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Category: Criminal Law

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Welcome to the Blogosphere

To Joel Jacobson, and his new blog “Judging Crimes.” Jacobson, an assistant attorney general in New Mexico, has a number of great posts up already, including this empirical investigation into deterrence and the Fourth Amendment. Here is a taste:

The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police. Lower court judges accept this as fact for a very good reason: the Supreme Court says so. But the rest of us can be little more skeptical. Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary’s fourth amendment jurisprudence has had a deterrent effect.

My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline. As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.

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Law & Order

I’m a Law & Order fan. I love all of them: Original, Criminal Intent, Special Victims, and Trial by Jury. I also like the re-runs—even when I’ve seen an episode before there are always enough twists and turns and details to get my attention.

I’ve often gone to watch scenes being filmed in lower Manhattan. A neighbor in my building is a script checker for the show and so on occasion I’ve also been able to sneak a peek at draft scripts left in the recycling bin.

Though in real life no criminal case is resolved in one hour, Law & Order is pretty good on the substance of the law. The precedents mentioned are typically real cases. The rulings by the judges (at lightening speed) are often correct. I tell my students they can learn a lot by watching.

One curiosity is that most of the judges on Law & Order are black women. This is not realistic. Even in New York City black female judges are few and far between.

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Markel in Slate

My friend and our former co-blogger Dan Markel has a new essay out in Slate on the death penalty that is well worth reading. Dan analogizes the recent news about wrongfully executed Ruben Cantu to the movie “The Life of David Gale.” In the essay, Dan links to his relatively new Harvard CR-CL piece about retributivism and the death penalty, which is also worth a read (although it will take somewhat longer to digest than the Slate piece.)

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The Pretexual Prosecution of an Adult Webmaster

nopicture.jpgEric Goldman (law, Marquette) has a very interesting post about the arrest and prosecution of the operator of an adult website where users could upload photos of people having sex. Goldman writes:

On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).

Let’s assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can’t understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230.

Wilson, the website operator, also allowed military personnel in Iraq and Afghanistan to load up photos of enemy corpses. Goldman writes:

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Dumb and Dumber

criminal2.jpgAnother entry in the annals of dumb criminals. A duo from Australia, dubbed “Dumb and Dumber” by the Australian media, robbed a bank in Vail, Colorado and made off with $130,000.

Tip: Don’t pose for photographs with your loot in hand.

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In the Annals for Dumb Criminals

crackhouse2.jpgTip: If you run a crack house, don’t put up a sign that says “Crack House” when you’re open for business.

According to the article:

Memphis police say brazen drug dealers are behind bars after a sting operation called “Operation Blue Crush”. All is quiet at 3293 Rosamond. That’s because the alleged gang members who took over the house are in jail. Police say the suspects were so bold they advertised the fact that this was a crack house. When they were open for business, they’d flip an address sign over that read “Crack house.”

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Update on Sober = Drunk in Washington DC

Earlier this week, I wrote a post on how people can be arrested for DUI even when they have a BAC well below the legal limit of .08. The Washington Post article I blogged about sparked a considerable public outcry, and now the DC Council is rushing to revise the law. According to a follow-up article in the Washington Post:

D.C. Council members, swamped with irate calls and threats to boycott

D.C. bars and restaurants, introduced emergency legislation yesterday

that would override the police department’s controversial and

little-known zero-tolerance policy for drinking and driving.

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Should We All Be in the National DNA Database?

dna4.jpgThe Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System (“CODIS”), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.

In a press release, Senator Leahy (D-Vermont) states:

Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.

Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.

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Sober = Drunk in Washington, DC

wine2.jpgI’m quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:

Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

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Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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