Category: Criminal Law

A Strange New Front in the Medicalization of Penality

The headline says it all: “Cops Subject Man To Rectal Searches, Enemas And A Colonoscopy In Futile Effort To Find Drugs They Swear He Was Hiding.” We can at least hope that Rochin has some applicability to colonoscopies.

But the Supreme Court has “upheld invasive strip searches even for those charged with the most minor crimes—–including unpaid traffic fines.” Perhaps the drug war will lead to new job opportunities for medical professionals willing to ensure that various police or military interventions don’t cross the line into Rochin territory.

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Squaring Revenge Porn Criminal Statutes with First Amendment Protections

Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.

Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review. Read More

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Recommended Reading: Avlana Eisenberg’s Expressive Enforcement

Avlana Eisenberg recently posted on SSRN her article “Expressive Enforcement” forthcoming in the UCLA Law Review. The piece makes an important contribution to the literature on hate crimes laws and enriches the literature on expressive theories of law. Eisenberg’s study of hate crimes charging decisions (based on a set of interviews with prosecutors in 23 states) finds some surprising patterns. While the prosecutors Eisenberg spoke to often don’t bother with hate crimes charges in archetypal hate crimes cases (because they already can get a serious conviction for a violent crime, and it’s not worth the difficulty of proving bias motives), many do charge hate crimes in certain kinds of cases that don’t really seem “hate”-related at all–for instance, frauds that target senior citizens. Such crimes may well involve “vulnerable victims,” but they do not involve the kind of group-based animus that hate crimes laws are generally intended to condemn. (I blogged about such prosecutions here). Eisenberg uses this to illustrate a broader point: when we talk about the “expressive message of a law,” we usually are thinking about the message legislators intended to express when they passed the law, or at least some message that is encapsulated, even if unintentionally, by the legislation itself. But the way the law plays out on the ground may be very different, and that affects the way the expressive message is actually heard by communities (and, in this case, risks devaluing it, by turning the threat of hate crimes prosecution into just another instrumental tool in prosecutors’ toolboxes).

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Stanford Law Review Online: Privacy and Big Data

Stanford Law Review

The Stanford Law Review Online has just published a Symposium of articles entitled Privacy and Big Data.

Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.

Read the full articles, Privacy and Big Data at the Stanford Law Review Online.

 

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Putin Gays on the Agenda

When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”

NSA Penalty Proposed

Readers suggested potential penalties for improper gathering or misuse of surveillance data last month.  As revelations continue, Congressmen have recently proposed some new ideas:

Rep. Mike Fitzpatrick (R-Pa.) proposed legislation . . .  that would cut National Security Agency (NSA) funding if it violates new surveillance rules aimed at preventing broad data collection on millions of people.

Fitzpatrick has also offered language to restrict the term “relevant” when it comes to data collection.  On the one hand, it seems odd for Congress to micromanage a spy agency.  On the other hand, no one has adequately explained how present safeguards keep the integrated Information Sharing Environment from engaging in the harms catalogued here and here. So we’re likely to see many blunt efforts to cut off its ability to collect and analyze data, even if data misuse is really the core problem.

Documentary on Indonesian War Crimes Strikes a Chord

TalkShowThe documentary “The Act of Killing” appears to be an extraordinary commentary on the violent anti-communism of Suharto‘s Indonesia. As Francine Prose notes, “the country’s right-wing leaders recruited gangs of thugs to wipe out suspected Communists with messy, improvisatory, but astonishing efficiency; estimates of the number killed during this period range from 500,000 to a million or more.” As in Vietnam, it appears that extremism in the defense of liberty was no vice.

As gangs become a tool of the prison industry in the US (or vice versa), the following observations from participants in the documentary are a striking commentary on the relativity of law in extreme scenarios:

On screen, one unrepentant murderer mocks the notion of human rights: “The Geneva conventions may be today’s morality,” he says, “but tomorrow we’ll have the Jakarta Conventions and dump the Geneva Conventions. War crimes are defined by the winners. I’m a winner. So I can make my own definition.”

When some of “the most important figures in organized crime are employees of multinational companies, politicians and bureaucrats,” the definition of the “criminal” leaves ordinary rule of law principles behind. The problem affects far more countries than the obvious targets of, say, Indonesia, Italy, and India. The “officialization of the criminal” and “criminalization of the official” may well be one of the darkest trends of our already troubled times.

Image: From The Act of Killing (directed by Joshua Oppenheimer), video still of an Indonesian talk show, where the audience applauded the “homicidal exploits” of a “self-described gangsters who” engaged in “brutal campaigns against Communists, ethnic Chinese and critics of the military government.”

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Separation of Powers and Prosecutions

97px-RoberthjacksonI was reading a book about Chief Justice Warren the other day and learned about a case that I knew nothing about.  In Irvine v. California, 347 U.S. 128 (1954), the petitioner was convicted of bookmaking.  To obtain the evidence that supported the conviction, state police went into Irvine’s home four times without a warrant to install hidden microphones (including a bedroom mic) and used the neighbor’s garage as a listening post for a month.  At that time, though, the exclusionary rule did not apply to the states, so the Court affirmed Irvine’s conviction.

Nevertheless, a plurality opinion written by Justice Jackson strongly condemned the police.  Then came this amazing paragraph:

“It appears to the writer, in which view he is supported by THE CHIEF JUSTICE, that there is no lack of remedy if an unconstitutional wrong has been done in this instance without upsetting a justifiable conviction of this common gambler. If the officials have willfully deprived a citizen of the United States of a right or privilege secured to him by the Fourteenth Amendment, that being the right to be secure in his home against unreasonable searches, . . . their conduct may constitute a federal crime under 62 Stat. 696 . . . This section provides that whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant of any state to the deprivation of any rights, privileges or immunities secured or protected by the Constitution of the United States shall be fined or imprisoned . . . We believe the Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States.  However, Mr. Justice REED and Mr. Justice MINTON do not join in this paragraph.”

It’s not unheard of for the Court (or for individual Justices) to call upon Congress to do something.  (Such as amend a statute to correct the Court’s interpretation or provide a remedy where there is none.)  I know of no other example, though, where the Court called upon the DOJ to prosecute somebody.