Tuesday, January 22, 2008
From SSRN.com: South Texas College of Law CrimProf Adam M. Gershowitz recently published The IPhone Meets the Fourth Amendment. Here is the Abstract: Imagine that police arrest an individual
for a simple traffic infraction, such as running a stop sign. Under the
search incident to arrest doctrine, officers are entitled to search the
body of the person they are arresting to ensure that he does not have
any weapons or will not destroy any evidence.
The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.
This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. [Mark Godsey]
Monday, January 21, 2008
From SSRN.com: John Marshall Law School CrimProf Corey Rayburn Yung recently published " Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders." Here is the abstract:
Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live.
In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America.
Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society. [Mark Godsey]
Tuesday, December 25, 2007
Crimprof Jack Chin (Arizona) has written this draft on Yick Wo v. Hopkins. The abstract:
Yick Wo v. Hopkins is simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as both the first and last case in which the Supreme Court invalidated a prosecution as racially motivated. This essay explores why Yick Wo proved to be a dead end. It proposes that the traditional view of Yick Wo is mistaken: Yick Wo was about neither race discrimination nor prosecution. Yick Wo turned on the Court's treatment of the conduct at issue, operating a laundry, as a constitutionally protected property right. Therefore, a forgotten but large body of cases from the Jim Crow-era holds Yick Wo categorically inapplicable to prosecutions for conduct the state has the power to criminalize. In addition, because the property interest at stake was constitutionally protected, Yick Wo's race was irrelevant to the decision; a white person or corporation deprived of property would have had precisely the same claim. In fact Yick Wo's race was a barrier to rather than a basis for relief: He could raise a property claim only because he had a treaty right to operate a laundry on the basis of equality with others. When the treaty was inapplicable, the Supreme Court upheld race-based economic discrimination against Chinese and other Asians. Yick Wo is famous because it apparently foreshadows the anti-racist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, it is completely consistent with Plessy v. Ferguson, and stands for only the mundane point that a valid treaty trumps inconsistent state law.
Saturday, December 22, 2007
Crimprofs Ron Wright (Wake Forest) and Marc Miller (Arizona) have written the paper Dead Wrong, forthcoming as part of an innocence symposium at the Utah Law Review. The abstract: "DNA-driven exonerations offer many
lessons for police, for prosecutors, and for legislatures. Many
scholars have focused on novel procedures to identify and remedy
wrongful convictions after they occur. Scholars have also concluded
that in our administrative criminal justice system we need prosecutors
who are driven less by testosterone and more by a balanced search for
In our view, the most enduring changes to the work of prosecutors will focus not on softening their adversarial perspective, but on enhancing and staying true to the traditional core of their work on the front end of the process¿the charging decisions.
In our view, accuracy and honesty in criminal systems face mortal danger when a prosecutor decides what charges to file based on his or her individual assessment of the moral worth of criminal defendants or victims. We believe that errors flourish when the prosecutors' sentencing recommendations aim above all to reach a deal with the defendant to avoid trial, rather than pricing the specific crime that the evidence might prove.
To flesh out these assertions about prosecutors and outcomes we turn to a case study: two stories from Dallas, Texas. The first episode involves the work of the current District Attorney in Dallas to cooperate with the efforts of Innocence Projects as a remedy for an especially high rate of DNA exonerations from the office in recent years. We describe his efforts and explore the limits of after-the-fact remedies.
The second episode from Dallas came to light in a remarkable set of articles from the Dallas Morning News. These reports indicate that prosecutors in Dallas go forward with murder cases in too many cases that deserve lesser charges or no criminal charges at all. At the same time, the office requests probation as the sentence for a murder conviction far more often than other jurisdictions in Texas. In short, the charges and sentences in murder cases in Dallas appear to be both too high and too low. This pattern of outcomes in homicide cases is dead wrong.
We believe that unreliable charging is intimately related to the sort of injustice that drives the innocence movement. Put another way, the two episodes from Dallas are connected. The high level of DNA exonerations we find in Dallas grows out of a fixation on guilty pleas and an indifference to consistent and accurate application of the criminal code. We glimpse the same forces at work in the pattern of original charges and sentences in murder cases."
Paper available here.
Tuesday, December 4, 2007
From MSNBC.com: An extensive study from the National Academy of Science published in 2003 concluded that in a very controlled setting — say, with college students in a psychology lab — a polygraph can discriminate lying at “rates above chance.”
But the machine — which measures pulse, blood pressure, sweat and other physiological parameters — often fails in the real world. Countermeasures, or ways to cheat the test, are well known and widely available. That's why the National Academy of Sciences concluded that “polygraph test accuracy may be degraded by countermeasures, particularly when used by major security threats who have a strong incentive and sufficient resources to use them effectively.”
The Academy found that reliance on polygraph testing to screen government employees who may be potential security threats results in “too many loyal employees falsely judged deceptive and too many security threats left undetected.” Rest of Article. . . [Mark Godsey]
Sunday, November 25, 2007
From hsdailywire.com: Dutch researchers test the reliability of finger print biometrics by placing finger print scanner at three Dutch soccer stadiums for the purpose of identifying more than 6,000 "black listed" volunteers; the fingerprint system failed to spot 15 percent to 20 percent of those on a volunteer black-list.
Rest of Article. . . [Mark Godsey]
Friday, November 23, 2007
Boston University School of Law CrimProf Tracey Maclin recently published Police Interrogation During Traffic Stops: More Questions than Answers on SSRN. Here is the abstract:
This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.
Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the principle that the F! ourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.
In Mendez, however, Judge Reinhardt reversed circuit precedent and ruled that during routine traffic stops, police are free to questions motorists about any subject, provided such questioning does not prolong the length of the traffic stop. Judge Reinhardt's opinion was based on his reading of two Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005). Judge Michael McConnell has adopted the same rule for the Tenth Circuit in United States v. Stewart, 473 F. 3d 1265 (10th Cir. 2007).
The article explains how Judge Reinhardt and Judge McConnell have misread Caballes and Mena. Their rulings have not only given police the authority to arbitrarily question motorists about ! criminal behavior, but also directly contradict the Fourth Amendment command that an investigative intrusion must be strictly tied and justified by the circumstances which render its initiation permissible. The judges' interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio. [Mark Godsey]
Wednesday, October 24, 2007
New Article Spotlight: The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation
Florida Coastal School of Law CrimProf John F.G. Stinneford recently published an article titled The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation. Here is the Abstract:
"Very briefly, my argument is that the word unusual was a term of art that referred to government practices that
deviate from long usage. Under the common law ideology that came to
the framers through Coke, Blackstone, and various others, the best way
to determine whether a government practice comported with basic
principles of justice was to ask whether it enjoyed long usage - that
is, whether is was continuously employed throughout the jurisdiction
for a very long time. The opposite of a practice that enjoys long
usage is an unusual practice, or an innovation. The word unusual is included in the Cruel and Unusual Punishments Clause to direct
courts to give scrutiny to new or innovative punishment practices; the
assumption underlying the Clause being that when the government
innovates in the realm of punishment, it often does so in the direction
of greater cruelty.
The implications of recognizing the original meaning of unusual are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration - a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current standards of decency, which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word unusual, courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion."
CrimProf Stinneford comes to the Florida Coastal School of Law with a variety of experience in both law practice and teaching. He served as a law clerk to Judge James Moran of the United States District Court for the Northern District of Illinois, a litigation associate for the law firm Winston & Strawn, and as an Assistant United States Attorney for the Northern District of Illinois. He has also served as a member of the clinical faculty at the University of Chicago Law School, and the lawyering skills faculty at the University of Dayton School of Law. His primary teaching and research interests concern criminal law, criminal procedure, and sentencing policy. [Mark Godsey]
Tuesday, October 23, 2007
New Article Spotlight: "The Stepford Justices": The Need for Experiential Diversity on the Roberts Court
John Marshall Law School CrimProf Timothy P. O'Neill recently published "The Stepford Justices": The Need for Experiential Diversity on the Roberts Court. Here is the Abstract:
For the first time in history every Supreme Court justice has come directly from the same job: judge on the U.S. Court of Appeals. For the first time in history no justice has ever served in a legislature at any level of government. For the first time in history no justice has ever run for political office. For the first time in history eight of the nine justices have graduated from the same three Ivy League law schools.
This narrowness of experience on the Supreme Court is unprecedented. Our current Supreme Court can indeed be called The Stepford Justices.
This article traces this homogeneity to the failure of the Robert Bork nomination in 1987. Since Bork, Presidents have tried to sell their nominees as non-ideological legal technicians. At the same time, justices are actually being selected for the same reason they always have been - the hope that their decisions will reflect the political beliefs of the President and his party.
The result? An ideologically split Court that decided one-third of last Term's cases by 5 to 4 votes.
This article contends that Presidents - and the legal community - must be more honest about the role of ideology in the work of the Supreme Court. It draws from the work of the mathematician Kurt Godel to argue that the nature of the Supreme Court docket leads to decisions that are both true and at the same time unprovable. Technical legal skill is not as important as values and intuition.
The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners. This mix of justices with wide legal and governmental experience is vital for the effective functioning of the nation's highest collegial court. [Mark Godsey]
Tuesday, October 16, 2007
Josh Bowers of Chicago has posted the above titled paper on SSRN. Here's the abstract:
Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs (and to its one-dimensional focus on incarceration). Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a plea of guilty and is enrolled in a long-term outpatient treatment program that is closely supervised by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. My premise is that drug courts provide particularly poor results for the very defendants that they are intended to help most. Specifically, the most likely participants to graduate are volitional drug users, who strategically game exit from undesired conventional punishment and game entry into treatment that they, in fact, do not need. By contrast, the most likely treatment failures are genuine addicts and members of historically disadvantaged groups, who thereafter receive harsh termination sentences that often outstrip conventional plea prices. In short, drug courts are contraindicated for target populations and may thereby lead to longer sentences for the very defendants who traditionally have filled prisons under the conventional war on drugs.
Monday, October 15, 2007
Hofstra CrimProf Alafair S. Burkee has posted the above-titled article SSRN. Here's the abstract:
The standard account in support of plea bargaining is that it reflects both likely trial and sentencing outcomes, but a growing literature explores the ways in which plea negotiations are influenced by factors other than the likelihood of conviction and the probable post-trial sentence. For example, structural factors such as limited pre-trial discovery, attorney self-interest and incompetence, pretrial detention, and determinate sentencing can affect the parties' willingness and power to negotiate. Several scholars have also observed the ways that psychological and cognitive factors, such as overconfidence, denial, information barriers, framing, anchoring, and risk aversion, can influence plea bargaining. Previous examinations of the influence of cognitive bias on plea bargaining have focused primarily on the decision making of defendants. This Article, a contribution to Marquette Law Review's symposium on plea bargaining, seeks to contribute an additional dimension to the understanding of plea bargaining dynamics by exploring influences on the decision making of prosecutors.
A central tenet of plea bargaining is that prosecutors are willing to negotiate settlements to free up trial resources for other cases. Accordingly, the first step in this Article's exploration of prosecutorial decision making in plea bargaining is an examination of the factors that drive a prosecutor's prioritization of cases. Specifically, Part I argues that prosecutors prioritize cases in part by the amount of passion they feel in each case. Prosecutorial passion - how much a prosecutor “cares” about a case - is an undefined and unexplored factor in the current literature, and reflects subjective determinations beyond the strength of a case's evidence or its likely post-conviction sentence.
Part II explores the ways that prosecutorial passion might affect plea bargaining. First, passion might create a conscious aversion to plea bargaining in prosecutors. Second, even when a passionate prosecutor believes she desires settlement, passion might trigger or exaggerate cognitive biases that will make settlement less likely, such as selective information processing, loss aversion, framing, overoptimism, hindsight bias, anchoring, and the sunk cost fallacy. Part III concludes with some brief thoughts regarding the implications of prosecutorial passion for plea bargaining reform.
Monday, October 8, 2007
The ability of juveniles to participate fully in the judicial system is often controversial. Add in some issue of incompetence, and the legal issues become even murkier.
Janet I. Warren, professor of psychiatry and neurobehavioral sciences and associate director of the Institute of Law, Psychiatry and Public Policy, has received a grant to further explore issues involving juvenile competency—specifically, to assist in the implementation and evaluation of a system for treating youth who have been determined incompetent to stand trial. Warren received $435,000 for the first of four years from the Virginia Department of Criminal Justice Services, drawn from federal funds from the National Office of Juvenile Justice and Delinquency Prevention.
The award also will enable the institute to study the clinical and developmental factors that affect the capacity of impaired children and adolescents to assist their lawyers and make decisions.
Observing that competence to stand trial is the most common form of pre-trial forensic evaluation conducted with adults, Warren said, “We are only beginning to understand the many psychological factors that affect a youth’s ability to navigate through a court process with the degree of understanding needed to assure a fair trial and protect other rights guaranteed to all people, whatever their age, by the U.S. Constitution.” [Mark Godsey]
Thursday, September 27, 2007
The Denver University Law Review is proud to present a special federal sentencing survey.
On June 21, 2007, the United States Supreme Court handed down Rita v. United States, an important opinion addressing federal sentencing practices in the aftermath of the Court’s landmark 2005 decision in United States v. Booker. Shortly thereafter, the Denver University Law Review solicited articles from top sentencing scholars, experts, and judges on Rita and how it changed (or did not change) the federal sentencing landscape.
The articles merit special attention as the Supreme Court prepares to take up closely-related sentencing issues again in its upcoming Term. On October 2, 2007, the Court will hear oral argument in Gall v. United States and in Kimbrough v. United States, two important cases in the continued evolution of the Court’s federal sentencing jurisprudence. Visit the Site. . . [Mark Godsey]
Thursday, September 20, 2007
From latimes.com: As many as one in six deaths of California prison inmates last year might have been preventable, according to a study of medical care in 32 state lockups that will be used to help rebuild the troubled system.
The report, released Wednesday by the court-appointed receiver in charge of healthcare for the state's 173,000 prisoners, revealed a broad pattern of delays in diagnosis, poor inmate access to doctors and tests, botched handling of medical records, and failure of medical staff to recognize and treat dangerous conditions.
Officials said some lapses led to disciplinary actions against doctors and nurses.
There were 426 deaths in 2006, including 43 suicides, and the study examined 381 of them.
Eighteen deaths were found to be preventable, meaning better medical management or a better system of care would have prevented deaths. An additional 48 were found to be "possibly preventable," meaning better medical management of a system of care might have prevented death.
Of the deaths considered preventable, six were from asthma, which receiver Robert Sillen said he intended to make a priority for reforms.
"The leading cause of [preventable] death being asthma is unconscionable, and it is evidence of systemic problems and problems with individual clinical judgments," Sillen said in an interview. "Adults in 21st century California should not have asthma as a primary cause of death."
Sillen said the report, which concluded that problems such as human error, staffing shortages and poor medical records contributed to unnecessary deaths, provided additional evidence that the state's $1.5-billion-a-year medical care system needed to be rebuilt from the bottom up.
Rest of Article. . . [Mark Godsey]
Thursday, September 13, 2007
In recent years, the grand jury has been overly criticized and underutilized. While many recent scholars have proposed reforms that would re-invigorate the grand jury, most of these reforms are ill-designed and unmoored to the historical purposes of the grand jury. In an era of plea bargains, the grand jury has the potential to serve a crucial role in insuring popular legitimacy in the criminal justice system. While much of the existing rhetoric about the grand jury is wrong, some criticism of the institution is certainly due.
As the United States has become more diverse, the grand jury has lost its role as “the voice of the community” and become instead a melting pot in which each community's voice is lost amid a cacophony of voices from other communities. Since a grand jury functions by majority vote and is now generally drawn from the entire jurisdiction, the grand jury no longer serves as a counter-majoritarian force of the local community against central authority.
The gradual homogenization of the grand jury may have had a particularly strong impact on minority communities where legitimacy issues are most serious. Ironically, it was well-intentioned efforts to insure diversity in criminal justice – through the rule that trial juries should be drawn from panels representing a “fair cross-section of the community” – that undermined the grand jury's role when this rule was unthinkingly imported into the grand jury context.
No jurisdiction is just one community, and no grand jury can serve its purpose of representing any community if it is drawn from all communities. The proper way to restore the grand jury is neither to manipulate grand jury evidentiary rules nor to adopt any other reforms that have been proposed in recent years, but instead to insure that the grand jury represents an actual community. Grand juries must be reconstituted so that each grand jury represents a neighborhood, an actual community of people who are concerned about local issues of criminal justice. [Mark Godsey]
Sunday, September 9, 2007
New Article Spotlight: Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes
From elsblog.org and SSRN.com: Cornell Law School CrimProfs Ted Eisenberg and Valerie Hans recently circulateda paper entitled: "Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes" Here is the abstract:
This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit.
Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified.
After controlling for evidentiary strength and other factors, statistically significant associations exist (1) between the existence of a criminal record and the decision to testify at trial, (2) between the defendant testifying at trial and the jury learning about the defendant's prior record, and (3) in cases with weak evidence, between the jury learning of a criminal record and conviction. For cases with strong evidence against defendants, learning of criminal records is not strongly associated with conviction rates.
Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. Use of prior record evidence may therefore lead to erroneous convictions. Prosecutors and judges should consider the increased likelihood of erroneous conviction based on use of prior convictions in decisions to prosecute and in evidentiary rulings. [Mark Godsey]
Monday, August 6, 2007
John Marshall Law School CrimProf Timothy P. O'Neill recently published on SSRN "Scalia's Poker: Puzzles and Mysteries in Constitutional Interpretation." Here is the abstract:
This paper applies the recently-developed political science dichotomy of puzzles and mysteries to constitutional law. A puzzle can be definitively answered by gathering information about events that have already occurred. It is transmitter-dependent, since its solution depends on what information is received.
A mystery, on the other hand, cannot be answered with certainty even in principle. The solution may depend on events which have not yet occurred. It is receiver-dependent, since its solution will depend on the skill of the person evaluating the information received.
In law, the meaning of a constitutional provision such as the Due Process Clause may be viewed as either a puzzle or a mystery. Moreover, justices such as Antonin Scalia and Stephen Breyer may be said to view all constitutional interpretation as either a puzzle or a mystery, respectively.
The paper contends that, in terms of Isaiah Berlin's famous characterization, puzzle justices may exhibit hedgehog-like behavior, while mystery justices may be more fox-like. The paper concludes by examining what the impact of this may be on relations within a collegial court. [Mark Godsey]
Monday, July 23, 2007
"In this empirical study, I examine for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through post-conviction DNA testing. The data that I collected tells the story of this unique group of exonerees, starting with their criminal trials, moving through several levels of direct appeals and habeas corpus review, and ending with their eventual exonerations.
Beginning with the trials of these exonerees, I examine why they were wrongly convicted. The leading types of evidence supporting their wrongful convictions were erroneous eyewitness identifications, faulty forensic evidence, informant testimony, and false confessions. Yet I show that our system of criminal appeals poorly addressed this factual evidence.
Surprisingly few innocent appellants brought claims regarding those facts, nor did many bring claims alleging their innocence. For those who did, hardly any claims were granted by appellate courts. Far from recognizing innocence, courts often denied relief by finding error to be harmless on account of the appellant's guilt. Criminal appeals brought before they proved their innocence using DNA yielded apparently high numbers of reversals—a fourteen percent reversal rate.
However, I show that the reversal rate is indistinguishable from the background rate in appeals of comparable rape and murder convictions; thus our system may produce high rates of reversible errors during rape and murder trials. Finally, I develop how even after DNA testing was available, innocent appellants had difficulty ultimately receiving relief. These findings all describe how our criminal system failed to effectively review unreliable factual evidence, and as a result, misjudged innocence.
Thursday, June 21, 2007
From NPR.com: Author Kevin Davis discusses his book, Defending the Damned: Inside Chicago's Cook County Public Defender's Office. Davis shadowed Chicago's elite murder task force, the public defenders who represent accused rapists and serial killers who have the deck — and often the evidence — stacked against them. Listen. . . [Mark Godsey]
Thursday, May 17, 2007
Louisiana State University CrimProf Stuart Green recently released Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime.
His book navigates the ambiguity of white-collar crimes by examining the underlying moral fabric and illuminating what conduct is worthy of punishment by criminal sanction.
More from OUPBlog. . . [Mark Godsey]