Following Twitter's [corporate website] release of two warrantless surveillance orders [orders, PDF] published on Friday, some legal experts have said the Federal Bureau of Investigation (FBI) [official website] may have overstepped current legal guidelines for acquiring certain internet data. The two orders released by the social media site, known as national security letters (NSLs), requested [Reuters report] certain data that could include email header data and browsing history - information beyond their reach according to a 2008 US Department of Justice (DOJ) [official website] legal memorandum [text, PDF] restricting such data retrieval to phone billing records. Twitter says, despite the NSL, the company only provided the FBI with such data as is required under the DOJ memo. This most recent release further supports the belief of some privacy rights groups, including the Electronic Frontier Foundation [advocacy website], that it is common FBI practice to use NSLs to acquire internet records beyond the 2008 DOJ memo. In addition to Twitter, other internet companies such as Google and Yahoo have also released similar orders from the FBI. The FBI usually issues gag orders on companies when delivering NSLs, which keep these companies from disclosing these warrantless surveillance orders.
Tuesday, January 31, 2017
Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....
Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”
"What is a 'violent crime'? For California's new parole law, the definition is murky— and it matters"
From The L.A. Times, via NACDL news scan:
As California undergoes the largest overhaul of prison parole in a generation, determining which criminals are violent in the eyes of the state has taken on a new urgency among some lawmakers and law enforcement officials who argue it’s time to revisit how “violent crime” is legally defined.
Gov. Jerry Brown’s Proposition 57, which voters overwhelmingly approved in November, continues a statewide effort to increase rehabilitation services and decrease the prison population. Among its provisions, the initiative will give new power to the state parole board to consider the early release of prisoners who have served the full term of their primary sentences, and whose crimes are not designated as “violent” under the California penal code.
But since the early days of the ballot measure campaign, debate has brewed over just who the law will benefit, with prosecutors arguing the state’s short and porous violent felony list could allow dangerous inmates like Luster to walk free. Now the debate has moved to the state Capitol, as some lawmakers hope to expand the number of the crimes outlined in the penal code.
John Pratt and Michelle Miao (Victoria University of Wellington - Institute of Criminology and The Chinese University of Hong Kong, Faculty of Law) have posted Penal Populism: The End of Reason on SSRN. Here is the abstract:
Penal populism has become a much discussed characteristic of punishment in modern society. Most such commentaries, however, take the rather myopic view that this phenomenon represents some localized event within the social body, to be diagnosed, theorized and exorcized there. This article, however, argues that the emergence of penal populism is neither the endpoint of nor the limits to populism and its consequences in modern society. Rather, it marks only the beginnings of its more general resurgence in the early twenty first century. In these respects, penal populism should be understood as only a convenient incubating phase in which populist forces found vigour and strength before flowing much deeper into mainstream society from that gestation. If it might be thought that penal populism represents an attack on the long established link between reason and modern punishment, this has been only the prelude to the way in which a much more free flowing political populism now threatens to bring an end to Reason itself, the foundation stone of modernity. This shift from penal to political populism has been precipitated by two interconnected factors: the impact of the 2008 global fiscal crisis and the mass movement of peoples across the globe. The article concludes with a discussion of how political populism continues to transform punishment in modern society, as well as the broader social consequences and implications of its emergence.
Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level now enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. They may be entered and negotiated in parallel and settled jointly. The reach of these settlements is global. Corporates fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to environmental law, from health law to securities regulation to banking. Private settlements, regulatory settlements, and prosecutions each bring with them varying standards of judicial review and different statutory and court-made procedures for their approval in and out of court. It is understood that judicial review is needed to ensure that the public interest is met. When government actors themselves settle with corporations, often the public interest is too readily presumed. In this Article, I explore how standards in disparate areas have converged raising a common question: what protects the public interest when corporations settle with government? A common field of law, and perhaps more important, equity, governing judicial review of these complex corporate settlements deserves study. In this Article, I will argue that common equitable principles govern in the courts but should be clarified and developed further in judicial rulings, regulations, and in statutes, taking as their lodestar the concept of the public interest.
Adam B. Shniderman (Texas Christian University) has posted Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water (Yale Law Journal Forum Vol. 126 Pp. 348-361 (2017)) on SSRN. Here is the abstract:
In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques. This report comes seven years after the watershed National Research Council Report on forensic science offered many similar criticisms of forensic science in the United States. Following the PCAST report, several major law enforcement figures responded. This paper focuses on the responses by Attorney General Loretta Lynch and the National District Attorneys Association and their implications for the future of forensic science reform.
Monday, January 30, 2017
Leah M. Litman (University of California, Irvine School of Law) has posted Judge Gorsuch and Johnson Resentencing (This Is Not a Joke) on SSRN. Here is the abstract:
This paper describes an opinion by Judge Gorsuch that addresses when federal criminal defendants may file petitions for habeas corpus to challenge their convictions or sentences.
The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term “reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can - and have - shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries.
Pietro Ortolani (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) has posted Conflicts of Jurisdiction in Criminal Law: Lessons from European Civil Procedure on SSRN. Here is the abstract:
One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of Regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-border crimes, no hard-law instrument regulates this matter in a binding fashion.
Having noted this legislative gap, in January 2013 the European Law Institute accepted a project proposal dealing with the prevention and settlement of conflicts of jurisdiction in criminal law.
Artemio Rivera has posted Probable Cause and Due Process in International Extradition (American Criminal Law Review, Vol. 54, 2017) on SSRN. Here is the abstract:
At an international extradition hearing, the government must prove there is probable cause that the individual wanted for extradition committed an offense in the requesting country. In assessing the admissibility of the evidence presented by the individual, courts generally apply the rule of “non-contradiction.” Noncontradiction allows individuals to introduce evidence that explains the government’s case, but denies them the opportunity to present evidence that simply contradicts it.
I argue that forbidding individuals from contradicting the government’s evidence violates due process. Due process requires the government to afford individuals a meaningful opportunity to contest the evidence when the government intends to deprive them of liberty or property. Applying the balancing test of Mathews v. Eldridge to the particularities of international extradition suggests the unconstitutionality of the rule of non-contradiction because of the heavy weight of the liberty interests of individuals, and because extradition treaties, the extradition statute, and the courts, afford requesting countries a plethora of other procedural advantages.
Sunday, January 29, 2017
From The New York Times:
The technique, which has been used more than a dozen times in the United States over the last 10 years, represents a frontier in the evolving world of forensic science. While some methods, like microscopic hair testing and bite-mark matching, have been challenged in recent years, DNA testing remains a staple of forensic investigation, used to both identify suspects and exonerate the wrongfully convicted.
Familial searching allows investigators to search offender databases with wider parameters to identify people who are likely to be close relatives of the person who may have committed a crime. Law enforcement officials say a hit in the database is less a piece of evidence than it is a lead, and such matches have helped solve some heinous crimes in states where the practice has been authorized.
But the method raises some complicated ethical issues that have trailed the expansion of DNA technology since its introduction. And as the collection of DNA grows in the private sector, so do the concerns about its potential misuse, particularly in the hands of government institutions.
Brooklyn Law School
Date posted to database: 5 Dec 2016
|2||201||Law and Moral Dilemmas
Bert I. Huang
Columbia Law School
Date posted to database: 9 Jan 2017
University of San Diego School of Law
Date posted to database: 5 Dec 2016
|4||88||From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017
|5||74||Kriminalomsorgen: A Look at the World's Most Humane Prison System in Norway
Ryan Alexander Berger
Duke University, School of Law, Students
Date posted to database: 11 Dec 2016 [6th last week]
|6||68||TRAGEDY, OUTRAGE & REFORM Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes
Paul H. Robinson and Sarah M. Robinson
University of Pennsylvania Law School and Independent
Date posted to database: 3 Dec 2016 [5th last week]
|7||65||Punishment and Moral Risk
Adam J. Kolber
Brooklyn Law School
Date posted to database: 10 Jan 2017 [8th last week]
|8||51||Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip
University of Toronto - Faculty of Law
Date posted to database: 5 Jan 2017 [9th last week]
|9||49||Strict Liability's Criminogenic Effect
Paul H. Robinson
University of Pennsylvania Law School
Date posted to database: 7 Jan 2017 [new to top ten]
|10||43||Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference
University of Lethbridge
Date posted to database: 29 Dec 2016 [new to top ten]
Saturday, January 28, 2017
|1||316||fMRI and Lie Detection
Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson and Gideon Yaffe
Stanford University - Psychology, University of Virginia - School of Law, Yale University - Department of Psychology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Yale Law School
Date posted to database: 23 Dec 2016 [2nd last week]
Brooklyn Law School
Date posted to database: 5 Dec 2016 [3rd last week]
|3||165||In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Date posted to database: 10 Jan 2017 [4th last week]
|4||116||The Structure of Federal Public Defense: A Call for Independence
Federal Defenders of New York
Date posted to database: 19 Dec 2016 [5th last week]
|5||97||Adversarial Asymmetry in the Criminal Process
Washington University in Saint Louis - School of Law
Date posted to database: 1 Dec 2016 [6th last week]
|6||83||Critical Perspectives on Police, Policing, and Mass Incarceration
Richard Delgado and Jean Stefancic
University of Alabama - School of Law and University of Alabama - School of Law
Date posted to database: 30 Nov 2016 [7th last week]
|7||82||The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century
Vanderbilt University - Law School
Date posted to database: 15 Dec 2016 [10th last week]
|8||82||When Interviewing Children: A Review and Update
Karen J. Saywitz, Thomas D. Lyonand Gail S. Goodman
University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis
Date posted to database: 5 Jan 2017 [new to top ten]
|9||79||The Right to Redemption: Juvenile Dispositions and Sentences
Katherine Hunt Federle
Ohio State University Moritz College of Law
Date posted to database: 30 Nov 2016
|10||77||Apple and the American Revolution: Remembering Why We Have the Fourth Amendment
Clark D. Cunningham
Georgia State University College of Law
Date posted to database: 6 Dec 2016 [8th last week]
Friday, January 27, 2017
Patrick Walsh (U.S. Army Judge Advocate General's Legal Center and School) has posted Foreign Intelligence, Criminal Prosecutions and Special Advocates on SSRN. Here is the abstract:
The Snowden leaks and other revelations about the bulk foreign surveillance programs led to significant public concern that the United States was conducting illegal surveillance programs. Lost in the scandal over the disclosure of these secret programs is the truth that these programs were presumptively lawful, they were enacted with the approval of the very courts set up to prevent overreaching by the government. In matters of national security, courts are hampered by procedures that limit the adversarial process. The procedures that permitted the intelligence community to seek — and the Foreign Intelligence Surveillance Court to approve — these excessive programs must be altered to ensure our national security professionals that are charged with protecting our nation do not infringe on essential civil liberties.
The USA FREEDOM Act was a welcome step in the right direction. Unfortunately, the changes brought by the USA FREEDOM Act are not sufficient to prevent another broad misuse of the intelligence authorities. The act established an amicus curiae, a special advocate who can appear before the secret courts and argue against proposed government intelligence programs. This type of special advocate is needed, but there is a much more essential forum for special advocates, before traditional criminal judges in courts where the government is using evidence gathered from intelligence collection programs at trial against defendants.
Eve Brensike Primus (University of Michigan Law School) has posted Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law (Boston University Law Review, 2017) on SSRN. Here is the abstract:
Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda’s protections. One underappreciated aspect of Miranda’s demise is the way it has affected the development of the pre-trial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects’ Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pre-trial right to counsel would support such an importation. This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes.
Jonathan Todres (Georgia State University College of Law) has posted Physician Encounters with Human Trafficking: Legal Consequences and Ethical Considerations (AMA Journal of Ethics, Volume 19, Number 1, p. 16-22) on SSRN. Here is the abstract:
John D. Bessler (University of Baltimore - School of Law) has posted The Italian Enlightenment and the American Revolution: Cesare Beccaria's Forgotten Influence on American Law (Hamline Journal of Public Law and Policy, Vol. 37, No. 1, 2017) on SSRN. Here is the abstract:
The influence of the Italian Enlightenment — the Illuminismo — on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents — George Washington, John Adams, Thomas Jefferson and James Madison — were inspired by Beccaria’s treatise and, in some cases, read it in the original Italian. On Crimes and Punishments helped to catalyze the American Revolution, and Beccaria’s anti-death penalty views materially shaped American thought on capital punishment, torture and cruelty. America’s foundational legal documents — the Declaration of Independence, the U.S. Constitution, and the U.S. Bill of Rights — were themselves shaped by Beccaria’s treatise and its insistence that laws be in writing and be enforced in a less arbitrary manner.
The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty is partly a product of the affirmative consent reform juggernaut and its rapid legal changes. Confusion is also connected to the nature of consent as a liberal, contract principle. Sexual consent appears a morally self-evident issue of free will, but it actually veils a struggle between various judgments about how sex should happen, its benefits and harms, and the role of criminal law in regulating it. Indeed, proponents and critics of affirmative consent entertain different empirical and normative presumptions and often simply talk past each other. Structurally mapping the consent framework and the affirmative consent debate reveals exactly what is at stake in this new world of reform — a revelation necessary for meaningful dialogue on acceptable sex and acceptable sex regulation.
Thursday, January 26, 2017
This Article, part of a symposium on neuroscience and the law at Fordham Law School, argues that the field of neurolaw should more readily acknowledge that there is a history to law and neuroscience. The Article does not endeavor to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid-twentieth century, (3) the use of psychosurgery for violence prevention in the 1960s and 1970s, and, most recently, (4) the development of neurolaw in personal injury litigation in the late 1980s and 1990s.
Richard A. Leo (University of San Francisco - School of Law) has posted Police Interrogation, False Confessions, and Alleged Child Abuse Cases (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:
In this lecture, Professor Richard Leo discusses false confession cases, exploring the phenomenon of false confessions, the impact of confession evidence, and the causes of false confession. In the beginning of his presentation, Professor Leo highlights some typical characteristics of false confession cases by discussing the false confessions of Adrian Thomas and Nga Truong, both wrongly accused of killing their children. In both cases, law enforcement officers ignored substantial medical evidence that the children died from other causes and assumed from the start that Thomas and Truong were guilty of homicide. Professor Leo explores laboratory and field studies on the impact of confession evidence, which demonstrate that confessions are highly prejudicial. He also outlines the social psychology of police interrogation, noting that contemporary American interrogation methods are designed to persuade suspects that their situation is hopeless and that confession is in their self-interest. Next, Professor Leo details the risk factors for interrogation-induced false confessions, including officers’ presumption of guilt, lengthy interrogation and sleep deprivation, false evidence ploys, minimization and maximization, and explicit promises and threats. In conclusion, he argues that the United States needs to enact front-end reforms, such as electronic recording of interrogations and improved training for law enforcement personnel, that would help to minimize false confessions.