Tuesday, August 25, 2015
From The New York Times:
BALTIMORE — Eight months after the Justice Department announced new curbs on racial profiling, Maryland became on Tuesday the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.
. . .
Maryland law requires law enforcement agencies to have policies prohibiting racial and ethnic profiling during traffic stops; the new guidelines expand on that in two ways, Mr. Frosh’s office said. Under the law, officers may not use race and ethnicity in making police decisions; the guidelines also include national origin, identity, disability and religion as traits that may not be considered. They apply to routine operations, to investigations and to traffic stops.
Law enforcement officers may not consider personal characteristics while “conducting routine police activity,” the memorandum says. They may do so only if they have “credible information” that such characteristics are “directly relevant” to the investigation of a crime.
The story is at Jurist:
California lawmakers on Monday approved two bills intended to regulate drones. The Assembly voted 43-11 in favor of abill [SB 142] that would make it a crime to fly a drone over private property without permission. The Senate voted 40-0 to approve a bill[AB 856] targeted a paparazzi that would make it a crime to use a drone to take pictures or video on private property. Both bills return to the other chamber for a final vote.
Pat O'Malley (University of Sydney - Faculty of Law) has posted Rethinking Neoliberal Penality on SSRN. Here is the abstract:
The neoliberal penality thesis argues that over the past thirty years a major punitive shift has occurred, driven by the rise of neoliberal politics. While this thesis has been prominent for many years, it has recently been argued that it should be abandoned because of a dearth of consistent evidence supporting it. This paper analyses some recent developments in the critique of neoliberalism as a category and suggests that the term is used to refer to a diverse, labile and often inconsistent array of political rationalities. In turn, examination of the neoliberal penality thesis indicates as well that the linkages between ‘neoliberalism’ and penality are often vague or merely assumed, rendering the thesis highly problematic. Examination of work in the Chicago School on criminal justice - supposedly a major branch of neoliberalism - illustrates how such analysis should be carried out more rigorously. But it also shows that major variations in penology exist even within this apparently circumscribed and prominent ‘form’ of neoliberalism. It is argued that while ‘neoliberal penality’ may be retained as broad umbrella term, more specific uses should be abandoned.
Gowri Ramachandran (Southwestern Law School) has posted Delineating the Heinous: Rape, Sex, and Self-Possession (123 Yale Law Journal Online 371 (2013)) on SSRN. Here is the abstract:
In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as problematic as the sexual autonomy concept that Rubenfeld critiques. Alternately, if it represents the narrower concept of mind-body integration, it makes a principled distinction between rape and battery impossible. The solution is to acknowledge that rape is a sex crime, unique because sex carries distinctive risks and meanings.
Stephen E. Henderson (University of Oklahoma College of Law) has posted Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras) (Forthcoming in the U. Pa. J. Const. L. (2016)) on SSRN. Here is the abstract:
When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different from civilian equivalents that find their way into government hands, whether it be tomorrow’s drone flight, or today’s record of all of our internet activity compiled by our internet service provider, or a current record of all of our movements compiled by our mobile phone company? What of personalized time machines such as government over-seizure of digital data in every computer search? This Article considers the benefits and costs of these miraculous time-machine technologies, including as evidenced by several recent court opinions. Considering the very serious privacy implications — from the individual to the relational and societal — we have good reason to be wary of their coming ubiquity. Yet perhaps in very limited spheres we should welcome them, going so far as to entirely abandon front-end acquisition restrictions and rely solely upon ex post access, use, and disclosure limitations to protect the security in our persons, houses, papers, and effects. I suggest that one such sphere might be law enforcement body cameras, an instance in which full capture has great benefits, and via which we can experiment upon the utility of solely ex post restraints.
Monday, August 24, 2015
Orin Kerr has this post at The Volokh Conspiracy. In part:
Microsoft is challenging a federal search warrant for e-mails that Microsoft has stored on a server in Ireland. According to Microsoft’s brief, the issue is whether the Stored Communications Act (SCA) applies to data stored overseas. Microsoft argues that the SCA regulates data and is being impermissibly applied extraterritorially, so the warrant should not be allowed. The United States responds that the SCA applies and the warrant should be enforced because the SCA regulates providers inside the U.S.. If you accept this framing, which side should win depends on whether the territorial SCA regulates providers (in this case inside the U.S.) or regulates data (in this case outside the U.S.).
I think this framing may be based on a mistaken view of the SCA.
From The New York Times:
WASHINGTON — For the first time in decades, the F.B.I. is trying to fire an agent for intentionally shooting a suspect, after finding that the agent violated bureau policy when he wounded an unarmed man who had apparently helped break into his Lexus outside his home in Queens.
The agent, who was off duty, fired at the man from a second-story window, hitting him in the back. The man claimed that he was running away when the agent shot him, but a government investigation concluded otherwise. Still, the bureau deemed the decision to fire a “bad shoot,” in agents’ parlance.
. . .
Under the F.B.I.’s lethal force policy, agents may fire their weapons only if there is an imminent risk of death or serious bodily injury. A 12-member “shooting incident review group” that examined Mr. Kalicharan’s case said there was insufficient evidence to believe that a man “involved in a minor property crime out on the street” posed any immediate danger to people indoors and upstairs.
Sam Kamin and Justin F. Marceau (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Double Reasonableness and the Fourth Amendment (University of Miami Law Review, Vol. 68, No. 3, 2014) on SSRN. Here is the abstract:
Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework.
One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.
Kenneth W. Simons (University of California, Irvine School of Law) has posted Reluctant Pluralist: Moore on Negligence (Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kimberly Kessler Ferzan and Stephen J. Morse eds., Oxford University Press), 2015, Forthcoming) on SSRN. Here is the abstract:
Michael Moore has addressed the meaning and desirability of legal liability for negligence on several occasions. His early writings treat negligence as a consequentialist concept and as an appropriate basis for tort but not criminal liability. But in more recent writings, he is more pluralistic, recognizing that nonconsequentialist considerations play a proper role in tort negligence judgments, and tentatively endorsing negligence liability in criminal law as well. The evolution in his views is welcome. At the same time, neither Moore nor other scholars have yet provided a satisfactory account of this protean legal and moral concept. More attention should be paid to the questions whether negligence is a type of wrongdoing, a type of culpability, or both; and whether negligence differs from recklessness in kind or only in degree.
L. Song Richardson (University of California, Irvine School of Law) has posted Response: Implicit Racial Bias and the Perpetrator Perspective: A Response to Reasonable But Unconstitutional (George Washington Law Review, Vol. 83, No. 3, 2015, Forthcoming) on SSRN. Here is the abstract:
In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s existing jurisprudence when questions of race are concerned. First, their defense of pretextual policing is troubling because the practice likely will exacerbate the racial burdens that non-Whites experience at the hands of the police, even if conscious racial bias is non-existent. Furthermore, focusing solely on officers’ subjective racial motivations to determine whether discrimination has occurred ignores the victims’ experiences of profiling. In sum, the Court’s current conception of race discrimination is anemic and in urgent need of reform. Chin and Vernon’s arguments increase the likelihood that the Court will condemn racial discrimination as unreasonable under the Fourth Amendment. This would mark an important first step towards moving the Court to adopt a more realistic and broader conception of the harms of race discrimination.
|1||4,353||Concealed Carry Permit Holders Across the United States
John R. Lott, John E Whitley andRebekah C. Riley
Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center
Date posted to database: 20 Jul 2015
Date posted to database: 21 Jul 2015
|3||281||Gideon's Servants and the Criminalization of Poverty
Loyola Law School Los Angeles
Date posted to database: 28 Jun 2015 [4th last week]
|4||263||Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data
Orin S. Kerr
The George Washington University Law School
Date posted to database: 9 Jul 2015 [5th last week]
|5||248||An Economic Understanding of Search and Seizure Law
Orin S. Kerr
The George Washington University Law School
Date posted to database: 21 Jul 2015 [6th last week]
|6||178||Prison Abolition and Grounded Justice
Allegra M. McLeod
Georgetown University Law Center
Date posted to database: 2 Jul 2015 [7th last week]
|7||172||Sexuality and Incapacity
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 11 Jul 2015 [8th last week]
|8||116||The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection
Maureen E. Brady
Yale University - Law School
Date posted to database: 1 Jul 2015 [9th last week]
|9||96||A Reassessment of Common Law Protections for 'Idiots'
Michael A. Clemente
Yale University, Law School, Students
Date posted to database: 25 Jun 2015 [new to top ten]
|10||96||The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Adam M. Gershowitz
William & Mary Law School
Date posted to database: 23 Jul 2015 [new to top ten]
Sunday, August 23, 2015
Corinna Barrett Lain reports:
Richmond Law is looking to hire a criminal law professor whose focus is criminal adjudication (bail to jail). We’d love to get someone who has actually practiced criminal law (on either side), and demonstrated scholarly potential is a must. The slot is entry-level, but we’d consider lateral candidates with a strong publication record. Nominations & applications should be addressed to Jessica Erickson, chair of faculty appointments, at our faculty appointments email@example.com.
Cheryl Nelson-Butler (Southern Methodist University - Dedman School of Law) has posted A Critical Race Feminist Perspective on Prostitution & Sex Trafficking in America (Yale Journal of Law & Feminism, Vol. 27, No. 1, 2015) on SSRN. Here is the abstract:
This Article is one of the first to apply critical race feminism (CRF) to explore prostitution and sex trafficking in the United States. Several scholars have applied critical race feminism to explore several forms of sexual exploitation, including sexual harassment, domestic violence, and rape, but have yet to extend this discourse into the debate on prostitution and sex trafficking. Legal scholars have addressed prostitution and sex trafficking as gender oppression, while others have acknowledged the role of race in prostitution and trafficking in America. But few have considered prostitution from a critical race perspective, i.e., one that considers how race and gender intersect with other systems of oppression together to marginalize people of color in America. This Article applies critical race feminist theory to argue that racism intersects with other forms of structural oppression to obscure choice for people of color in America’s prostitution industry. America’s commercial sex industry perpetuates structural race, gender, and class-based inequalities. Racism and structural oppression trap a disproportionate number of women of color and girls of color into prostitution. Racism coerces women of color to engage in prostitution and obscures their consent. A critical race feminist lens informs our understanding of how traditional feminist discourse about prostitution has not fully considered the role of race, structural racism, and intersectional oppression in both the scholarly and policy discourse on prostitution. In contrast to dominant feminist narratives about prostitution, a critical race feminist perspective calls upon scholars and policymakers to focus on the role of racism and structural state sanctioned factors that push marginalized people of color into prostitution.
Saturday, August 22, 2015
Zaur D. Gajiev has posted Turmoil Surrounding the Self-Incrimination Clause: Why the Constitution Does Not Forbid Your Silence From Speaking Volumes (Faulkner Law Review, Vol. 6, 2015. Pages 231-81) on SSRN. Here is the abstract:
This Article explores the detrimental impact of Griffin v. California (1965), in which the Supreme Court prohibited prosecutors from commenting on a defendant's trial silence. In doing so, the Court deviated from the traditional Fifth Amendment "compulsion" analysis, and invented a "penalty" rationale that has caused turmoil in self-incrimination doctrine. Specifically, the ruling has caused substantial inconsistency in criminal cases involving pre-arrest silence, as lower courts are presently split on whether the Griffin rule extends to bar prosecutors from commenting on a defendant's pre-arrest silence. This is particularly concerning because the admissibility of a defendant's pre-arrest silence as substantive evidence of his guilt often makes the difference between acquittal and conviction.
This Article argues that although the rule against adverse comments on trial silence is widely accepted today, Griffin's "penalty" doctrine lacks a constitutional basis.
David M. Uhlmann (University of Michigan Law School) has posted The Pendulum Swings: Reconsidering Corporate Criminal Prosecution on SSRN. Here is the abstract:
For more than a decade, the Justice Department morphed its approach to corporate crime, eschewing criminal prosecutions in favor of deferred prosecution and non-prosecution agreements that allowed large corporations to avoid the ignominy of criminal convictions. There seemingly were no crimes that did not qualify for corporate absolution. Then, with public alarm increasing over the lack of criminal prosecutions for the financial crisis, the pendulum swung, and criminal prosecutions were back in vogue. In 2014, the Justice Department brought record-setting criminal prosecutions against two European banks for currency manipulation, followed by similar prosecutions against five American and European banks during 2015.
What explains the conflicted approach to criminal prosecution of corporations — and what does it reveal about the theoretical basis for corporate criminal liability? I argue that the Justice Department’s erratic approach reflects a lack of agreement among practitioners about what is accomplished by the criminal prosecution of corporations, a disagreement that also exists in scholarly accounts of corporate criminal liability focused on retributive and utilitarian purposes of punishment.
Friday, August 21, 2015
Shahabudeen Karamat Khan (Nova Southeastern University, Shepard Broad College of Law) has posted The Threat Lives on: How to Exclude Expectant Mothers from Prosecution for Mere Exposure of HIV to Their Fetuses and Infants (Cleveland State Law Review, Vol. 63, No. 2, 2015) on SSRN. Here is the abstract:
There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That is not necessary. This Article re-emphasizes the gravity of this problem and suggests that one critical step forward is to amend the laws to remove any threat of prosecution of mothers who are HIV positive.
Findlay Stark (University of Cambridge) has posted Regina v. Howe (1987): Heroism, Terrorism and Competence (Handler, Mares and Williams (eds), Landmark Cases in Criminal Law (Hart), Forthcoming) on SSRN. Here is the abstract:
In Howe (1987) the House of Lords held that duress is no defence to murder. The Lords relied upon three main arguments:
1. The Heroism Argument: citizens can legitimately be expected to sacrifice their own lives heroically, rather than take an innocent third party’s on the orders of a duressor.
2. The Terrorism Argument: duress must be unavailable lest terrorists or organised criminals cajole innocent citizens into carrying out murders.
3. The Competence Argument: courts should defer to the legislature when developing the common law in an area where doctrine is relatively clear, and the issues raised are viewed properly as controversial.
Thursday, August 20, 2015
Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet, judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its recent landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual autonomy, the right to intimate association, and the safeguarding of children, while also noting how the rights in question were simultaneously grounded in equal protection. “The Due Process Clause and the Equal Protection Clause are connected in a profound way,” Justice Anthony Kennedy wrote. What the Court did not do was to explain the connection. To redress harms to injured plaintiffs without creating doctrinal incoherence, courts need to understand the categorically distinct ways in which cumulative constitutional harm can occur and how these forms affect constitutional scrutiny. We argue that cumulative constitutional rights cases can be categorized into three general types and that these types need to be analyzed differently. The first type, aggregate harm, occurs when multiple discrete acts, taken together, add up to a harm of constitutional magnitude, even if each individual act, taken alone, would not. The second type, hybrid rights, occurs where a plaintiff claims a single action has violated rights under multiple constitutional provisions. If a court were to apply the proper level of scrutiny to the claims individually, however, none would result in redress. As a result, hybrid rights cases should not ordinarily result in relief. The third type, which we term intersectional rights, occur when the action violates more than one constitutional provision but is only cognizable when the provisions are read to inform and bolster one another. Our aim in this Essay is to provide a framework courts can use to analyze cumulative constitutional rights. While courts should be open to conducting a cumulative analysis, when constitutional rights are mutually reinforcing, those relationships should be clearly set out and defined.
Tali Gal (School of Criminology, University of Haifa) has posted Crime Victimization and Child Well-Being (in A. Ben-Arieh, I. Frones, F. Casas, J. Korbin (eds.), HANDBOOK OF CHILD WELL-BEING, Springer Science Dordrecht, pp. 2617 - 2652 (2013)) on SSRN. Here is the abstract:
This paper discusses the effects of crime on the well-being of victimized children and describes the therapeutic and anti-therapeutic effects of the criminal process on child victims. The chapter places these findings within the theoretical framework of a Needs — Rights Model for child victims developed by the author elsewhere (Gal 2011). The model integrates between a normative layer, based on relevant provisions from the UN Convention on the Rights of the Child, and an empirical layer, based on findings from the psycho-social literature on the needs of victimized children and the effects of crime on them. Constructed of four needs — rights clusters of protection, promotion of child’s well-being, control, and procedural justice, the model highlights a range of findings regarding the failure of Western criminal justice systems to protect and promote children’s wellbeing.
A large portion of the jail population consists of criminal defendants whose guilt has not yet been established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford a bond. As argued here, the explanation for this lies, in part, in the skewed incentives of trial judges.
This Article applies an agency cost model to bail, observing that the interests of judges diverge from those of their legislative principals, causing them to err on the side of detention and stiff bond requirements.