Category Archives: Law: Criminal Law

US Incarceration Rates Are Out of Control

I knew it was bad, but not this bad:

(Spotted via Ian Welsh, Justice is not Law, Law is Not Justice.)

I admit the graph is a tiny bit misleading — it uses absolute numbers rather than percentages of population, which would be better. But even making that correction doesn’t change much: US population grew from 226.5 million in 1980 to 308.7 million in 2010, a 73%36% increase. Meanwhile, however, the number of persons incarcerated almost quadrupled.

Our incarceration rate is by far the highest in the world. The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners. However you draw it, we need to change the shape of this curve. Drug laws are probably the place to start. Three strikes rules would be next. Preventing the privatization of prisons — which creates a lobby for more incarceration — is another good move. Similarly, changing the electoral rule that counts prisoners as (usually non-voting due to felony disqualification) residents of the district in which they are incarcerated rather than their last regular address would also decrease the incentive for state and congressional representatives from those rotten boroughs to push for more rules that create more prisoners.

Ian Welsh argues that plea bargaining should be eliminated also. Civil law trained ethicists tend to agree, however, that the plea bargaining system is immoral since it empowers the prosecutor at the expense of the neutral (the judge) thus producing outcomes we have less faith are just, and puts the defendant to a terrible choice in which he is threatened with punishment — more charges, no deal on sentence — for exercising his right to mount a defense. I’ve long thought there’s something to it but one has to admit that as things stand eliminating plea bargaining would drive the system to a halt unless we first cut down on the number of things we call crimes.

Keep all this in mind while you enjoy thinking about the beneficial effects on the crime rate caused by removing lead from the environment.

Posted in Law: Criminal Law | 19 Comments

Domesticating Airport Dragnet Searches

Two articles examining the legality of the airport screening regime so many have come to take for granted appear in the online supplement to The Northwestern University Law Review: Revisiting “Special Needs” Theory Via Airport Searches by Professor Alexander Reinert of Cardozo and The Bin Laden Exception, by Professor Erik Luna of Washington and Lee.

The Reinert article treats the judicial acceptance of the airport screening regime as a foregone conclusion, and labors to limit the fallout:

[T]he TSA’s new search regime is more difficult to square with fundamental Fourth Amendment principles than the FAA’s initial airport screening procedures. Therefore, precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime. Specifically, I argue here that if courts are to give the TSA’s new search regime constitutional approval, it must be limited to its justifying purpose—safe air travel—and it must be grounded in the special needs exception to warrantless and suspicionless searches. Making explicit what has been implicitly required by most of the Supreme Court’s special needs jurisprudence, I propose a special exclusionary rule for searches like those conducted by the TSA that will best limit the ex post utility of such searches to their ex ante justifications. Under my proposal, the use of evidence discovered as a result of mass suspicionless searches like the TSA’s screenings should be limited to prosecutions for offenses that relate to the asserted justifications for the search regime. This link between justification and permissible use is one novel way to limit the reach of a special needs justification for these airport searches. In a way, then, the TSA’s new search regime offers an opportunity to revise and revisit special needs jurisprudence to minimize the risk that the exception will ultimately swallow the Fourth Amendment’s traditional preference for searches based on warrants and individualized suspicion.

The Luna response is even more pessimistic about the vitality of the incredible shrinking 4th Amendment:

In effect, TSA agents may now search any and all items in one’s baggage, given the sweeping claim that explosives “may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” Moreover, evidence of an agent’s impermissible motive—for instance, searching a bag for contraband wholly unrelated to terrorist threats—will be ignored so long as the TSA’s “programmatic motive” is airline safety. …

In the end, I just wish everyone would be a bit more honest. What is at play here is not a previously recognized exception to the Fourth Amendment—consent, good faith, special needs, and so on—but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks. Let’s call it what it is: The Bin Laden Exception to the Constitution. If nothing else, putting a name to the systematic evasion of the nation’s most hallowed legal text might force some to face their own irrationality and question the wisdom of bending the Constitution, as well as spilling vast amounts of blood and treasure, all for the sake of one evil man and his outlaw organization.

Spotted via Pogo Was Right, On the Colloquy: The Fourth Amendment and Airport Screening Issues.

Posted in Law: Criminal Law, Law: Right to Travel | 1 Comment

11th Circuit Rules that Full Immunity Is Required for Compelled Decryption

The 11th Circuit just decided In re Grand Jury Subpoena Duces Tecum March 25, 2011, USA v. John Doe.

Doe was ordered to decrypt his hard drive, and given limited immunity (use immunity) regarding the act of production of the unencrypted contents. He refused, claiming that the immunity was insufficient, and also that he was not in fact able to decrypt the hard drives.

We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought,because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

It’s a well-argued opinion and could be influential.

Posted in Cryptography, Law: Criminal Law, Law: Internet Law | 1 Comment

Mediate Our Dispute

My office neighbor Caroline Bradley and I are having a mild disagreement over her incredulity that greek doctors are “foreign government officials” for Foreign Corrupt Practices Act purposes.

My take is that if they are state employees, and if they have authority to buy stuff, and if the bribes are to get them to buy the stuff in particular ways, then why not?

Please direct any comments to the original post.

Posted in Law: Criminal Law | Leave a comment

Here We Go

Inevitably, here comes the test case:

A U.S. federal judge has ordered a defendent to decrypt her laptop.

Schneier on Security: Federal Judge Orders Defendant to Decrypt Laptop

Posted in Cryptography, Law: Criminal Law | Leave a comment

UM Law Review Symposium on the Death Penalty

With all our recent hires in the criminal law area, the law school is turning into something of a crim law powerhouse. So it’s appropriate that this year’s Law Review Symposium will be on the death penalty and life without parole. The Symposium will be held on the afternoon of Friday, February 17 and the morning of Saturday, February 18. Topics include:

  • whether the death penalty is near its end in the United States;
  • the debate over new lethal injection protocols;
  • the debate about life without parole as an alternative to the death penalty, and
  • the role of social science in examining the death penalty.

The keynote speaker will be Jordan Steiker of the University of Texas Law School.

Panelists will include Deborah Denno of Fordham, Robert Blecker of New York Law School, Mona Lynch of the University of California at Irvine, Corinna Lain of the University of Richmond, Adam Kolber of Brooklyn Law School, Douglas Berman of Ohio State, Cynthia Brown of the University of Central Florida, Ashley Nellis of The Sentencing Project, and University of Miami law professors Susan Bandes, Mary Anne Franks, Tamara Lave, and Sarah Mourer.

This is a good list of speakers — should be a great event for people interested in the topic.

For more information, or to register in advance, you can contact Farah Barquero or call (305) 284-2464.

Posted in Law: Criminal Law, Talks & Conferences | Leave a comment

Not the Smartest Thing to Wear to Court


A man accused of drug trafficking showed up for court Friday in Fort Lauderdale sporting a jacket that bore a cartoon-style recipe for cooking crack cocaine.

The man’s white jacket looked like a how-to guide for making crack cocaine, with a series of little pictures of a white substance with a spoon, a carton of baking soda and a little pot over a fire. The end product was a "rock," slang for the drug.

via MiamiHerald.com, Man wears ‘crack jacket’ to court.

My question is whether this sort of thing is common only in Broweird, as we so fondly call it, or is this more common? I sort of fear it might be national.

Posted in Florida, Law: Criminal Law, Law: Practice | Leave a comment