scheme, is consistent with the objectives of achieving greater consistency and fairness in sentencing, and would more accurately reflect the seriousness of the offence and the harm to the public and financial markets.
Avi M. Kupfer has posted A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle (113 Michigan Law Review 151 (2014)) on SSRN. Here is the abstract:
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime. This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.
Tuesday, November 18, 2014
From The New York Times:
Senate Republicans on Tuesday blocked a sweeping overhaul of the once-secret National Security Agency program that collects records of Americans’ phone calls in bulk.
Democrats and a handful of Republicans who supported the measure failed to secure the 60 votes they needed to take up the legislation. The vote was 58 to 42 for consideration.
Carmen M. Cusack (Nova Southeastern University) has posted Kent Make-Up Their Minds: Juveniles, Mental Illness, and the Need for Continued Implementation of Therapeutic Justice within the Juvenile Justice and Criminal Justice Systems (American University Journal of Gender, Social Policy & the Law, Vol. 22, p. 149, 2013) on SSRN. Here is the abstract:
This article discusses issues and promising solutions to the inundation of minors with mental illness into the juvenile justice (JJ) and criminal justice (CJ) systems. Minors, who have fewer rights than adults, require therapeutic justice to treat mental illness. In Section II, I analyze the precedence set by Kent v. U.S. for procedural due process in juvenile cases. In subsections A and B, I discuss how courts have applied Kent to issues that involved juvenile competency and consent for treatment. Many juveniles have been traumatized by abuse and other environmental factors. These children are not hardened criminals. The system should attempt to make them whole before castigating them as adults or deciding to waive them into criminal court. Section III discusses the role that trauma plays in recidivism and entanglements with the JJ and CJ systems. Section IV discusses criminalization of mental illness, as it relates to biological and environmental factors, and the justice systems. Therapeutic justice is essential for rehabilitating youth and adults who enter the system and require treatment. In Section V, I explain why therapeutic jurisprudence is about problem solving rather than punishment, with the primary goal of social justice. Section VI discusses mental health court and other programs for mentally ill juveniles in need of therapeutic justice. Section VII offers a new vision for the justice system’s treatment of mentally ill delinquents and offenders. This section suggests that society needs to continue shifting the roles of members of the court to a therapeutic position. It also suggests that we need to continue humanely building our response to mentally ill offenders at both the community and political levels.
FourthAmendment.com links to and excerpts and links to an article:
Judges in Pierce County, Washington, have now begun requiring law enforcement agencies to ask for specific permission when using a cell site simulator, commonly known as a “stingray,” according to a Saturday report by the Tacoma News Tribune.
Previously, as is the case nearly everywhere else in the country, law enforcement would go to a judge asking for a “pen register, trap and trace” order, which in the pre-cellphone era allowed law enforcement to obtain someone’s calling metadata in near real-time. Now, that same data can be gathered directly by the cops themselves through the use of a stingray used against mobile phones. Stingrays, however, also can be used to intercept calls and text messages, and the stingray doesn’t only work against one target phone but also against other phones that may happen to be nearby.
Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Why Crime Rates Are Falling Throughout the Western World (43 Crime & Justice, Forthcoming) on SSRN. Here is the abstract:
Crime rates have moved in parallel in Western societies since the late Middle Ages. Homicide rates declined from 20 to 100 per 100,000 population in western Europe to one per 100,000 in most Western countries by the beginning of the twentieth century. Crime rates in major cities and in countries fell from the early nineteenth century until the middle of the twentieth. From the 1960s to the 1990s, rates for violent and property crimes rose in all wealthy Western countries. Since then, rates in all have fallen precipitately for homicide, burglary, auto theft, and other property crimes. The patterns appear in both police and victimization data.
Monday, November 17, 2014
Amalia R. Miller and Carmit Segal (University of Virginia (UVA) - Department of Economics and University of Zurich - Department of Economics) have posted Do Female Officers Improve Law Enforcement Quality? Effects on Crime Reporting and Domestic Violence Escalation on SSRN. Here is the abstract:
We study the impact of the integration of women in US policing between the late 1970s and early 1990s on violent crime reporting and domestic violence escalation. Along these two key dimensions, we find that female officers improved police quality. Using crime victimization data, we find that as female representation increases among officers in an area, violent crimes against women in that area, and especially domestic violence, are reported to the police at significantly higher rates. There are no such effects for violent crimes against men or from increases in the female share among civilian police employees. Furthermore, we find evidence that female officers help prevent the escalation of domestic violence. Increases in female officer representation are followed by significant declines in intimate partner homicide rates and in rates of repeated domestic abuse. These effects are all consistent between fixed effects models with controls for economic and policy variables and models that focus exclusively on increases in female police employment driven by externally imposed affirmative action plans resulting from employment discrimination cases.
Miller W. Shealy Jr. (Charleston School of Law) has posted The Hunting of Man: Lies, Damn Lies, and Police Interrogations (University of Miami Race & Social Justice Law Review, Vol. 4, 2014) on SSRN. Here is the abstract:
The job of the police is to stop crime by stopping criminals. It is a real life, deadly cat-and-mouse game where the hunter and the hunted spar for advantage and success. To accomplish its goals, law enforcement can draw from a vast array of technologies, stratagems, and devices. One of the primary weapons in the law enforcement arsenal is deceit. Criminals, like most prey, are lured into clever traps set by police. The police create circumstances and situations that are designed to prompt the criminal suspect into revealing incriminating information. This is obvious in the use of confidential informants, undercover police officers, and other common police tactics. Suspects are “tricked” by police into revealing themselves. A controversial aspect of this kind of police “trickery” occurs in the interrogation context. What may police tell suspects to “trick” or prompt them into confessing? Can a police officer misrepresent the strength of the case against the suspect? Can an officer lie about the nature of incriminating evidence? Can an interrogating officer disguise his or her identity during the interrogation and pose as a family friend, priest, or someone friendly to the accused? This article will examine current police practices in the context of recent Supreme Court cases and social science findings.
Who has not heard or deployed the homely, everyday excuse “it was an accident”? How good an excuse is it, anyway? When do accidents get us partially off the hook for what we’ve done, and when do they extenuate our responsibility so fully that we are completely off the hook? Does the term “accidental” (“by accident,” “on accident,” “accidentally”) have point in law or just in life? If it does have point in law, what is its relation to other ascriptions of responsibility such as intentional, reasonable, foreseeable, foreseen, negligent, reckless (or their negations)?
Sunday, November 16, 2014