Category: Criminal Procedure

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Maryland v. King: What’s a “serious offense” (and, is the Fourth Amendment transsubstantive)?

This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute.  One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.

The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense?  This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact under King’s “serious offense” limiting principle.

While the task of determining the seriousness of an offense as a triggering condition for a legal rule can be difficult–particularly in light of the patchwork of criminal laws that forms the quilt of our fifty-state, federalist system–it is not outside the province of what courts do. For instance, in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the Supreme Court had to decide whether state or federal standards should apply in determining whether a person convicted of a second state drug possession offense committed an “aggravated felony” under the immigration laws, and was therefore subject to automatic deportation. (The Court ultimately held the drug possession conviction was not an aggravated felony).

Is the Fourth Amendment transsubstantive (and should it be)?

More generally, King’s “serious offense” principle raises questions about whether the Fourth Amendment is, or remains, transsubstantive.  The Supreme Court has previously suggested the Fourth Amendment is transsubstantive–namely, that all other things equal, the Fourth Amendment applies the same way regardless of the severity of the underlying crime that’s being investigated.  (Though I’m not familiar with the scholarship on this issue, it appears scholars agree this is the governing rule: see here and here).

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Maryland v. King: Are suspiconless DNA searches permissible for crime solving or suspect identification? (Probably, both).

dnaI’m thrilled to be guest-blogging at Concurring Opinions just in time for Maryland v. King, the Supreme Court’s decision today on the constitutionality of DNA testing. The Court held (5-4) that the police’s collection (and testing) of King’s DNA after his arrest for a violent crime, and pursuant to Maryland’s public safety statute, was a reasonable search under the Fourth Amendment.

Though the case’s up/down holding is straightforward enough, the majority’s rationale is not. Read in a vacuum, the majority opinion reads as a full-throated legal and policy defense of the government’s use of DNA to verify a suspect’s identification at various stages following a lawful arrest.

But this case—and indeed, the Maryland statute at issue—was not merely about the use of DNA testing for a routine purpose ancillary to police investigations, such as verifying a suspect’s identification. It was, instead, also about the use of suspicionless DNA searches as part of the police’s quintessential activity: investigating and solving crimes.  And that is precisely the conduct which the majority’s opinion authorizes.  (Do read Justice Scalia’s dissent, which argues this point persuasively).

In that vein, here’s what I take to be the majority’s honest holding: the government can engage in suspicionless and warrantless DNA searches of a suspect, including for investigating and solving crimes, in at least one context—when the subject of the search is lawfully arrested for a serious, even if unrelated, offense; and the search is performed as part of a routine, bounded, post-arrest procedure.

The police’s legitimate need to verify an arrestee’s identity, which takes up most of the majority opinion, is weak justification for this exception to the individualized suspicion and warrant requirements.  The more plausible arguments supporting the majority’s holding are, instead, to be found (one might argue, buried) in Part V of the opinion:  Suspicionless DNA searches are permissible in this context because persons lawfully arrested for violent crimes have diminished privacy rights, and DNA swabbing and testing within the bounds of the Maryland statute is (the Court says) relatively unintrusive in light of those diminished rights.  (The Court calls these the “circumstances” of “diminished expectations of privacy [and] minimal intrusions,” citing McArthur, 531 U. S., at 330).

The Court’s decision in King is important and will have potentially far-ranging effects on how police conduct investigations. Even assuming the Court reached the right result (a question I haven’t addressed in this post), the case’s key question merited a more direct and forthright discussion than the majority opinion provides.  For this reason alone, the majority invited, indeed, deserved, every quip and jab in Justice Scalia’s dissent.

The case raises some (but perhaps not so many) interesting doctrinal questions, which I’ll explore in a later post.

 

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Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus

A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.” 

The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)

Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:

“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”

Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.

“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”

Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”

 “The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus’] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”

Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.

The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing. Read More

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Overturning the Third-Party Doctrine by Statute: Hard and Harder

Privacy advocates have disliked the third-party doctrine at least from the day in 1976 when the Supreme Court decided U.S. v. Miller.  Anyone who remembers the Privacy Protection Study Commission knows that its report was heavily influenced by Miller.  My first task in my long stint as a congressional staffer was to organize a hearing to receive the report of the Commission in 1977.  In the introduction to the report, the Commission called the date of the decision “a fateful day for personal privacy.”

Last year, privacy advocates cheered when Justice Sonia Sotomayor’s concurrence in U.S. v. Jones asked if it was time to reconsider the third-party doctrine.  Yet it is likely that it would take a long time before the Supreme Court revisits and overturns the third-party doctrine, if ever.  Sotomayor’s opinion didn’t attract a single other Justice.

Can we draft a statute to overturn the third-party doctrine?  That is not an easy task, and it may be an unattainable goal politically.  Nevertheless, the discussion has to start somewhere.  I acknowledge that not everyone wants to overturn Miller.  See Orin Kerr’s The Case For the Third-party Doctrine.  I’m certainly not the first person to ask the how-to-do-it question.  Dan Solove wrestled with the problem in Digital Dossiers and the Dissipation of Fourth Amendment Privacy.

I’m going at the problem as if I were still a congressional staffer tasked with drafting a bill.  I see right away that there is precedent.  Somewhat remarkably, Congress partly overturned the Miller decision in 1978 when it enacted The Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq.  The RFPA says that if the federal government wants to obtain records of a bank customer, it must notify the customer and allow the customer to challenge the request.

The RFPA is remarkable too for its exemptions and weak standards.  The law only applies to the federal government and not to state and local governments.  (States may have their own laws applicable to state agencies.)  Bank supervisory agencies are largely exempt.  The IRS is exempt.  Disclosures required by federal law are exempt.  Disclosures for government loan programs are exempt.  Disclosures for grand jury subpoenas are exempt.  That effectively exempts a lot of criminal law enforcement activity.  Disclosures to GAO and the CFPB are exempt.  Disclosures for investigations of crimes against financial institutions by insiders are exempt.  Disclosures to intelligence agencies are exempt.  This long – and incomplete – list is the first hint that overturning the third-party doctrine won’t be easy.

We’re not done with the weaknesses in the RFPA.  A customer who receives notice of a government request has ten days to challenge the request in federal court.  The customer must argue that the records sought are not relevant to the legitimate law enforcement inquiry identified by the government in the notice.  The customer loses if there is a demonstrable reason to believe that the law enforcement is legitimate and a reasonable belief that the records sought are relevant to that inquiry.  Relevance and legitimacy are weak standards, to say the least.  Good luck winning your case.

Who should get the protection of our bill?  The RFPA gives rights to “customers” of a financial institution.  A customer is an individual or partnership of five or fewer individuals (how would anyone know?).  If legal persons also receive protection, a bill might actually attract corporate support, along with major opposition from every regulatory agency in town.  It will be hard enough to pass a bill limited to individuals.  The great advantage of playing staffer is that you can apply political criteria to solve knotty policy problems.  I’d be inclined to stick to individuals.

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Autonomous Vehicles: Unintended Upsides and Changes

Some day we might do away with pretext traffic stops, because some day autonomous vehicles will be common. At ReInventlaw Silicon Valley, David Estrada from GoogleX, made the pitch for laws to allow autonomous vehicles a bright future. He went to the core reasons such fuel sustainability and faster commutes. He also used the tear jerking commercial that showed the true benefits of enabling those who cannot drive to drive. I have heard that before. But I think David also said that the cars are required to obey all traffic laws.
If so, that has some interesting implications.

I think that once autonomous vehicles are on the road in large numbers, the police will not be able to claim that some minor traffic violation required pulling someone over and then searching the car. If a stop is made, like the Tesla testing arguments, the car will have rich data to verify that the car was obeying laws.

These vehicles should also alter current government income streams. These shifts are not often obvious to start but hit home quickly. For example, when cell phones appeared, colleges lost their income from high rates for a phone in a dorm room. That turned out out to be a decent revenue stream. If autonomous vehicles obey traffic laws, income from traffic violations should go down. Cities, counties, and states will have to find new ways to make up that revenue stream. Insurance companies should have much lower income as well.

I love to drive. I will probably not like giving up that experience. Nonetheless, reduced traffic accidents, fewer drunk drivers, more mobility for the elderly and the young (imagine a car that handled shuttling kids from soccer, ballet, music, etc., picking you up, dropping you home, and then gathering the kids while you cooked a meal (yes, should I have kids, I hope to cook for them). The time efficiency is great. Plus one might subscribe to a car service so that the $10,000-$40,000 car is not spending its time in disuse most of the day. Add to all that a world where law enforcement is better used and insurance is less needed, and I may have to give in to a world where driving myself is a luxury.

Coates on Racism

I found this a particularly powerful column by Ta-Nehisi Coates on the frisking of Forest Whitaker at a New York City deli:

Last month the actor Forest Whitaker was stopped in a Manhattan delicatessen by an employee. Whitaker is one of the pre-eminent actors of his generation. . . Since the Whitaker affair, I’ve read and listened to interviews with the owner of the establishment. He is apologetic to a fault and is sincerely mortified. He says that it was a “sincere mistake” made by a “decent man” who was “just doing his job.” I believe him.

We can forgive Whitaker’s assailant. Much harder to forgive is all that makes Whitaker stand out in the first place. New York is a city, like most in America, that bears the scars of redlining, blockbusting and urban renewal. The ghost of those policies haunts us in a wealth gap between blacks and whites that has actually gotten worse over the past 20 years. But much worse, it haunts black people with a kind of invisible violence that is given tell only when the victim happens to be an Oscar winner.

The “invisible violence” extends to the newsmagazine of NYC’s billionaire mayor, to his law enforcement policies. Implicit bias is pervasive. We need not accuse any particular person of evil intent to observe the corrosive structures that reinforce it.

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In Honor of Alan Westin: Privacy Trailblazer, Seer, and Changemaker

Privacy leading light Alan Westin passed away this week.  Almost fifty years ago, Westin started his trailblazing work helping us understand the dangers of surveillance technologies.  Building on the work that Warren and Brandeis started in “The Right to Privacy” in 1898, Westin published Privacy and Freedom in 1967.  A year later, he took his normative case for privacy to the trenches.  As Director of the National Academy of Science’s Computer Science and Engineering Board, he and a team of researchers studied governmental, commercial, and private organizations using databases to amass, use, and share personal information.  Westin’s team interviewed 55 organizations, from local law enforcement, federal agencies like the Social Security Administration, and direct-mail companies like R.L. Polk (a predecessor to our behavioral advertising industry).

The 1972 report, Databanks in a Free Society: Computers, Record-Keeping, and Privacy, is a masterpiece.  With 14 case studies, the report made clear the extent to which public and private entities had been building substantial computerized dossiers of people’s activities and the risks to economic livelihood, reputation, and self-determination.  It demonstrated the unrestrained nature of data collection and sharing, with driver’s license bureaus selling personal information to direct-mail companies and law enforcement sharing arrest records with local and state agencies for employment and licensing matters.  Surely influenced by Westin’s earlier work, some data collectors, like the Kansas City Police Department, talked to the team about privacy protections, suggesting the need for verification of source documents, audit logs, passwords, and discipline for improper use of data. Westin’s report called for data collectors to adopt ethical procedures for data collection and sharing, including procedural protections such as notice and chance to correct inaccurate or incomplete information, data minimization requirements, and sharing limits.

Westin’s work shaped the debate about the right to privacy at the dawn of our surveillance era. His changing making agenda was front and center of  the Privacy Act of 1974.  In the early 1970s, nearly fifty congressional hearings and reports investigated a range of data privacy issues, including the use of census records, access to criminal history records, employers’ use of lie detector tests, and the military and law enforcement’s monitoring of political dissidents. State and federal executives spearheaded investigations of surveillance technologies including a proposed National Databank Center.

Just as public discourse was consumed with the “data-bank problem,” the courts began to pay attention. In Whalen v. Roe, a 1977 case involving New York’s mandatory collection of prescription drug records, the Supreme Court strongly suggested that the Constitution contains a right to information privacy based on substantive due process. Although it held that the state prescription drug database did not violate the constitutional right to information privacy because it was adequately secured, the Court recognized an individual’s interest in avoiding disclosure of certain kinds of personal information. Writing for the Court, Justice Stevens noted the “threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.”  In a concurring opinion, Justice Brennan warned that the “central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.”

What Westin underscored so long ago, and what Whalen v. Roe signaled, technologies used for broad, indiscriminate, and intrusive public surveillance threaten liberty interests.  Last term, in United States v. Jones, the Supreme Court signaled that these concerns have Fourth Amendment salience. Concurring opinions indicate that at least five justices have serious Fourth Amendment concerns about law enforcement’s growing surveillance capabilities. Those justices insisted that citizens have reasonable expectations of privacy in substantial quantities of personal information.  In our article “The Right to Quantitative Privacy,” David Gray and I are seeking to carry forward Westin’s insights (and those of Brandeis and Warren before him) into the Fourth Amendment arena as the five concurring justices in Jones suggested.  More on that to come, but for now, let’s thank Alan Westin for his extraordinary work on the “computerized databanks” problem.

 

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DPAs and Corporate Governance

In this season’s law review submission process, I am circulating an article about deferred prosecution agreements (DPAs) and corporate governance.    DPAs are controversial tools increasingly-used to settle corporate criminal cases, usually without indictment. Targets admit facts, pay fines and promise governance reforms—such as replacing officers, adding directors and prescribing reporting lines.

Some view DPAs as coerced extractions of overzealous prosecutors, while others say they are mere whitewash that let corporate crooks off the hook. The weight of commentary urges prosecutors to get out of this business, to avoid corporate governance entirely, while some wonder why the intrusions are not deeper and more frequent.

I explain why prosecutors should invest in corporate governance and take a measured approach to reforming it. Ignoring governance can be perilous and embracing it can produce more effective reforms.

My diagnosis indicates a lack of both investment and transparency so I make two prescriptions: prosecutors should profile the corporate governance of businesses they target at the outset and publicly articulate rationales for reforms when settling.

The paper first surveys the landscape of contemporary corporate governance, stressing two normative points. First: one-size-does-not fit all. Corporate governance varies enormously from company to company, depending on such factors as ownership structures, management characteristics and employment policies. Second: failure to appreciate that poses serious risks, always to given companies, and sometimes to the economy at large.

That is the proper lesson to draw from the 2002 case of Arthur Andersen, where an indictment destroyed the auditing firm because it was a partnership owned and managed by its members in the veracity business.

Instead, prosecutors took a broader and cruder lesson: that they should always be averse to indicting any large business. The result of that aversion has been the proliferation of DPAs—which, despite controversy and criticism, is not necessarily a bad effect, so long as these lessons are incorporated into their production.

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