Friday, October 31, 2014
A judge for the US District Court for the District of Arizona [official website] on Tuesday ordered Maricopa Country sheriff Joe Arpaio [official profile] to undergo the same training as his deputies to assist in the prevention of racial profiling and unlawful detention in the Maricopa County Sheriff's Office (MCSO) [official website] as part of the ongoing case against Arpaio for racial profiling. Recently, Arpaio made a statement[Reuters report] that he would have no problem conducting an immigration sweep akin to the police action performed in the town of Guadalupe in 2008, which was later deemed unconstitutional by a federal court. The judge stated Arpaio's comments undermined the MCSO's efforts to comply with heightened standards against racial profiling and in Tuesday's hearing the judge criticized [AZ Central report] the MCSO's internal investigation into office misconduct.
With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.
Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.” Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts. Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.
Variants of two genes, MAOA and CDH13, were found to be associated with violent crime. Violent criminals, the 78 of whom had committed a total of 1,154 violent crimes, were linked most strongly to the genes, while the non-violent criminals were not associated with them.
Thursday, October 30, 2014
Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Children in Isolation: The Solitary Confinement of Youth (Wake Forest Law Review, Vol. 50, No. 1, 2015, Forthcoming) on SSRN. Here is the abstract:
Every day in prison settings around the world, young people are held in solitary confinement. They are alone for up to twenty-three hours a day in unfurnished cells. They do not see, have physical contact with, or speak to other people. The cells are small, often no larger than a horse’s stable, and are illuminated by artificial light. Food is passed through narrow openings in heavy metal doors. These adolescents are denied education, counseling, and other services that are necessary for their growth, rehabilitation and well-being. If a parent were to confine her child under similar conditions, it would be abuse; yet when the government does so, often for weeks and months without due process, it is condoned.
The paradox of solitary confinement is that it is not reserved only for the most culpable offenders. Juvenile and immigration detention centers as well as adult jails and prisons place adolescents in isolation to protect them — arguably — from each other or from adults; when they are perceived to be a threat; and to punish them for misconduct and rule-breaking. These rationales for the solitary confinement of youth fail to recognize, however, that prolonged isolation harms young people in ways that are often more profound than its impact on adults.
This Article is the first to provide a comprehensive comparative analysis of the solitary confinement of youth in the United States and across the globe.
"A 30-year-old loophole increasingly gives police officers a pass when they violate the Fourth Amendment"
[T]he good-faith exception to the exclusionary rule stunts the development of Fourth Amendment law. It discourages defendants from challenging illegal searches by denying them the possibility of redress. And courts frequently apply it without also addressing whether police conduct actually violated the Fourth Amendment in the first place. Whatever you think about the good-faith exception, courts are using it as an excuse to avoid scrutinizing questionable police searches.
For instance, last year, a three-judge panel of the 3rd Circuit held in United States v. Katzin that FBI agents violated the Fourth Amendment when they placed a GPS tracker on a Pennsylvania man’s vehicle without a warrant. The court ordered the GPS-derived evidence suppressed. The panel’s decision was important, because it was the first appellate opinion to hold that a warrant is required for GPS tracking since the Supreme Court’s 2012 decision in United States v. Jones. In that case, the court found that attaching a GPS device to a car and tracking the car’s movements is a Fourth Amendment “search,” but did not decide whether it is the kind of search that requires a warrant, leaving that important question to lower courts to figure out.
Stephen Mayer has posted Proving Personal Use: The Admissability of Evidence Negating Intent to Distribute Marijuana (113 Mich. L. Rev. (May 2015), Forthcoming) on SSRN. Here is the abstract:
This Note argues that federal district courts should not exclude three increasingly common types of "personal use evidence" under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. The three kinds of personal use evidence discussed in this Note are (1) a defendant’s possession of a state-issued medical marijuana card, (2) evidence that a state has legalized possession of marijuana for recreational purposes, and (3) evidence that a defendant suffers from a disease that marijuana arguably treats. Part I examines each of these three categories of personal use evidence and contends that disputes over such evidence are likely to confront district courts with increasing frequency. Part II analyzes objections to the admissibility of personal use evidence on direct examination, focusing primarily on Rules 402 and 403. Part III responds to those objections and argues that the evidence is probative on intent to distribute in federal marijuana-trafficking prosecutions.
From The New York Times:
It would be the Wall Street equivalent of a parole violation: Just two years after avoiding prosecution for a variety of crimes, some of the world’s biggest banks are suspected of having broken their promises to behave.
A mixture of new issues and lingering problems could violate earlier settlements that imposed new practices and fines on the banks but stopped short of criminal charges, according to lawyers briefed on the cases. Prosecutors are exploring whether to strengthen the earlier deals, the lawyers said, or scrap them altogether and force the banks to plead guilty to a crime.
Wednesday, October 29, 2014
Ken Strutin (Government of the State of New York - New York State Defenders Association (NYSDA)) has posted Truth, Justice, and the American Style Plea Bargain (Albany Law Review, Vol. 77, No. 3, p. 825, 2013/2014) on SSRN. Here is the abstract:
In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain. This line of decisions has been followed most recently by Burt v. Titlow, which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process?
Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process.
Katie Corcoran , David Pettinicchio and Blaine G. Robbins (University of Washington , University of Toronto and University of Washington - Department of Sociology) have posted Religion and the Acceptability of White-Collar Crime: A Cross-National Analysis (Journal for the Scientific Study of Religion, 51: 542-567, 2012) on SSRN. Here is the abstract:
This article examines whether shared religious beliefs and religious social relationships (Durkheim) and belief in a personal, moral God (Stark) negatively affect attitudes toward the acceptability of white-collar crime. In addition, using a large cross-national sample and estimating multilevel models, we test whether effects are conditional on modernization and religious contexts characterized by belief in an impersonal or amoral God. Shared religious beliefs and the importance of God in one’s life are negatively related to the acceptability of white-collar crime. These effects, however, weaken in religious contexts characterized by belief in an impersonal or amoral God as do the effects of religious social relationships and belonging to a religious organization; modernization, on the other hand, does not have a moderating effect. In short, religious belief is associated with lower acceptance of white-collar crime and certain types of religious contexts condition this relationship.
Tuesday, October 28, 2014
Eugene Kontorovich has this post at The Volokh Conspiracy. In part:
One would not think taxes a state places on airport taxis or other airport rules would be preempted by a federal policy to allow people to travel to West Africa, even if they raise the cost of such travel. Rather, this is the assumed background against which the federal policy operates. Similarly, the application of general state powers to ensure the health of the population are not going beyond the federal law, but are rather the assumed background on which the latter acts.
From The Seattle Times:
The FBI in Seattle created a fake news story on a bogus Seattle Times web page to plant software in the computer of a suspect in a series of bomb threats to Lacey’s Timberline High School in 2007, according to documents obtained by the Electronic Frontier Foundation (EFF) in San Francisco.
. . .
The EFF documents reveal that the FBI dummied up a story with an Associated Press byline about the Thurston County bomb threats with an email link “in the style of The Seattle Times,” including details about subscriber and advertiser information.
The link was sent to the suspect’s MySpace account. When the suspect clicked on the link, the hidden FBI software sent his location and Internet Protocol information to the agents. A juvenile suspect was identified and arrested June 14.
John D. Bessler (University of Baltimore - School of Law) has posted In Closing (Baltimore Law: The Magazine of the University of Baltimore School of Law, Fall 2014, p. 32) on SSRN. Here is the abstract:
This Article, published in the Fall 2014 edition of Baltimore Law, is a short summary of some of the information contained in Prof. John Bessler's new book, The Birth of American Law: An Italian Philosopher and the American Revolution (Durham, NC: Carolina Academic Press, 2014). That book comprehensively traces the influence of the Italian Enlightenment on the American Revolution. In particular, this Article briefly describes the influence of the Italian, anti-death penalty thinker, Cesare Beccaria, on America's founders. Beccaria's book, On Crimes and Punishments, was widely read in America's founding era. The Article also discusses how American executions are "cruel and unusual punishments."
Saori Chiba and Kaiwen Leong (Università Ca' Foscari Venezia - Department of Management and Nanyang Technological University (NTU)) have posted Behavioral Economics of Crime Rates and Punishment Levels on SSRN. Here is the abstract:
Empirical studies have shown, paradoxically, that increasing the probability of apprehension can correlate with an increase in the total number of criminal actions. To examine this phenomenon, this paper develops a theory of "personal rules" based on the tradeoff between one’s self-image of criminal productivity and the temptation – salience of the present – of taking the easy way out by committing a crime. This theory analyzes transformation of lapses into precedents that undermine future self-restraint. The foundation for this transformation is imperfect recall of one’s own criminal productivity within certain defined parameters, which leads people to draw inaccurate inferences from their past actions. Rationalization may lead to overestimation of the expected utility of committing a crime when the opportunity presents itself.
Stephen P. Garvey (Cornell Law School) has posted Injustice, Authority, and the Criminal Law (Sarat, Austin, ed. The Punitive Imagination: Law, Justice, and Responsibility. Tuscaloosa: The University of Alabama Press, 2014) on SSRN. Here is the abstract:
Suppose a state fails to treat a citizen as justice requires. It treats him as a second-class citizen and thus wrongs him. What difference does that failing make to how the state can or ought to respond when such a citizen culpably commits a crime and thus wrongs the state? What difference should a wrongdoer’s “rotten social background” make? Perhaps none. But some say that a state’s failure to treat a citizen justly means his crime should in whole or part be excused. Others say that a state’s failure to treat a citizen justly undermines its standing to punish him at all.
Monday, October 27, 2014
Ilya Somin has this post at The Volokh Conspiracy. In part:
While libertarians have successfully helped put these issues on the political agenda, it remains to be seen whether they and their new allies on the left and right will be able to push through effective reforms. In both cases, there is a danger that newfound public interest in the issue will be quiesced by merely cosmetic changes that only marginally improve the situation. And, obviously, the majority of non-libertarians do not – so far – fully endorse the libertarian approach to these issues, which calls for the complete abolition of both civil asset forfeiture and the War on Drugs. Still, the two cases are dramatic examples of previously marginalized libertarian ideas becoming a part of mainstream political discourse.
Despite the United States’ commitment to decriminalizing victims of sex trafficking and the obvious injustice of subjecting these victims to criminal penalties, the majority of jurisdictions throughout the U.S. continue to treat sex trafficking victims as criminals. This paper argues that the criminal law must abandon this practice. Part one presents a brief account of definitional and conceptual debates regarding what counts as sex trafficking. Part two explains why we must decriminalize victims of sex trafficking. Part three outlines four methods of decriminalizing sex trafficking victims, and defends what has come to be known as the “Nordic model” as the most effective means of achieving this decriminalization.
Mitchell N. Berman (University of Pennsylvania Law School) has posted Abuse of Property Right Without Political Foundations: A Response to Katz (Yale Law Journal Forum, Vol. 124, pp. 42, 2014) on SSRN. Here is the abstract:
In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of abuse of property right. Further, the essay bolsters Katz’s abuse principle by showing how it, or close analogues, helps resolve both the paradox of blackmail and the puzzle of unconstitutional conditions.
Steven P. Grossman (University of Baltimore - School of Law) has posted Using the DNA Testing of Arrestees to Reevaluate Fourth Amendment Doctrine (Valparaiso University Law Review, Vol. 49 (Forthcoming)) on SSRN. Here is the abstract:
With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.
More recently governments have enacted laws permitting or directing the taking of DNA samples from those arrested, but not yet convicted, for certain serious crimes. Courts had been far more divided about the constitutionality of DNA testing for arrestees than they were for the comparable testing of those already convicted of crimes. Given the division in the holdings among both state and federal courts and the increasing importance of DNA evidence in criminal investigations, it was hardly surprising that the Supreme Court agreed to hear a case regarding the constitutionality of a Maryland statute allowing for such testing.