February 6, 2012
A Fourth Amendment perspective on the virtues of reasonableness review
One of the most interesting and disappointing aspects of the post-Booker sentencing world has been the struggles that federal appellate courts have had giving sensible content to reasonableness review of sentences under the Sentencing Reform Act. For this reason (and others), I always find intriguing any modern thoughtful discussion of the forms of reasonableness review of police practices under the Fourth Amendment.
My OSU colleague Professor Peter Swire has this very timely piece on this very topic now appearing in the Stanford Law Review Online. The piece is headlined "A Reasonableness Approach to Searches After the Jones GPS Tracking Case," and here is how it starts:
In the oral argument this fall in United States v. Jones, several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit. Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?” (The lawyer for the government said yes.) Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He added: “[I]f you win, you suddenly produce what sounds like 1984 . . . .”
Perhaps not surprisingly in light of these questions, on January 23, the Supreme Court voted unanimously that, given the circumstances presented in the case, a search had indeed occurred. The Justices split badly, however, on their reasoning. Five Justices held that it was the physical attachment of the device to the car that constituted a search under the Fourth Amendment. Four Justices concurred in the judgment, finding instead that it was a search because it violated the defendant’s reasonable expectation of privacy.
The split in the Court revealed ongoing uncertainty about the broader questions raised in the Jones argument — particularly regarding how “to prevent the police or the government from monitoring 24 hours a day.” Jones could be decided narrowly because the case involved a physical intrusion of a defendant’s car. Much of modern surveillance, however, occurs without any similar type of physical intrusion. The unanswered questions from the Jones argument thus suggest that the Court is seeking a new, as-yet unarticulated way to constrain police and government discretion to conduct unprecedented surveillance.
The proposal here is that the answer lies in addressing what the Supreme Court in Delaware v. Prouse called “standardless and unconstrained discretion,” and what Justice Sotomayor called “unfettered discretion” in her concurrence in Jones. Supreme Court precedent contains powerful methods for limiting this sort of discretion, primarily in the second step of Fourth Amendment analysis. The first step, and the focus of the dueling opinions in Jones, concerns the definition of what constitutes a “search or seizure.” The second step, once a “search or seizure” exists, is to define its reasonableness. The thesis here is that the reasonableness doctrine offers the best opportunity to respond to the Justices’ concern about unconstrained discretion in high-tech searches. Longstanding precedents under this doctrine require “minimization” of intrusive surveillance and procedural checks against standardless or discriminatory surveillance.
NY Times editorial on "Race and Death Penalty Juries"
Today's New York Times has this new editorial discussing racial issues in the operation of the death penalty. Here are excerpts:
North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.
A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias....
Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.
This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.
February 5, 2012
"Prison beats jail for viewing the Super Bowl"
The title of this post is the headline of this Super Sunday commentary coming out of North Carolina. This piece, which seems like a fitting post before I head into game mode for the afternoon, is authored by Myron Pitts and here are excerpts:
So what's today's big game like for people in the big house? Well, it appears an inmate would be better off in the state pen than in the Cumberland County Jail, if he wants to watch the 46th Super Bowl, which airs at 6:30 p.m.
County jail inmates get about 30 minutes of TV time, says Debbie Tanna, spokeswoman for the Cumberland County Sheriff's Office, which runs the facility. She does not believe that the schedule is adjusted for the Super Bowl, a game that, along with the million-dollar commercials, can stretch more than four hours.
A co-worker of mine, who often plays the sad sack, said, "Knowing my luck, I'd probably get my 30 minutes during half time." (It's Madonna this year, by the way.)
For state prisoners, depending on where they are locked up and their individual circumstances, they might be able to watch the whole game, says Keith Acree, spokesman for the N.C. Department of Correction.
"TV schedules are decided prison-by-prison from the inmates," he said. A committee of inmates haggle over and recommend what shows are broadcast on TVs in the common areas. For male prisoners, Acree said, this usually means "guy" programming, like sports.
There are 36,604 male inmates in North Carolina prisons and 2,613 female inmates, so it's safe to say most prison TVs in the state are serving up a steady diet of sports action.
"TV is a privilege; not every inmate has it," Acree noted. "Those who have the freedom to be in the common areas probably have access to it for the game."
I know it bothers some people that prisoners are allowed to watch TV, but I couldn't care less. I figure they're pretty bored, and TV probably helps maintain order. TV has a pacifying effect, as you can learn from any parent of a young child who has been enraptured by a cartoon....
I also wondered about kinds of TVs available in lockup, and from my limited research, it sounds like they're not necessarily top-of-the-line. I hope this makes people who don't think inmates should have TVs feel a little better.
Acree said the TVs in state prison are paid for out of an inmate welfare fund, which comprises profits from the prison canteen, where inmates buy snacks and sundries, and proceeds from the phone system they use to call out. The TVs are pretty basic and "not extravagant," Acree said.
Justice Scalia bemoans "nickel and dime" criminal cases in federal courts
This AP article reporting on a speech at an ABA event reveals that I am not the only one who thinks the federal criminal docket has gotten way too big. The piece is headlined "Scalia: Routine criminal cases clog federal courts," and here is how it begins:
The federal courts have become increasingly flooded with "nickel and dime" criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday. Scalia told an American Bar Association meeting in New Orleans that he's worried that the nation's highest court is becoming a "court of criminal appeals."
"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable," he said. "I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."
Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."
"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.
Given that the Justices take up less than a few dozen federal criminal appeals each Term, whereas some federal circuit courts have to resolve hundreds of federal criminal appeals each month, I do not think we should feel too sorry for the Justices or worry too much about the Supreme Court becoming a "court of criminal appeals." Indeed, a few decades ago when the Court regularly resolved around 150 cases on the merits each Term instead of the modern norm of about half that many, the Court regularly decided on the merits many more criminal appeals each year that it does now. But there surely now are many, many more petitions for cert in criminal cases these days.
Even though I suspect that Justice Scalia's complaints are mostly a function of his disinterest in most federal criminal matters — especially all the technical statutory drug cases and Armed Career Criminal Act cases the Court has taken up in recent Terms — I still think he is spot-on when lamenting that "too much routine criminal stuff ... has been pouring into the federal courts that should have been left to the state courts."