Custom, General Principles and the Great Architect Cassese

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. [T]he law lives in persons, and to understand the law one must study the vision of the persons who animate the law, another great scholar and judge wrote. In that spirit, this article explores advances in the art of elucidating custom and general principles in international criminal justice through the lens of President Cassese\u27s legacies and views on legality, sovereignty and the imperatives of humanity. The result are major landmarks in the prosecution of international crimes, such as developing protections in armed conflict and against sexual violence—and also progress in developing defenses and protections for the accused. [para] The article distills lessons to guide the elucidation of customary international law and general principles from national systems and to regulate the transposition of concepts from national criminal law into international criminal law

Street Diversion and Decarceration

States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. [para] The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion—the power to sort who gets treatment rather than enters the criminal justice system. [para] The article draws insights from medicine and the experience of treatment courts about how to guide therapeutic discretion, mitigate the risk of racial disparities in selection of beneficiaries, and offer checks and balances on power

Rebellious State Crimmigration Enforcement and the Foreign Affairs Power

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration ( crimmigration\u27), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of cooperative federalism that does not trespass upon the federal power over foreign affairs, foreign commerce, and nationality rules since the laws mirror federal standards. This Article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting foreign affairs complications render the new spate of immigration policing laws infirm. [para] The Article argues for the need to give due weight to statements of interest by the executive on the foreign affairs implications of rebellious state crimmigration enforcement. The Article argues that the caste-carving approach of the attrition through enforcement multi-front attack strategy behind the laws contravenes national immigration enforcement policy and strains foreign relations. The analysis provides a basis for distinguishing the Supreme Court\u27s recent decision in Chamber of Commerce v. Whiting [131 S. Ct. 1968 (2011)], which upheld a state employer licensing regulation, from the current spate of legislation pending in the courts. The distinction that makes a difference is conflict with a national enforcement policy calibrated to avoid turning suspected foreign nationals into untouchable caste-like subjects of suspicion and abuse, thereby marring community and international relations. The analysis in the crimmigration context also enriches our understanding of what cooperative-and uncooperative-federalism enforcement means and the dangers of the phenomenon in areas of special national concern fraught with localized animosity. [para] Note: This article was reprinted in 33 Immigr. & Nat\u27lity L. Rev. 89 (2012)

Hacking Qualified Immunity: Camera Power and Civil Rights Settlements

Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles. Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as well as the police trials of complaints against the police are more likely to occur outside the courtroom, in the arena of public perception. This article is about the power and perils of cameras in deciding civil rights claims against the police and exacting settlements. Many hope that cameras will offer more objective evidence to resolve fierce factual conflicts and reveal the truth of what happened This contribution explores the volatile power of video evidence to vie for subjective audience perceptions - and potentially short-circuit the qualified immunity hurdle to induce settlements

Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, and Automatic Activation

A movement toward police regulation by recording is sweeping the nation. Responding to calls for accountability, transparency and better evidence, departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important, growing area of controversy. Based on the collection and coding of police department body camera policies, this Article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions specifying consequences for not recording as required—and several have protections against discipline. The Article discusses how the labor-management structure of departments and the individual-blame nature of disciplinary processes render internal departmental enforcement of recording rules challenging. As the central framers of conduct rules for police, and as gatekeepers of evidence, courts have an important role to play in addressing the missing video problem. The challenge is how to frame remedies that avoid judicial inquiry deterrence: a reluctance to address missing video issues because it would entail messy and costly collateral mini-trials on whether recordings are missing for legitimate reasons or due to officer malfeasance. This Article proposes three judicial pretrial remedies that proceed from a more administrable evidentiary fairness perspective: exclusion of partial recordings, favorable inferences, and pattern and practice detection harnessing systemic facts accumulated by courts in criminal cases

Violence and Police Diversity: A Call for Research

Deaths and protests in places where predominantly-white police forces patrol majority-black communities have focused the national spotlight on concerns over unrepresentative police forces. Responding to the controversy, mayors and police chiefs in cities across the nation are announcing goals to hire more minority officers. But does police diversification actually reduce the risk of violence in police encounters? This Article addresses this timely question of legal and practical import to communities seeking to prevent violence and pursue policies that survive constitutional scrutiny. Drawing on restricted-access Centers for Disease Control data and social-psychological insights, this Article shows that there is a good basis to hypothesize that police diversification has violenceprevention benefits, but further study is needed. This Article shows that as the nation’s police forces have grown more diverse over the decades, the large racial disparity in the risk of deaths due to law enforcement has narrowed somewhat. Smaller-scale studies evaluating whether police diversification reduces the risk of deaths due to law enforcement have yielded mixed and null results. This Article argues that the failure to detect a significant effect is not fatal; the mixed and null findings are due to data limitations that obscure many cases of relevant harm. The quantitative data available from official sources is not sufficient to draw conclusions. This Article is the first to propose the innovation of drawing on hospitalization data to address the oft-lamented lack of information on nonfatal injuries inflicted by police, opening a fresh avenue to investigate this important hidden issue

When Deterrence and Death Mitigation Fall Short: Fantasy and Fetishes as Gap-Fillers in Border Regulation

Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to U.S. border control problems. More than a decade after the official launch of the border control paradigm of prevention through deterrence, predicated on the assumption that ramping up walls, barriers, policing, and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also proved ineffective but have persisted alongside the policy of diversion. [para] The article is based on research in a region where the reality of diversion and death instead of deterrence was lived but where people still pursue projects of barrier-building and death mitigation that they know to be ineffective. The article analyzes how fantasy fuels action despite knowledge and occludes a traumatic element around which the symbolic order of border law is structured: the foundation of good life with its bounty of rights, privileges, and opportunity on the exclusion of basic life denuded of the entitlements that make the good life sweet. The article also examines how fetishes are used to cope with unrealized hopes and to diffuse the impact of the traumatic knowledge that good life is undergirded by the exclusion and even death of basic life.[para] The first part of the article, Query and Approach, frames the question at the heart of the study and delineates the approach taken to examine the issue. Finding instructive Zizek\u27s insight that objects enacted by people can materialize and disclose a deeper truth that people and ideology cannot afford to acknowledge, the article\u27s analytical narrative is organized around the enactment of two forms of objects: private border fences and water tanks. These objects and projects of civil society engaged in political action mirror in miniature the larger projects and objects of the state and its border law and are entryways for analysis.[para] The second part of the article, Fantasy and the Law, analyzes the incidents and interviews during fieldwork that show the work of fantasy in sustaining and regenerating policy, law, and political action that people know to be dysfunctional. [para] The third part of the article, Why Fantasy? analyzes how people use fetishes to cope with the traumatic knowledge that the good life is undergirded by the exclusion of basic life.[para] The study is based on 53 interviews during seven weeks of fieldwork and additional informal conversations and interactions. Interviewees were identified by observing border activism-related activities, such as fence-building, border-watching musters, water tank servicing trips, and a meeting between a migrant rights activist and the mayor of a nearby Mexican town. I also talked to ranchers and other residents who lived close to the border, contacted people referred to me by others, and met people at community venues. Much of the fieldwork consisted of observation rather than participation, so as to remain open to studying people from different perspectives. Participation was limited to filling water tanks and checking water levels while riding along on water tank-refill trips. While interviewees relied upon for this article graciously gave their names and backgrounds along with their perspectives, I have decided to omit names for purposes of this article

Private Data, Public Safety: A Bounded Access Model of Disclosure

A growing volume of crucial information for protecting public health and safety is controlled by private-sector entities. The data are private in two senses—both proprietary and secluded from scrutiny. Controversies over corporate secrecy, such as sealed settlements that hide deaths due to product defects or nondisclosure of potentially hazardous substances, illustrate how corporate privacy and public safety can conflict. Courts are conflicted about when to defer to companies’ claims of the right to keep information private when important public interests are implicated by the data that companies refuse to disclose. This Article proposes allowing what it terms “bounded access” to share private data important to public health and safety with safeguards for the private interests at stake. In contrast to mandated public-disclosure regimes, bounded access would provide information access to trained professionals capable of effectively using data to detect health and safety harms while honoring data protections. The paradigmatic audience for bounded access disclosures is researchers overseen by institutional review boards and trained in how to minimize damage to data owners. Information aggregation and deidentification can help protect the anonymity of the private entities and their product lines, thereby ameliorating the concerns of private entities regarding prematurely rousing consumer panic, injuring brand reputation, or destroying trade secrets. Such bounded access would address the limitations of general public disclosure, such as conflict with the Fifth Amendment takings clause or piling more disclosure on the information overloaded consumer. Information would be rich in technical details to facilitate effective expert analyses rather than pared down for general public consumption. The proposed approach thus balances private-sector interests with the public interest in protecting population health and safety

The Hidden Harms of Privacy Penalties

How to frame privacy penalties to protect our personal information is an important question as demands for legislation and proposals proliferate. The predominant assumption in calls for a comprehensive consumer privacy regime is that regulation and penalties arm the consumer David against Goliath businesses. Missing in the focus on powerful companies is attention to the potential harms of expanding privacy penalties for small-fry individuals and entities, especially from disfavored or marginalized groups. This article is the first to illuminate the regressive risks of privacy penalties, showing how broad privacy penalties can become tools for harassment of small businesses and individuals with limited resources to defend.Drawing on original research collecting and coding 571 privacy penalty decisions from 20 nations under the world’s toughest privacy rights and penalties regime, the European Union’s General Data Privacy Regulation (GDPR), this article offers cautionary lessons. Illuminating a shadow jurisprudence of small targets, the article shows how overly broad, amorphously worded privacy penalty provisions can be used to target disfavored groups and create weapons for the disgruntled, such as punishing people who record the police or in disputes between neighbors.The article offers three major principles to protect against targeting harms. First, the article argues against vague broad language in framing penalty-backed obligations to curb discretion to harass and target disfavored groups. Second, the article argues for a regulatory agency model with an explicit advisory role rather than a predominantly quasi-prosecutorial role. Third, the article proposes safe harbors for individuals and small businesses and a complementary understanding that even seemingly minor penalties can carry major collateral consequences for the vulnerable

Sex, Privacy and Public Health in a Casual Encounters Culture

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law\u27s antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ( STD ); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. Controversial proposals have circulated, such as mass HIV screening for everyone aged thirteen to sixty-four, STD testing in high schools, mandatory HIV screening, strict liability in tort for HIV transmission, and criminalizing first-time sex without a condom. [para] This Article argues that we should explore informational interventions beyond the cumbersome and costly regulatory regimes of criminal and tort law and the STD-surveillant state. The Article proposes devolving information and power currently centralized in the state to people in the marketplace for sex and romance to ameliorate the information deficit that impedes informed consent to risk exposure. Information can be both a carrot and a stick. Providing more reliable ways to verify STD status and seeding a healthier culture of verification can be encouragement to get tested to enhance self-advertising. Rather than criminalization, which comes at too great a cost and too late, preventative privacy-piercing can be an alternative approach to deter the small subset of serial STD spreaders