Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

article published in law journalIn the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance

Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a “Scientific Stare Decisis”

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process

Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism To Preventive Justice And Hybrid-Inquisitorialism

Plea bargaining and guilty pleas are intrinsically incompatible with themost commonly-accepted substantive and procedural premises of American criminal justice: Plea bargaining routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process. This Article argues that the only way to align plea bargaining with our criminal justice premises is to change those premises. It imagines a system in which retribution is no longer the lodestar of punishment, and in which party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retributionas in the salad days of indeterminate sentencing and if it were filtered through a system that is inquisitorial (that is, judicially-monitored) rather than run by the adversaries, it would have a greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results

Principles of Risk Assessment: Sentencing and Policing

Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making. To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs). RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged. But RAIs bring with them their own set of controversies. In recognition of these concerns, this brief paper proposes three principles — the fit principle, the validity principle, and the fairness principle — that should govern risk assessment in criminal cases. After providing examples of RAIs, it elaborates on how the principles would affect their use in sentencing and policing. While space constraints preclude an analysis of pretrial detention, the discussion should make evident how the principles would work in that setting as well

Justice Ginsburg's Gradualism in Criminal Procedure

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law -- involving incremental steps rather than sweeping pronouncements -- is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases

Mental Illness and Self-Representation: Faretta, Godinez and Edwards

In the recent decision of Indiana v. Edwards the Supreme Court held that the right to represent oneself may be denied to defendants who are competent to stand trial if they "still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Edwards was a surprise, given the Court's holding 15 years earlier in Godinez v. Moran that Nevada courts did not err when they permitted a mentally ill person who had been found competent to stand trial to waive the right to counsel, plead guilty and waive the presentation of mitigation evidence at capital sentencing. A cynic might note that a desire for efficiency could easily explain these decisions: If a defendant with mental illness wants to plead guilty, Godinez suggests, a finding of competency is usually appropriate, but if such a defendant wants to represent him or herself at trial, Edwards advises, a finding of incompetence is probably best. Even if the Court's motivation in Edwards was benign, however, it erred. For there was another path it could have taken that more satisfactorily resolves the tension between the defendant's interest in autonomy on the one hand and, on the other, society's interests in reliable and fair outcomes and in avoiding farcical proceedings that bring the criminal justice system into disrepute. First, the Court should have reaffirmed, rather than ignored, Godinez' explicit holding and Faretta's suggestion that the key issue is competency to choose, not competency to represent oneself. Second, contra to Godinez, it should have recognized that one needs greater capacity to choose to waive counsel than to surrender other rights, which would have better protected both the defendant's autonomy interest and the state's interest in fair proceedings. Third, it could have further protected those interests by requiring an inquiry that Godinez did not consider: an investigation of the reasons the defendant wants to proceed pro se. If those reasons are delusional or non-existent, then the autonomy that gives rise to a right to self-representation does not exist. But otherwise the defendant who understands the risks of waiving the right to counsel should be allowed to represent himself; no competency-to-represent-oneself test, a la Edwards, should be required. If the pro se defendant becomes disorderly during trial, the state's interest in avoiding circus-like proceedings can be accommodated through application of Illinois v. Allen, which permits the trial judge to take steps to maintain the decorum of the courtroom

Toward Taping

Numerous authors, from all points on the political spectrum, have advocated that police interrogations be taped. But police rarely record custodial questioning, at least in full, and only a handful of courts have found this failure objectionable. This commentary outlines three different constitutional grounds for mandating that such recording become a routine practice. To set up the constitutional argument, the article first outlines why taping is needed despite the elaborate rules that now govern interrogation. Put simply, the reasoning is as follows: the Miranda regime has failed, voluntariness should once again be the focal point of interrogation regulation, and taping is the most likely way to move in that direction. The article then explains why a taping requirement should be more than a policy preference. To date, the primary contention in this vein has been based on the due process duty to preserve exculpatory evidence. Although that argument has not fared well in the courts, it can be recast more persuasively and this article does so. It then puts forward two other constitutional grounds for a taping requirement: the Fifth Amendment privilege against self-incrimination, with an emphasis on how it functioned in colonial times, and the Sixth Amendment right of confrontation, as distinct from the right to counsel. If one of these arguments can win the day, it will revolutionize the interrogation process much more radically than did Miranda

The Exclusionary Rule: Is It on Its Way Out? Should It Be?

article published in law journalThis symposium, comprising six articles in addition to this one, was triggered by a spate of Supreme Court opinions occurring over the last seven years, all of which raise the two questions in the title to this article (which is also the title of the symposium). Since 1974, when United States v. Calandra definitively established deterrence as the primary objective of the suppression remedy, the Court has nibbled away at the exclusionary rule from a number of different directions. But the Court's decisions in Hudson v. Michigan (2006), Herring v. United States (2009), and Davis v. United States (2011) reveal a Court that is now willing to take much larger bites out of the rule, and perhaps even swallow it whole

Reconceptualizing Due Process in Criminal Justice: Contributions from Law and Social Science

This article challenges the accepted wisdom, at least since the Supreme Court’s decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the adversarial tradition of adult criminal court. Instead, as the Court’s administrative procedure cases illustrate, fundamental fairness theory aims at constructing the procedural framework that best promotes fairness, accuracy and efficiency in the setting in question. Social science, and in particular procedural justice research, can play an important role in fashioning this framework, because it can empirically examine various procedural mechanisms, in various settings, with these objectives in mind. To date, procedural justice research suggests that the procedures associated with the adult criminal process are not optimal even in that setting, much less in a regime focused on rehabilitating or punishing children. We propose a performance-based management system for implementing these legal and scientific insights in the juvenile justice context