CrimProf Blog

Government's argument for death penalty in Ft. Hood shootings

From CBS.com:

The government argued against the idea that a death sentence would result in martyrdom for Hasan. "He will never be a martyr because he has nothing to give. Do not be misled. Do not be fooled. He is not giving his life. We are taking his life. This is not his gift to God; this is his debt to society. This is not a charitable act. He is not now and never will be a martyr. He is a cold-blooded murderer," argued prosecutor Col. Michael Mulligan.

"Legal experts weigh in on Supreme Court case concerning Chemical Weapons Convention"

From a press release from Indiana University:

The case, Bond v. United States, involves the prosecution of Carol Ann Bond under criminal provisions in the Chemical Weapons Convention Implementation Act. Bond was convicted of federal crimes under the act for using toxic chemicals against a woman who had an affair with Bond's husband. The act criminalizes, among other things, using a "chemical weapon," defined as any "toxic chemical" that can "cause death, temporary incapacitation or permanent harm," except where the use involved activities intended for "peaceful purposes."

Bond challenged the federal government's interpretation of the Chemical Weapons Convention, asserting that the treaty did not apply to her case. But "Bond's suggestion that the Convention's reference to 'other peaceful purposes' permits all 'nonwarlike' uses is inconsistent with the Convention's plain terms," the brief states. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress' authority to enact legislation to implement a valid treaty, encroached on state authority for local criminal matters and thus violated principles of federalism.

 

"California Gov Brown finding monies for prisons seeking to avoid court-ordered prisoner release"

From Sentencing Law & Policy:

As reported in this new Los Angeles Times article, California Governor Jerry Brown is now finally taking major new steps to deal with enduring prison crowding issues in his state.   The piece is headlined, "Jerry Brown has plan to ease prison crowding without early releases; To comply with judges' order, Jerry Brown proposes to spend from state's reserve to house excess prisoners in alternate facilities." 

"DOJ to Defer Challenge to New State Marijuana Laws"

From TalkLeft:

The Department of Justice has officially spoken about state marijuana laws. It has advised the Governors of Colorado and Washington that provided it enacts robust regulations that do not not interfere with 8 DOJpriorities, it will "defer its right to challenge their legalization laws at this time."

AG Eric Holder has issued a memorandum to federal prosecutors (available here) on the new policy and the 8 priorities in enforcing federal marijuana laws.

The key point: The major sea change is not with respect to possession for personal use, which the feds don't normally charge anyway, but in its willingness to allow some private production and distribution of marijuana. 

 

Arkles on Marriage and Mass Incarceration

Gabriel Arkles (Northeastern University - School of Law) has posted Marriage and Mass Incarceration (New York University Review of Law & Social Change, Vol. 37, No. 1, pp. 13-21, 2013) on SSRN. Here is the abstract:

In considering marriage litigation, it is critical to consider its impact on the most vulnerable members of LGBT communities and on other marginalized communities. The skepticism in this article about the struggle for “same-sex” marriage is grounded in the author's work against criminalization and imprisonment, particularly as they affect transgender people of color. 

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Leary on Children, Sex Trafficking, and Technology

Mary Leary (Catholic University of America (CUA)) has posted Children, Sex Trafficking, and Technology: Lessons Learned from an Analysis of Federal Caselaw Since the Passage of the Trafficking Victims Protection Act on SSRN. Here is the abstract:

The scourge of child sex trafficking is as complex as it is alarming. It is speculated that the “Triple A Engine” effect of the Internet (Affordability, Access, and Anonymity) plays a role in the sex trafficking of children. For example, much media coverage and political action has recently taken place regarding online ad sites such as backpage.com facilitating child sex trafficking. However, as with many aspects of child sex trafficking, obtaining actual measurements and hard data is challenging due to the nature of the crime, the lack of a uniform description, and inherent under-reporting. That is why Microsoft Corporation awarded a competitive grant for this article to study the effects of technology on child sex trafficking.

One format, where such crimes are often described in detail is that of judicial opinions. The passage of the Trafficking Victims Protection Act (TVPA) in 2000, and its subsequent reauthorizations, has led to increased detection and prosecution of child sex trafficking on the federal level. The resulting body of judicial opinions is a potential wealth of information about current trends in the execution of the crime and detection by law enforcement.

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Borchert, Pinguelo & Thaw on the Stored Communications Act and Social Media

Christopher J. Borchert , Fernando M. Pinguelo and David Thaw (University of Connecticut - School of Law , SCARINCI HOLLENBECK, LLC and University of Connecticut School of Law) have posted Reasonable Expectations of Privacy Settings: Contemplating the Stored Communications Act Through the Prism of Social Media on SSRN. Here is the abstract:

The Stored Communications Act (SCA) provides additional protections for individuals' private communications content held in electronic storage by third parties. As technology has advanced since the SCA's passage, however, courts have struggled to understand the breadth of its application — often times inconsistently affording protection to similar private content sent using different technologies.

Modern information and communications technologies substantially enhance the way individuals communicate with one another. Provision of these services, however, necessarily requires that third parties store and have access to individuals' communications content — regardless of whether that content is private or public. In the 1980s, Congress recognized this growing trend, and out of direct concern for the implications of the Third-Party Records Doctrine, which generally eliminates Fourth Amendment protections for information entrusted to third parties, passed the SCA to provide individuals with greater protections.

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Vandervort on HIV, Fraud, Non-Disclosure, and Consent

Lucinda Vandervort (University of Saskatchewan) has posted HIV, Fraud, Non-Disclosure, Consent and a Stark Choice: Mabior or Sexual Autonomy? (Criminal Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

The reasons for judgment by the Supreme Court of Canada on the appeal in Mabior (2012 SCC 47) fail to address or resolve a number of significant questions. The reasons acknowledge the fundamental role of sexual consent in protecting sexual autonomy, equality, and human dignity, but do not use the law of consent as a tool to assist the Court in crafting a fresh approach to the issue on appeal. Instead the Court adopts the same general approach to analysis of the elements of aggravated sexual assault committed by fraud it used in 1998 in Cuerrier. Fifteen years later, it should be possible to re-conceptualize the problem in a more straightforward manner that reflects Charter values, fundamental common law principles, recent developments in sexual assault law, and the limitations and uncertainties of current HIV treatment and diagnosis.

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"Computer Science Professor Explains How Phone Call Metadata Can Be More Revealing Than Content"

From the Houston Chronicle:

On Monday Edward W. Felten, a professor of computer science and Director of Princeton's Center for Information Technology Policy (CITP), argued that the NSA is building a database that could reveal some of the most intimate secrets of American citizens.

“Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have, and even our civil and political affiliations,” Mr. Felten wrote in a legal brief filed in support of the ACLU's case.

Scott Shane of The New York Times reports that Felton added that sophisticated data analysis, which involves using software that can instantly trace chains of social connections to analyze data, can make metadata even more revealing than the contents of calls.

 

Gershowitz on Searching and Seizing a Cell Phone Incident to Arrest

Adam M. Gershowitz (William & Mary Law School) has posted Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem (William & Mary Bill of Rights, Vol. 22, 2014, Forthcoming) on SSRN. Here is the abstract:

Courts are deeply divided on the question of whether police can search a cell phone incident to arrest without a warrant. This essay argues that the Supreme Court should not authorize warrantless cell phone searches. However, the Court should allow law enforcement to seize cell phones without a warrant and immobilize the devices until a magistrate determines whether to issue a warrant. While a cell phone is in police custody, there are three ways for law enforcement to preserve the data and protect against remote destruction: (1) Police can use a data extraction device to download a copy of the phone's data; (2) The phone can be placed in an inexpensive bag called a Faraday cage that isolates the phone from outside communication and prevents remote wiping of the contents; or (3) Police can simply wrap the phone in aluminum foil to create the same protection as a Faraday cage at virtually no cost. Any of these methods will protect against remote destruction of evidence in almost all cases. And there is longstanding precedent to support a regime of warrantless seizures while a warrant request is pending. Allowing warrantless seizures and isolation of cell phones strikes a balance between the competing concerns of cell phone privacy and the need for police to preserve evidence.

LaVigne & Rybroek on How Defendants' Language Impairments Impair Attorney-Client Relationships

Michele LaVigne and Gregory Van Rybroek (University of Wisconsin Law School and Mendota Mental Health Institute) have posted 'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships (CUNY Law Review, Vol. 17, 2014) on SSRN. Here is the abstract:

Language impairments -- deficits in language and the ability to use it -- occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client's language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client's ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer's ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client's poor communication skills are not simply be "the lawyer's problem," but a matter of great concern for all stakeholders in the justice system.

Giannelli on Junk Science and the Execution of an Innocent Man

Paul C. Giannelli (Case Western Reserve University School of Law) has  posted Junk Science and the Execution of an Innocent Man (New York University Journal of Law & Liberty, Vol. 7, No. 2 (2013)) on SSRN. Here is the abstract:

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. 

The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor then attempted to derail an investigation by the Texas Forensic Science Commission into the arson evidence presented at Willingham’s trial.

"AP: NYPD has secretly labeled mosques as terrorist groups"

From Jurist:

The New York Police Department (NYPD) [official website; JURIST news archive] has secretly launched at least a dozen terrorism investigations into mosques since the 9/11 attacks [JURIST backgrounder], the Associated Press reported [text] Wednesday. By designating mosques as "terrorism enterprises," the AP claims the NYPD allowed police to spy on imams and mosque attendees without any specific evidence of criminal activity. According to the AP report, the NYPD's terrorism enterprise investigations orTEIs [materials, PDF] have often dragged on for years even though the NYPD has never criminally charged a mosque with terrorism. The AP also obtained documents showing that the NYPD planted informants on the boards of mosques and other Muslim organizations to spy on them. Mayor Michael Bloomberg and Police Commissioner Raymond Kelly [official websites] have denied any wrongdoing with respect to mosque surveillance.

"Predictive policing may help bag burglars—but it may also be a constitutional problem"

From the ABA Journal:

Imagine a police officer at roll call. He gets a printout stating that at a certain time, on a particular city block, there’s a certain percentage chance that a burglary will take place. Motivated by the odds, the officer heads over to that neighborhood around that very time. While there, he spots a man carrying a black bag.

Does the printout, combined with the officer’s observations, amount to reasonable suspicion such that the man could be appropriately stopped and searched? That’s just one example of the constitutional questions raised by the new, data-based approach to public safety known as predictive policing.

 

Robinson, Barton & Lister on Empirical Desert, Individual Prevention, and Limiting Retributivism

Paul H. Robinson , Joshua Samuel Barton and Matthew J. Lister (University of Pennsylvania Law School , Sullivan & Cromwell - New York Headquarters and University of Denver Sturm College of Law) have posted Empirical Desert, Individual Prevention, and Limiting Retributivism: A Reply on SSRN. Here is the abstract:

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert.

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Logan & Wright on Mercenary Criminal Justice

Wayne A. Logan and Ronald F. Wright (Florida State University - College of Law and Wake Forest University - School of Law) have posted Mercenary Criminal Justice (University of Illinois Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Today, a growing number of bill collectors are standing in line to collect on the debt that criminals owe to society. Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like. While legal financial obligations (LFOs) have long been a part of the criminal justice system, recent budget cutbacks have prompted an unprecedented surge in their use. The resulting funds are dedicated to sustaining and even expanding system operations. With this shift, criminal justice actors have become mercenaries, in effect working on commission. 

While a significant literature now exists on the adverse personal consequences of LFOs for offenders, this article is the first to examine their legal and institutional ramifications.

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Joh on Policing and Genetic Privacy

Elizabeth E. Joh (U.C. Davis School of Law) has posted Maryland v. King: Policing and Genetic Privacy (__ Ohio State Journal of Criminal Law __ (2013, Forthcoming)) on SSRN. Here is the abstract:

With its decision in Maryland v. King, the Supreme Court finally stepped into the debate about the use of DNA databases in the American criminal justice system. With King, the Court decided a newly emerging database issue rather than an old one: whether the Fourth Amendment prohibits the collection of DNA samples from arrestees without a warrant or any individualized suspicion. According to the five member King majority, such compulsory collections are reasonable Fourth Amendment searches, given the outcome of a balancing of interests between the individual and government. The problem with King is that it may become influential in ways that weren’t fully contemplated by the Supreme Court. While some may lament the micromanagement of policing by the modern Supreme Court’s jurisprudence, the reality is that police investigation practices are unevenly regulated. Indeed, what King reveals is the extent to which the Court leaves many matters untouched by Fourth Amendment constraints and subjects them, for better or worse, to the control of the other political branches (as well to likely squabbling in the lower courts). This essay discusses three notable revelations in the Court’s decision about the future of policing and genetic privacy. As the essay argues, what the Court introduces it also fails to regulate or even guide in any significant sense.

"Public Ignorance About Crime Rates"

Ilya Somin has this post at The Volokh Conspiracy. Addressing the causes and consequences of the public's overestimation of crime rates. In part:

Public overestimation of the crime rate can influence policy. On the right, people who believe that crime is worse than it actually is are probably more likely to support an aggressive War on Drugs, and to tolerate the massive militarization of the police that has arisen over the last thirty to forty years. On the left, inaccurate perceptions that gun crime is going up help fuel calls for stringent gun control measures.

"Federal appeals court rules request for lawyer cannot be used as evidence of guilt"

From Jurist:

The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Monday that a defendant's request for a lawyer may not be used as evidence of guilt. Tayfun Okatan was convicted on three counts relating to illegally bringing a German citizen into the US. When detained by an officer and asked whether he was attempting to bring someone into the country, Okatan requested a lawyer. The lower court barred the admission of all conversation that took place after his request was denied. The prosecution was, however, permitted to present the request itself as evidence against Okatan. The appeals court ruled that the prosecution's use of his request as evidence against him violated Okatan's Fifth Amendment [text] rights.

Jacobi, Richardson & Barr on the Attrition of Rights Under Parole

Tonja Jacobi , L. Song Richardson and Gregory Barr (Northwestern University - School of Law , University of Iowa - College of Law and Northwestern University - School of Law) have posted The Attrition of Rights Under Parole on SSRN. Here is the abstract:

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees’ Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees’ vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system mitigates the rights of non-parolees: family, co-tenants, and communities more broadly. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population and single-family status are accounted for. Furthermore, police take advantage of the permissive parole search jurisprudence, conducting more searches and arrests of both parolees and their non-parolee neighbors. Combined, this analysis shows that parole institutionalizes individuals and marginalizes communities.