Friday, February 5, 2016
“Law is a way of reimagining the real.” – Cultural Anthropologist Clifford Geertz
A ‘stickiness principle’ has shaped Fourth Amendment jurisprudence. According to this principle, different concepts, facts and assumptions about reality often adhere to each other. This stickiness is particularly evident in pre-digital court opinions, and often is revealed in the vocabulary used to describe items in the physical world, suggesting items had only a single function. For example, the function of sunglasses was to block the sun. Wrist watches were intended to tell time. Cars provided transportation.
Fourth Amendment privacy mostly dwelt within bright-line boundaries, such as those provided by doors and walls. When questions about digital privacy were at issue, the Supreme Court often struck a similar note, sticking to spatial notions of long-established physical world understandings. In the recent case of United States v. Jones, for example, Justice Scalia, writing for the majority, viewed a GPS tracker placed by the police on a private car without permission as a trespass, essentially ignoring the functional capacity of the device to track the auto for weeks at a time. Jones and other cases served as evidence of the continuing vitality of the Stickiness Principle, not its demise.
Jennifer L. Skeem , John Monahan and Christopher T. Lowenkamp (University of California, Berkeley , University of Virginia School of Law and Government of the United States of America - Administrative Office of the U.S. Courts) have posted Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men on SSRN. Here is the abstract:
Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning. Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d=.32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.
Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.
This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model.
Thursday, February 4, 2016
Orin Kerr has this post at ScotusBlog previewing an upcoming oral argument. In part:
Formally speaking, Utah v. Strieff considers the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. More specifically, here’s the doctrinal question presented: Does the exclusionary rule apply when an officer learns during an illegal Terry stop that that there is a warrant for the suspect’s arrest, he arrests the suspect on the warrant, and he finds incriminating evidence during the search incident to arrest?
As a practical matter, that’s a pretty important question. But this case is also about a big conceptual question: What is the future of the exclusionary rule? This is the Court’s first exclusionary rule case since Davis v. United States in 2011. Davis left the state of the law quite uncertain, giving this case the potential to be a major decision.
Wednesday, February 3, 2016
Max B Bernstein (Fordham University, School of Law, Students) has posted Erectile Dysfunction in Our Courts: Arousing Interest in Eliminating Mandated Penile Plethysmography Testing as a Condition of Supervised Release (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
Members of the scientific community have hotly debated PPG testing's reliability and validity since the 1980s. There is, however, a paucity of legal scholarship on the test. The lack of in-depth legal analysis of the PPG is troubling considering the test has been mandated as a condition of federal supervised release in nearly every federal circuit in the United States and is currently used in approximately one third of all U.S. sex offender treatment centers.
This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release.
Stephen E. Henderson (University of Oklahoma College of Law) has posted A Rose by Any Other Name: Regulating Law Enforcement Bulk Metadata Collection (94 Texas L. Rev. See Also 28 (2016)) on SSRN. Here is the abstract:
In Other People's Papers, Jane Bambauer argues for careful reform of the Fourth Amendment's third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law — including what I have termed a "limited" third party doctrine — and comparing and contrasting her recommendations to those of the American Bar Association Criminal Justice Standards, this article continues the project of formulating how best to regulate law enforcement access to bulk metadata, focusing on cell-site location. The Standards provide an array of access options, the application of which requires struggling with the meaning of relevance and reasonable suspicion in the world of big data and data mining. As scholars have warned and as the National Security Agency's interpretation of USA PATRIOT Act Section 215 has demonstrated, the courts and criminal justice community have work remaining in better defining the meaning of these core terms. My favored analysis suggests legislatures should consider permitting cell-tower dumps for a single point in time upon crime commission, but that for any longer durations they should require a means of selective revelation.
Police routinely use deception to get into people’s homes without warrant or probable cause. They may pose as UPS delivery persons or homebuyers, or they may say they are looking for a kidnapping victim or a pedophile, when really they are looking for drugs or guns. Recent years have brought hundreds of reported decisions concerning such police ruses.
When the police lie about their identity or their purpose to enter a home, as when they pose as a homebuyer, the courts surprisingly, but routinely, approve these deceptions under the Fourth Amendment. Such intrusions, the courts reason, do not violate a person’s reasonable expectation of privacy and therefore do not even trigger Fourth Amendment protection.
But the Supreme Court has announced a new Fourth Amendment test based on the civil law of trespass, and this new test promises to provide more Fourth Amendment protection against police deception. Now, under United States v. Jones and Florida v. Jardines, any time the police trespass to gain information, they trigger Fourth Amendment protections.
Tuesday, February 2, 2016
Adam Lamparello and Cynthia G Swann (Indiana Tech - Law School and Indiana Tech - Law School) have posted Birchfield v. North Dakota: Why the United States Supreme Court Should Rely on Riley v. California to Hold that Criminalizing a Suspect's Refusal to Consent to a Warrantless Blood Test Violates the Fourth Amendment on SSRN. Here is the abstract:
Although the interest in deterring drunk driving and protecting the public cannot be overstated, the importance of protecting privacy rights is far too often understated. In an era where technological advancements enable law enforcement to investigate criminal activity in a manner the Founders could not possibly foresee, few would doubt that the benefits of technology also bring grave threats to individual and collective liberty. However, as courts struggle to balance privacy rights with the investigatory powers that new technology enables, they must not overlook the more conventional threats to privacy, as present in Birchfield, that often lurk under the Fourth Amendment radar. States cannot – and should not – be allowed to weaken privacy protections through laws, such as N.D.C.C. §§39-20-1 and 39-08-01, compelling motorists, under threat of criminal prosecution, to consent to warrantless blood tests that, at least in some cases, are neither necessary nor reasonable. If N.D.C.C. §§39-20-1 and 39-08-01 are upheld, the Court will send a message that states can circumvent the Fourth Amendment with legislation that admittedly achieves worthy policy objectives, yet does so at the expense of core constitutional protections. In Riley, the Court’s decision recognized this fact, and implicit in its holding was the admonition that the objective of serving the public good, such as by deterring drunk driving, must not be achieved through procedures that make the public less free and the Constitution less relevant.
Meghan J. Ryan and John Adams (Southern Methodist University - Dedman School of Law and Southern Methodist University (SMU), Dedman School of Law, Students) have posted Cultivating Judgment on the Tools of Wrongful Conviction (Southern Methodist University Law Review, Vol. 68, No. 4, 2015) on SSRN. Here is the abstract:
Wrongful conviction remains a vexing problem. There are hundreds of reports of wrongful convictions from across the country, and the reasons for these mistakes run the gamut from faulty forensic science, to mistaken eyewitness identifications, to police or prosecutor misconduct. Yet establishing the legal or factual error necessary to achieve exoneration in these cases can be tremendously difficult. Wrongfully convicted defendants face a number of hurdles. Not only must they discover significant factual or legal error, but they also are straightjacketed by procedural impediments and appellate judges’ limited abilities to right wrongful convictions. Wrongfully convicted defendants are further constrained by a generally limited understanding of the sources of wrongful conviction and some legal decisionmakers’ reluctance to accept the significance of the wrongful conviction problem.
After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.
This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era.
Ralph Grunewald and Marvin Zalman (University of Wisconsin - Madison, Department of Comparative Literature and Folklore Studies and Wayne State University) have posted Reinventing the Trial: The Innocence Revolution and Proposals to Modify the American Criminal Trial (Texas A & M Law Review, Vol. 3, 2015-2016) on SSRN. Here is the abstract:
Law review articles by D. Michael Risinger, Tim Bakken, Keith Findley, Samuel Gross, and Christopher Slobogin have proposed modifications to pre-trial and trial procedures designed to reduce wrongful convictions. Some fit within the adversary model and others have “inquisitorial” features. We compare and evaluate the recommendations from the perspectives of lawyer-scholars trained in the United States and Germany. We examine the proposals for their novelty, feasibility, complexity, likely impact, and possible negative or positive side effects. One benefit of the article is simply to gather these innovative proposals in one place and compare them, to provide a platform for further analysis. The analysis will add our views to the discussion and will advocate the serious consideration of truth-enhancing procedural reforms.
Monday, February 1, 2016
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.
This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.
Wesley M. Oliver (Duquesne Law School) has posted Bill Cosby, the Lustful Disposition Exception, and the Doctrine of Chances (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:
With the filing of criminal charges against Bill Cosby in a case involving one victim, the question attracting a great deal of attention is whether other victims will be allowed to testify for the prosecution. Yes is the likely answer but probably for the wrong reasons. Generally the prosecution is forbidden to introduce other bad acts by a defendant, but there are certain categorical exceptions. Under federal law, any prior sexual misconduct can be admitted in the prosecution of a sex crime case -- a notion that the drafters of the Federal Rules of Evidence borrowed from something called the Lustful Disposition Exception in many states. Other states, such as the one in which Cosby will be tried, never formally had such an exception but had and have a soft version of the exception, very liberally admitting prior sexual misconduct in sex crime prosecutions under the modus operandi exception. The Lustful Disposition Exception has been rightfully criticized as too readily admitting otherwise forbidden character evidence. A rarely invoked principle of evidence law, the Doctrine of Chances, however better explains why the multiple Cosby accusers should be permitted to testify. This principle asks essentially what is the likelihood that the past act could be false and the present charge true. It is highly relevant that many accusers tell essentially the same story about their experiences with Bill Cosby. The Doctrine of Chances better captures why these accusers should be heard than a rule that merely asks, or heavily relies upon the fact that, the prior bad act was of a sexual nature.
Thomas H. Gabay has posted Using Johnson v. United States to Reframe Retroactivity for Second or Successive Collateral Motions (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
The Armed Career Criminal Act (the “ACCA”) provides a mandatory minimum sentence of fifteen years in federal prison for felons convicted of being in possession of a firearm, who have also been previously convicted three times of a “violent felony.” In Johnson v. United States the Supreme Court, per Justice Scalia, struck down one portion of this statute on the ground that it was unconstitutionally vague. This portion included, in addition to an enumerated list of “violent felonies” that can result in a conviction, a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
This Note examines whether federal prisoners, whose convictions and sentences under this now-unconstitutional prong of the ACCA were final before Johnson, and who have previously petitioned for habeas corpus, may again petition in federal court based on Johnson’s holding. In other words, the question, which has become the subject of a widening circuit split and is under review by the Supreme Court, is whether Johnson’s new rule about the unconstitutionality of the ACCA has been “made retroactive . . . by the Supreme Court” to federal prisoners seeking habeas corpus relief in federal court. This Note addresses this question and the circuit split that has emerged on the issue, and concludes that Johnson has indeed been “made retroactive.” Finally, this Note offers a modified framework within which courts may assess the retroactivity of new rules to second or successive habeas motions.
Sunday, January 31, 2016
|1||236||The Insanity Defense: Nine Myths that Will Not Go Away
Michael L. Perlin
New York Law School
Date posted to database: 16 Jan 2016 [new to top ten]
|2||165||The Constitution and Revenge Porn
John A. Humbach
Pace University School of Law
Date posted to database: 22 Dec 2015 [first last week]
|3||133||Neuroscience, Free Will, and Criminal Responsibility
University of Pennsylvania Law School
Date posted to database: 9 Dec 2015 [2nd last week]
|4||78||Addiction, Choice and Criminal Law
University of Pennsylvania Law School
Date posted to database: 16 Dec 2015 [3rd last week]
Northwestern University - School of Law
Date posted to database: 2 Jan 2016 [4th last week]
|6||66||Consenting to Computer Use
University of Maryland Francis King Carey School of Law
Date posted to database: 5 Jan 2016 [8th last week]
|7||65||Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket
Myriam E. Gilles
Benjamin N. Cardozo School of Law
Date posted to database: 6 Dec 2015 [5th last week]
|8||53||Commentary: Reflections on Remorse
University of Pennsylvania Law School
Date posted to database: 4 Dec 2015 [7th last week]
|9||49||Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience
University of Pennsylvania Law School
Date posted to database: 19 Dec 2015 [new to top ten]
|10||51||Two Views of First Amendment Thought Privacy
Adam J. Kolber
Brooklyn Law School
Date posted to database: 18 Jan 2016 [new to top ten]
Saturday, January 30, 2016
|1||519||The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment
James J. Duane
Regent University - School of Law
Date posted to database: 7 Jan 2016
|2||188||What's Missing from Sexual Assault Prevention and Response
Reggie D. Yager
Government of the United States of America - Judge Advocate General’s Corps
Date posted to database: 3 Dec 2015 [3rd last week]
|3||132||Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons
Neil L. Sobol
Texas A&M University - School of Law
Date posted to database: 16 Dec 2015 [5th last week]
|4||127||Civil Forfeiture and the Constitution
University of Virginia School of Law
Date posted to database: 11 Dec 2015
|5||120||Conviction Review Units: A National Perspective
University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice
Date posted to database: 24 Dec 2015 [10th last week]
|6||119||Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence?
Lilian Edwards and Lachlan Urquhart
University of Strathclyde Law School and University of Nottingham, School of Computer Science
Date posted to database: 16 Dec 2015
|7||79||In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems
University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Dec 2015 [9th last week]
|8||76||Interrogation and False Confessions in Rape Cases
Richard A. Leo
University of San Francisco - School of Law
Date posted to database: 9 Dec 2015 [new to top ten]
|9||73||Some Facts About Life: The Law, Theory, and Practice of Life Sentences
University of Houston Law Center
Date posted to database: 13 Dec 2015 [new to top ten]
|10||73||Orwell's Elephant and the Etiology of Wrongful Convictions
James M Doyle
Bassil, Klovee & Budreau
Date posted to database: 2 Jan 2016 [new to top ten]
Friday, January 29, 2016
John T. Holden and Ryan M. Rodenberg (Florida State University and Florida State University) have posted The Sports Bribery Act: A Law and Economics Approach (Northern Kentucky Law Review, Vol. 42, No. 3, 2015) on SSRN. Here is the abstract:
Sports bribery and match-fixing have become a part of the on-going sports news cycle. European and Asian match-fixing scandals in soccer, cricket and tennis have rocked the sports world recently. The 1919 Black Sox World Series scandal and the 1970’s Boston College point shaving incidents have illustrated that the manipulation of sporting events is a global scourge. This paper examines the corruption cases that led to the 1964 passage of the Sports Bribery Act (18 U.S.C. § 224). We discuss the scope of the statute, its operation with complementary and ancillary federal and state laws, and the reported instances of the statute’s application. The economic discussion focuses on Becker’s model for optimal deterrence, its application to the Sports Bribery Act, and an examination of the implications regarding the utility for would-be match-fixers. The paper concludes with a discussion of the challenges facing a policy change, including the complexity of regulating both professional and amateur sport, methods of detection, and jurisdictional issues raised by the global nature of match-fixing.
The annual Lara D. Gass Symposium at the Washington and Lee University School of Law will focus this year on the controversial case of Joseph M. Giarratano, using his story to explore the ethical, legal and public policy issues surrounding the use of the death penalty. The event is scheduled for Feb. 5-6 in the Millhiser Moot Court Room, Sydney Lewis Hall on the campus of Washington and Lee University. Except for the evening keynote dinner, which is by invitation only, the symposium proceedings are free and open to the public.
Giarratano was convicted of murder in 1979, but after his story drew national and international attention raising questions about his guilt, his death sentence was commuted to life by then-Gov. L. Douglas Wilder in 1991. However, then-Virginia Attorney General Mary Sue Terry denied a new trial for Giarratano. You can read more about Giarratano in a recent Richmond Times-Dispatch story covering his case and the symposium. Giarratano’s case raises several issues about death penalty decisions, including ineffective assistance of counsel, clemency, post-conviction relief, actual innocence, prison conditions, race and gender and the use of the death penalty on those with mental illness or intellectual disability.
Thursday, January 28, 2016
Jerg Gutmann (University of Hamburg - Institute of Law and Economics) has posted Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition on SSRN. Here is the abstract:
It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science. This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.
Miriam Gur-Arye (Hebrew University of Jerusalem - Faculty of Law) has posted The Impact of Moral Panic on the Criminal Justice System – Hit and Run Traffic Offenses as a Case Study (New Criminal Law Review (2016)) on SSRN. Here is the abstract:
The article reveals the relationship between the societal phenomenon of moral panic and the specific waves that it generates in the legal system. It focuses on hit and run traffic offenses and suggests that a moral panic with regard to these offenses uniquely impacted the Israeli criminal justice system during 2002-2013. The media generates concern, fear and outrage that are disproportionate to both the size and the nature of the offenses. In describing hit and run accidents, both the media and the courts demonize the drivers. Both the courts and the legislator react to the panic with disproportionally harsh punishments. The article also offers possible explanation as to why hit and run traffic offenses generated moral panic uniquely in Israel and why this occurred during the period 2002-2013. Although the article focuses on hit and run traffic offenses in Israel, it has more general implications: it reveals in detail the interaction between constructed public anxieties and systems charged with delivering justice.