Friday, March 13, 2015
Elizabeth E. Joh and Thomas Wuil Joo (U.C. Davis School of Law and University of California - Davis Law School) have posted Sting Victims: Third-Party Harms in Undercover Police Operations (__ S. Cal. L. Rev. __ (2015, Forthcoming)) on SSRN. Here is the abstract:
While undercover operations by the police are familiar, the harm they can impose on third parties is not. When government agents impersonate criminals, they can impose personal, physical, financial, and reputational harms on victims wholly unrelated to their criminal investigation. A sham drug deal can lead to gunfire and an injured bystander. The mere existence of a government-run fencing operation can lead to increased property theft.
In a number of recent financial fraud investigations, FBI agents have conducted stings which they knew could harm unwitting investors. These stings targeted fraudulent price manipulation of “penny stocks”: low-priced stocks marketed and sold directly to the public rather than through stock exchanges. Typically, an undercover FBI agent offers to help a suspect inflate the price of a penny stock by purchasing a large number of shares for manipulative purposes in exchange for a kickback. Not only does the tactic result in an arrest, it can harm innocent investors who purchase stock at a price that was misleadingly inflated — by the government itself.
Sarah M. Buel (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted De Facto Witness Tampering (Berkeley Journal of Gender, Law & Justice, Vol. 29, No. 1, 2014) on SSRN. Here is the abstract:
De facto witness tampering matters because it fuels increased victim despair and danger, and its omission from discourse animates much regressive case law. Although present statutes address the most virulent and direct manifestations of witness tampering (WT), they miss the nuanced and less overt, but still dangerous, conduct that achieves the same unlawful ends. Many perpetrators of intimate partner violence (IPV) and human trafficking (HT) are exceptionally resourceful in their efforts to prevent victims from testifying against them, thus necessitating the expansion of remedial statutory schemes to recognize de facto witness tampering.
After briefly examining the doctrinal and normative aspects of de facto witness tampering, the Article describes the concept in practice, including “tipping point” tampering — such as victim grooming, financial sabotage, and cyberharassment.
Adam Lamparello (Indiana Tech - Law School) has posted Riley v. California: A Pyrrhic Victory for Privacy Rights? on SSRN. Here is the abstract:
In Riley v. California, the United States Supreme Court ushered privacy protections into the digital era and signaled that the Fourth Amendment would not become a constitutional afterthought. The Court unanimously held that, absent exigent circumstances, law enforcement officers could not search any area of an arrestee’s cell phone, including the outgoing call log, without a warrant and probable cause. At first glance, Riley appears to be a landmark decision in favor of individual privacy rights. As with most things, however, the devil is in the details, and the details in Riley make any celebration over the seemingly enhanced protections for privacy rights premature.
Thursday, March 12, 2015
Irus Braverman (State University of New York (SUNY), Buffalo, SUNY Buffalo Law School) has posted Rights of Passage: On Doors, Technology, and the Fourth Amendment (Law, Culture and the Humanities, 2015) on SSRN. Here is the abstract:
The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, I suggest that we might be witnessing the twilight of the “physical door” era and the beginning of a “virtual door” era in Fourth Amendment jurisprudence. As recent physical and technological changes present increasingly sophisticated challenges to the distinctions between inside and outside, private and public, and prohibited and accepted visions, the Supreme Court will need to carefully articulate what is worth protecting on the other side of the door.
Legal scholars today rightly criticize the lack of public participation in local policing as a barrier to true police accountability. When searching for solutions, however, scholars are often preoccupied with studying and perfecting consensus-based methods of participation such as community policing, neglecting the study of more adversarial, confrontational forms of local participation in policing. This article challenges the scholarly focus on consensus-based strategies of police accountability through an exploration of the phenomenon of organized copwatching – groups of local residents who wear uniforms, carry visible recording devices, patrol neighborhoods, and film police-citizen interactions in an effort to hold police departments accountable to the populations they police.
This article argues that the practice of copwatching illustrates both the promise of adversarialism as a form of civic engagement and the potential of traditionally powerless populations to contribute to constitutional norms governing police conduct.
Giulia Lasagni has posted Recalibrating Bank Criminal Investigations and Supervisory Oversight after the Financial Crisis: A Comparison between the U.S. and the E.U. (Criminal Law Bulletin, Forthcoming) on SSRN. Here is the abstract:
After the financial crisis of 2006-2007, a lot has been said in the U.S. as well as in Europe, about the main reasons that led to one of the most tragic global economy depressions of the century.
In the management of such a context, the efficiency of administrative bank oversight and banking criminal investigations gained a primary position, due to banks’ increasing role in all the financial markets worldwide.
This Essay will analyze the U.S. system resulting from the Dodd-Frank Act, comparing it with the reforms in progress in the European Union, characterized by increasing supervisory powers of the European Central Bank. The Essay asserts that the effort taken so far in both countries are only partially able to satisfy the goals set, due to the permanence of some structural problems, such as the uncoordinated overlapping of multiple supervisory agencies and the dependency of the funding systems to the same subjects the agency has to control.
Kaitlin Ek has posted Conspiracy and the Fantasy Defense: The Strange Case of the Cannibal Cop (Duke Law Journal, Vol. 64, No. 5, 2015) on SSRN. Here is the abstract:
In the notorious “Cannibal Cop” case, New York police officer Gilberto Valle was accused of conspiring to kidnap, kill, and eat various women of his acquaintance. Valle claimed a “fantasy defense,” arguing that his expression represented not conspiracy agreement, but fantasy role-play. His conviction and subsequent acquittal raised questions about the freedom of speech, thoughtcrime, and the nature of conspiracy law. Because the essence of conspiracy is agreement, it falls into the category of crimes in which pure speech is the actus reus of the offense. This Note argues that as a result, conspiracy cases in which the fantasy defense is implicated pose special due-process and First Amendment dangers, and concludes that these dangers can be mitigated by a strengthened overt-act requirement.
Jeannine Bell and Mona Lynch (Indiana University Maurer School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted Cross-Sectional Challenges: Gender, Race, and Six-Person Juries on SSRN. Here is the abstract:
John H. Blume (Cornell Law School) has posted How the 'Shackles' of Individual Ethics Prevents Structural Reform in the American Criminal Justice System on SSRN. Here is the abstract:
The core critique of the modern American Criminal Justice System is that the legislative and judicial expansion of the criminal law in the 1960's and 1970's has led to prosecutorial overcharging which has resulted in mass incarceration. Given the current state of affairs, prosecutors are able to extract guilty pleas in virtually all criminal cases: roughly 95% of all criminal defendants plead guilty. This essay posits that the focus on individual ethics, i.e., the criminal defense lawyer’s obligation to obtain the best result for each individual client, robs the defense bar of the most powerful tool available to them: the ability to collectively refuse to plead guilty. Due to the criminal justice’s systems’ inability to provide jury trials to even a significant percentage of criminal defendants, mass refusal of defense lawyers to negotiate guilty please would result in a much needed paradigm shift in criminal sentencing. The essay will then discuss obstacles to this type of collection action, as well as why, given the realities of representation of criminal defendants, it should be a tool available to criminal defense lawyers.
Wednesday, March 11, 2015
Stephen C. Thaman (Saint Louis University - School of Law) has posted Marxist and Soviet Law (The Oxford Handbook of Criminal Law (Markus D. Dubber and Tatjana Hörnle, eds.), Chpt. 14, 2014) on SSRN. Here is the abstract:
This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.
Elizabeth A. Sheehy (University of Ottawa - Common Law Section) has posted Defending Battered Women on Trial (Defending Battered Women on Trial: Lessons from the Transcripts (Vancouver: UBC Press, 2014), pp 1-18) on SSRN. Here is the abstract:
In the landmark Lavallee decision of 1990, the Supreme Court of Canada ruled that evidence of "battered woman syndrome" was admissible in establishing self-defence for women accused of killing their abusive partners. This book looks at the legal response to battered women who killed their partners in the fifteen years since Lavallee.
Elizabeth Sheehy uses trial transcripts and a detailed case study approach to tell, for the first time, the stories of eleven women, ten of whom killed their partners and one who did not. She looks at the barriers women face to "just leaving," how self-defence was argued in these cases, and which form of expert testimony was used to frame women's experience of battering. Drawing upon a rich expanse of research from many disciplines, including law, psychology, history, sociology, women's studies, and social work, she highlights the limitations of the law of self-defence, the successful strategies of defence lawyers, the costs to women undergoing a murder trial, and the serious difficulties of credibility that they face when testifying. In a final chapter, she proposes numerous reforms.
For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014. Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own. What are the politics of botched executions? Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place. In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them. I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States. Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.
Daniel Avdic and Christian Bünnings (Uppsala University and University of Duisburg-Essen - CINCH, Universität Duisburg-Essen) have posted Does the Burglar Also Disturb the Neighbor? Crime Spillovers on Individual Well-Being on SSRN. Here is the abstract:
Indirect psychological effects induced by crime are likely to contribute significantly to the total costs of crime beyond the financial costs of direct victimization. Using detailed crime statistics for the whole of Germany and linking them to individual-level mental health information from the German Socio-Economic Panel, we analyze whether local crime rates affect the mental health of residents. We estimate that a one standard deviation increase in local violent crime rates significantly decreases individual mental well-being among residents by, on average, one percent. Smaller effects are found for property and total crime rates. Results are insensitive to migration and not isolated to urban areas, but are rather driven by less densely populated regions. In contrast to previous literature on vulnerability to crime, we find that men, more educated and singles react more to variation in violent crime rates in their neighborhoods. One potential explanation could be that those who are more fearful of crime have developed better coping strategies and, hence, react less to changes in crime.
Alexandra Claudia Mateescu , Alex Rosenblat and danah boyd (Data & Society Research Institute , Data & Society Research Institute and Data & Society Research Institute) have posted Police Body-Worn Cameras on SSRN. Here is the abstract:
Police Body-Worn Cameras breaks down what’s known – and not known – about the promises, perils, and potential best practices around police body-worn cameras. Both law enforcement and civil rights advocates are excited by the potential of body-worn cameras to improve community policing and safety, but there is no empirical research to conclusively suggest that these will reduce the deaths of black male civilians in encounters with police. There are some documented milder benefits evident from small pilot studies, such as more polite interactions between police and civilians when both parties are aware they are being recorded, and decreased fraudulent complaints made against officers. Many uncertainties about best practices of body-worn camera adoption and use remain, including when the cameras should record, what should be stored and retained, who should have access to the footage, and what policies should determine the release of footage to the public. As pilot and permanent body-worn camera programs are implemented, it is important to ask questions about how they can be best used to achieve their touted goals. How will the implementation of these programs be assessed for their efficacy in achieving accountability goals? What are the best policies to have in place to support those goals?
Michael Kagan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Immigration Law's Looming Fourth Amendment Problem (Georgetown Law Journal, Vol. 104, Forthcoming) on SSRN. Here is the abstract:
In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional problem with the way America’s immigration enforcement apparatus has been constructed. This problem developed because for more than a century the plenary power doctrine permitted immigration law to exist in a parallel constitutional universe. But recent Supreme Court jurisprudence has substantially reduced the power of the plenary power doctrine to shield immigration enforcement from constitutional scrutiny. This article traces how immigration arrests have suddenly become vulnerable to challenge, and how the problem may be remedied by reinterpreting the Immigration and Nationality Act according to the doctrine of constitutional avoidance.
Guyora Binder (State University of New York (SUNY), Buffalo, SUNY Buffalo Law School) has posted The Coptown Case: Inviolable Status and Desert (Inherent and Instrumental Values, Excursions in Value Inquiry, G. John M. Abbarno, ed. University Press of America, 2015) on SSRN. Here is the abstract:
Francis Kamm has proposed a concept of inviolable status as a reason to value goods like life or deserved punishment that precludes maximizing trade-offs, but without resorting to agent relative constraints. According to this idea, one has an inviolable status in so far as one holds an entitlement that cannot be violated in order minimize violations of that entitlement. By sacrificing one person’s entitlement to protect the entitlements of others, one extinguishes the inviolable status of all. This concept is offered to explain deontological ethics as a practice of respecting the equal dignity of others. By presenting a series of hypothetical problems about the imposition of deserved punishment in the face of uncertainty, this paper denies that the deontologist can avoid trade-offs. In addition, the paper denies that inviolability offers any dignitary advantage over having one’s welfare counted in the utilitarian calculus.
Tuesday, March 10, 2015
Matthew Slaughter has posted Supreme Court's Treatment of Drug Detection Dogs Doesn't Pass the Sniff Test (18 NEW CRIM. L. REV. (2015, Forthcoming)) on SSRN. Here is the abstract:
The Court's classification of drug detection dogs in Caballes as sui generis is unsubstantiated. The Court in Caballes also determined that a dog sniff alone was sufficient to establish probable cause for a physical search inside a vehicle. The Court should revise this treatment and consider alternative proposals. Additionally the Court’s reliance in Florida v. Harris on blanket terms such as “bona fide organization” and “training program” illustrates the Justices’ incomprehension of the complexities involved in such a process. Finally, the Court in Harris inappropriately dismissed the very real financial incentive law enforcement has to maintain detection dogs that over alert.
James W. Ellis (University of New Mexico - School of Law) has posted Hall v. Florida: The Supreme Court's Guidance in Implementing Atkins (William & Mary Bill of Rights, Vol. 23, No. 2, 2014) on SSRN. Here is the abstract:
The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s calls, texts, snap chats, photos, calendar updates, and movements. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners.
Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, enforced. Existing law may be too restrictive to make a real difference.
Monday, March 9, 2015