Welcome to ACLR Online! While our blog program, Mens Rea, has been a great success, the ACLR has chosen to expand our online content beyond our student contributors. ACLR Online will host legal scholars and practitioners in addition to student work. You will also find our online content available through Westlaw.
While lawyers and activists fighting for transgender rights have been temporarily halted in their efforts, theorists, poets, and artists are taking the lead in advancing the conversation about gender fluidity and the plight of people with non-binary gender identities. This essay is about what practitioners who combat implicit bias in the legal profession can learn from artists and thinkers on the cutting edge of gender-nonconforming expression. Understanding how individuals stigmatize, and at times discriminate against, people who are gender fluid by limited and binary thinking is an important progression in comprehending how implicit bias (specifically against people of color) becomes explicit and influences legal actors including law enforcement, jurists, and jurors.
This article focuses on the state of the law in the wake of McDonnell. Ultimately, this article predicts that because the McDonnell Court limited the realm of acts satisfying the definition of bribery contained in the more-commonly-charged provisions of the federal bribery statute, federal prosecutors will now attempt to make more use of the lesser-charged, broader sections of the statute in prosecuting public officials for engaging in honest services fraud schemes involving bribery.
At common law, a law enforcement officer who witnesses a crime can make a warrantless misdemeanor arrest so long as the alleged crime was committed in his presence. This requirement has traditionally meant that the arresting officer is physically present at the scene of the crime and witnessed the offense first-hand. What if the officer were to witness the crime from a remote location via live surveillance technology? On the one hand, he is ‘present’ because he can see and hear the crime as if actually on the scene. Conversely, he is not physically present at the scene. Courts have interpreted this “presence” requirement in the context of live video surveillance to mean “physically proximate. However, this view has limited practical application and workability. Instead, the presence requirement in this context should be “in the view,” which speaks more to the purpose of the requirement.
Advocates have long argued for restrictions on gun ownership for convicted domestic violence offenders. In 1996, Congress took action and amended the 1968 Federal Gun Control Act to ban certain convicted domestic violence offenders from possessing firearms. Yet, a combination of factors has led to a resurgence in the debate over the adequacy of the Lautenberg Amendment, including the #MeToo movement’s renewed public focus on gender-based violence and several recent mass shootings committed by domestic violence offenders. Some of the most thoughtful proposals aim to expand the reach of the Lautenberg Amendment’s prohibition on gun ownership to dating partners instead of just spouses, co-habitants, and fellow parents. These proposals are driven by the recognition that “[d]angerous boyfriends can be just as scary as dangerous husbands,” and “they hit just as hard and they fire their guns with the same deadly force.” This is an important observation, and lays bare the need for further legislation to protect women in relationships with abusive dating partners from gun violence.
Revenge porn affects millions of Americans. Advancements in technology have facilitated cellphone and internet users’ abilities to access and distribute sexual images and videos of individuals. A recent study by the Data & Society Research Institute found that roughly one in twenty-five Americans have either had intimate images posted without their consent, or have had someone threaten to post such images. Out of these millions of citizens, young people between the ages of fifteen and twenty-nine—particularly women—are most likely to be targeted.
The constitutional right for defendants to represent themselves was formally recognized by the United States Supreme Court in the 1978 case Faretta v. California. While there are many legitimate reasons for a defendant to wish to proceed pro se—including a desire to address a jury without taking the stand, a distrust of the legal system, or a belief that their attorney is not adequately representing their case—a defendant’s choice to represent themselves may also be triggered by a desire to intimidate or punish their victims. To combat these potential evils, judges must be consistent and proactive in extending protections to victims of sexual assault who are facing pro se defendants.
Participants in drug courts, whether presentence or post-incarceration, waive many of their basic Constitutional rights. While a good deal of scholarly and judicial attention has been paid to the Establishment Clause, Fourth Amendment, and Due Process concerns raised by these waivers, perhaps no concern is as fundamental as the transformation of the adversarial process itself. While a program’s “team” structure allows it to function as a goal-oriented body aimed at recovery for individual participants, it also means that (aside from occurring in a courthouse) drug court programs actually have very little in common with traditional courts. This Note will seek to address two concerns that arise from this distinctive structure: first, that judges often struggle to remain impartial as part of drug court teams, and second, that defense attorneys have difficulty strike a balance between zealously representing their clients and working cooperatively with probation officers and prosecutors. A uniform act regulating drug courts can help mitigate both concerns by providing a clear set of ethical standards for judges and lawyers to abide by.
This article addresses the novel situation that has arisen with the advent of new technology: whether law enforcement may legally inspect your bag (or other personal belongings) with live surveillance technology in a public area, particularly when no one else is nearby. The United States Supreme Court has clearly held that police may not physically open and examine the contents of a container absent a particularized warrant. But what are the privacy expectations for the visual examination of the effects we carry, such as purses, backpacks, briefcases, duffel bags, etcetera? How might these expectations be changing with the advent of new technology and methods of surveillance?
Warren and its progeny may indicate a larger strategy for state courts to reach different conclusions than their federal counterparts when opining on federal questions over which they share concurrent jurisdiction. Simultaneously, the opinion may demonstrate how states might further expand their citizens’ positive rights and liberties under their own constitutions.This post will briefly review Warren, specifically evaluating the unique interplay between the federal and state judiciaries in defining the limits of criminal defendants’ constitutional rights. The post will then explore the extent to which Warren attempts to expand the contours of its subjects’ positive liberties. The post then debates whether the Supreme Judicial Court’s efforts are sufficiently rooted in and analyzed under the Commonwealth’s Constitution and jurisprudence, which would shield the court’s decisions from federal review. To the extent that such efforts may not be, the post discusses ways in which Massachusetts courts could further safeguard citizens’ constitutionally guaranteed liberties.
Many people, including people well versed in the criminal justice system, have a hard time understanding why a suspect would confess to a crime that they did not commit. False confessions occur more frequently than one might expect. Of the 1,900 false confessions in the National Registry of Exonerations, about 12% were caused by false confessions. Of the DNA exonerations in the United States, 28% involved false confessions. Many of these false confessions are a result of the Reid interrogation technique, which most police officers use. This piece argues that because Miranda rights are minimally effective at protecting against false confessions in the context of such a technique, state legislatures should take additional protective measures. Recording all interrogations and allowing experts to more freely testify about what causes false confessions would help to reduce the considerable damage of false confessions. According to Saul Kassin, an expert on false confessions, “[o]nce the confession is taken, it trumps everything else, it trumps DNA evidence, its effects cannot be reversed.”
Under current Fourth Amendment doctrine, when someone takes a deliberate step to install a microphone in her home with knowledge that her interactive data will be transmitted to a third party, she has no reasonable expectation of privacy. But a more nuanced question arises when someone who is not the device owner is recorded without consent, and the recording is requested without a warrant. This piece will discuss Alexa’s role in a recent murder trial and how the device could have potentially recorded and stored incriminating evidence. The discussion will follow with an inquiry into whether existing state consent laws can be reconciled with the existing third-party doctrine in order to match the privacy expectations of visitors to an Alexa-enhanced home.
Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system. Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support. As prosecutions for SSC accelerate—and in the absence of swift and meaningful reform—federal courts will continue to sentence defendants via a base-offense range that was never justified.
Absent an effective legislative response at the federal level, several grassroots movements have emerged in recent years, calling upon the criminal justice system to effect meaningful change in policing communities of color. While marginalized communities of color are subjected to police force, the Massachusetts court’s opinion suggests a shift away from decades-long precedent that has traditionally granted law enforcement broad discretion in search and seizure. The court’s approach in Commonwealth v. Warren is a welcome recognition of the extent to which an individual’s race plays a role in determining whether a police officer will subject him to a seizure. This piece discusses the extent to which this decision may expand an individual’s privacy rights vis-à-vis conduct that permits police officers to execute a lawful search or seizure.
The prospect of an individual from the other side of the world successfully funneling tainted cash into a bank account is truly any criminal’s dream, especially when there is no trace of the true sender or information on the legal status of the money. Today, the advent of digital currencies allows the transmission of money between computers, phones, and other wirelessly connected devices within a matter of seconds. Encrypted data carrying virtual currency can be unlocked from any remote location where there is a wireless connection. Until recently, the exchange of virtual currency into fiat currency was accomplished through a centralized intermediary that was explicitly covered as a “money transmitter” under the Bank Secrecy Act (“BSA”). Money transmitters are legally required to comply with numerous reporting requirements in place to prevent money laundering and other illegal activities. Bitsquare—an application that allows its users to buy and/or sell bitcoins in exchange for foreign currency—operates as if currency is exchanged in person and subsequently deposited into a bank account without ever being held onto by any middleman. Bitsquare’s decentralized, peer-to-peer network is thus unlikely to fall under the current definition of a “money transmitter.” This piece will introduce the reader to the general framework of the most popular virtual currency, Bitcoin, and discuss its various components. I will discuss the existing regulatory requirements for conventional currency exchanges under the BSA and the Anti-Money Laundering statute (“AML”) and examine how Bitsquare’s exchange platform may potentially facilitate the circumvention of current requirements and curtail their preventive effect.
Deinstitutionalization, the process of moving the mentally ill out of large state-run institutions, was predicated in part on the assumption that individuals would be able to utilize community-based health care to meet their needs. Despite this belief, adequate funding for these resources never materialized, leading to the unprecedented incarceration of the mentally ill. Though a comprehensive solution to this pervasive problem will not be quick or inexpensive, the system needs reform. There are several possible routes for reform. One option is to promote diversion programs that reduce the number of those incarcerated and mentally ill. Another option is to promote programs designed to provide adequate levels of care and continuing support to the mentally ill already in the penal system to reduce recidivism rates. Both options have shown promise in states where they are used. However, until more states establish diversion programs with properly-equipped facilities, the most viable option is to make sure those already in the penal system are receiving proper care.
The Supreme Court recently weighed different interpretations of insider trading liability in Salman v. United States. The first piece of this two-part series dealt with the arguments of the parties and the muddled case law. Courts have struggled with conflicting interpretations of the "classical theory" of insider trading as stated in the seminal case of Dirks v. SEC. The previous uncertainty in cases such as Salman comes from the following question: under what circumstances can a tippee (a person receiving confidential corporate information) be held liable for insider trading? Dirks held that the test to trigger liability is whether the corporate insider will in some way personally benefit from his disclosure to the tippee. It also held that liability derivatively extends to the tippee only if the tippee has reason to know that the information was disclosed in breach of a fiduciary duty. The Court in Salman, by simply reaffirming Dirks, missed an opportunity to significantly clarify tippee liability. While Salman involved a close relationship between brothers-in-law, lower courts will continue struggling to define whether a more remote relationship is sufficient to satisfy Dirks' "personal benefit" test. This piece discusses tippee liability under Dirks and argues that the Court in Salman should have read Dirks through the lens of the subsequent case, United States v. O'Hagan, rather than repeat a similarly imprecise ruling. In doing so, the Court could have incorporated useful elements of the "misappropriation theory" of liability for tippees.
The intersection between the prison system and the treatment of the mentally ill in America is prominent. According to one report, more than half of all inmates in jails and prisons have some kind of mental illness. The odds of a mentally ill person being put in jail or prison rather than a hospital in 2004–2005 were 3.2 to 1. Despite housing such a sizable population of mentally ill inmates, many prisons lack adequate resources and training to address treatment for mentally ill inmates. The American criminal-justice system currently handles mentally ill offenders in a way that is both unhelpful to inmates and expensive to maintain. Though the shift away from large, state-run asylums was undertaken by the states with the health of patients in mind, it has been ultimately harmful for many mentally ill individuals and a strain on the prison system. This is piece is the first of a two-part series exploring deinstitutionalization in America. This piece focuses on the history of deinstitutionalization and the current state of the incarcerated mentally ill population. The forthcoming piece introduces and evaluates proposed strategies for reform.
In today’s pop-culture climate, there is no shortage of shows depicting the American criminal justice system. In the 2015–2016 season, thirteen of the top fifty shows on broadcast network television (based on viewership) were crime dramas or police procedurals. 1 Thirteen new network shows of the 2016–2017 season have some kind of criminal justice element.2 Law and Order: Special Victims Unit is currently the longest-running scripted, non-animated U.S. primetime series, followed closely by NCIS, another procedural.3 The public’s fascination with the criminal justice system is thus reflected in these media sensations.
Many Americans get their knowledge of the criminal justice system from these television programs, rather than personal experience.4 Given the overwhelming popularity of the genre, this piece explores the potential effects these programs have on the criminal justice system. Evidence suggests that crime media affects the general public’s perception of crime, and commentators have spoken extensively on the effect that crime dramas supposedly have on jury members. Although it is not clear whether these programs have any significant effects on the outcome of trials, evidence suggests that any such effects are more closely correlated to influences on attorneys, rather than influences on jury members.
On Wednesday, October 5th, the Supreme Court heard oral arguments in Salman v. United States, an insider trading case involving an investment banker who provided his brother with information about pending confidential business transactions. The brother, in turn, shared the information with his brother-in-law, defendant Bassam Salman. The case is about when a “remote tippee”—a person who is steps removed from an insider source and trades on inside information—can be held criminally liable for trading on the information. The Ninth Circuit held that because the tippee had a “close familial relationship” with the inside source, he could be held criminally liable. This stands in contrast with the Second Circuit’s 2014 holding in United States v. Newman that the exchange of information must pose potential pecuniary gain for the insider who made the first disclosure, in order for a remote tippee to be found criminally liable. On its face, Salman is a vehicle for the Court to resolve the circuit split on this narrow issue. However, oral arguments indicated that the Court may also use Salman as an opportunity to examine and speak on the fundamental purposes of insider trading law. This article is part of a two-part series about Salman. This piece presents Salman’s background and prior insider trading cases to shed light on the precedential ambiguities the Court confronted during oral arguments. It further discusses the flaws in both Salman’s and the government’s arguments and potential repercussions of the Supreme Court adopting either of the dueling standards. The second piece in this series will explore scholars’ proposals seeking to resolve the present difficulty of determining tippee liability by focusing on whether the confidential information was misappropriated.
The brain plays an integral role in criminal law, whether it comes to determining what a defendant was thinking at the time of a crime or what behavior a convict is predisposed to commit in the future. Neuroscience provides a potential avenue to better understand these mental aspects of criminal trials. As the scientific field continues to grow and change, courts should be careful about the way in which they use neuroscience evidence and what weight such evidence is given.
Since the Snowden revelations, law enforcement agencies’ broad technological surveillance tactics have come under greater public scrutiny. One such surveillance technique is the StingRay, which is a device used to gather information. Unlike other devices, the StingRay can collect serial numbers and locations from surrounding cell phones without the phone owners’ knowledge. StingRays are substantially different than previous phone-tracking technology, as they are not only capable of revealing phones’ location, but they also record phone numbers and the content of voice and text communication. Law enforcement agencies go to great lengths to keep StingRays mired in obscurity and maintain their secrecy. As these devices are challenged in courts, their use implicates numerous, unaddressed concerns under the Fourth Amendment.
Recently, the Supreme Court of Kansas overturned a conviction based on police officers’ failure to honor the defendant’s assertion of his right to remain silent. The court held that the defendant’s statement, “This—I guess where, I, I’m going to take my rights . . . ” was an invocation of the right to remain silent, regardless of the wavering words “I guess” and the defendant’s follow-on assertion that he wanted to continue helping the police. The defendant’s ambiguous invocation could have resulted from the failure of the Miranda warning he received to specify how to assert his rights. To reduce instances of ambiguous invocation, the Supreme Court should revise Miranda warnings to specify words sufficient to invoke Fifth Amendment Miranda rights.
Immigration law finds its roots early in the creation of the United States. The Constitution gives Congress the power to enact laws governing the naturalization of non-citizens, underscoring the importance of both immigration and citizenship to this country. The subsequent Naturalization Act of 1790 laid down the first requirements for obtaining citizenship and helped set the precedent that immigration status, particularly citizenship, was a benefit to be given at the discretion of the government. Throughout the history of the United States, immigration law has developed into a complex area of civil law, reflecting the view that immigration law is a type of public benefit law. Immigrants who come to the United States are allowed to do so out of the good will of our lawmakers and our citizens. Thus, the taking away of immigration status should not be looked at as a punishment, but rather as a remedy for violating the laws of American society. This notion has been well established in immigration law since the Supreme Court’s decision in Fong Yue Ting v. United States, in which the Court held that, because deportation was not a punishment for a crime, constitutional due process protections were not implicated in removal proceedings.
New Hampshire is poised to be the first state in the country to pass legislation requiring judges to inform juries of their right to “nullify.” Jury nullification has existed since the nation’s founding and allows juries to acquit defendants in cases where conviction would proper under the law but would result in an unjust verdict. The Supreme Court, however, has held that judges are not required to tell juries of their right to nullify, and some states have even allowed arresting individuals who inform juries of their right to nullify. New Hampshire’s move towards requiring judicial instructions about jury nullification is thus exciting and daunting all at the same time—it is an opportunity to see what could happen if juries really know about nullification.
Police departments commonly use drug dogs to detect the presence of illegal narcotics. In a recent case, United States v. Beene, the Fifth Circuit held that the use of a dog to find narcotics within a car parked in the defendant’s driveway was not a search. The Fifth Circuit erred in its reasoning. The scenario in Beene constituted a search, and the Supreme Court should evaluate the Fifth Circuit’s decision.
Fred Robinson was placed on probation for eleven months and twenty-nine days after he was unable to pay a $2500 fine for misdemeanor marijuana charges.1 The court in Rutherford County, Tennessee placed his case under the care of a private probation service— a for-profit company managing Mr. Robinson’s probation. Over four years later, Mr. Robinson is still paying back his debt.2 He has been unable to pay off the fine and the additional fees and penalties that the private probation companies have levied against him. Moreover, Mr. Robinson suffers from health conditions that make him dependent on a disability public benefits.3 The only violations he committed during his probation were failures to pay these fines, which can lead to jail time.4 As such, Mr. Robinson, like so many other indigent probationers, is trapped in a system that ultimately extracts far more than just the initial court-imposed fine and can eventually lead back to incarceration. These private probation practices have come under scrutiny in recent years. Though due process challenges have largely failed, recent cases comparing private probation to unconstitutional debtors’ prisons and bills in state and federal legislatures suggest solutions to ending private probation.
While there is some contention amongst different advocacy groups over whether the Supreme Court’s decision in Miller is a step in the right direction, most experts agree that juveniles have the capacity to change, and the Court’s decision in Montgomery is only one in a long line of recent cases that have reformed the ways in which the Eighth Amendment provides additional protections to juveniles convicted of crimes.
The Hobbs Act was adopted in 1946 to combat what was, at the time, most frequently referred to as “extortion,” “paying of tribute,” or, more colorfully, “highway robbery.” Though the Hobbs Act may have been designed to affect only those “robberies” occurring on the highway, its reach has since grown much larger. In United States v. Culbert, the Supreme Court held that the Hobbs Act was not limited to acts of racketeering but included robbery and extortion traditionally addressed through state laws.
In Commonwealth v. Doleras, the Supreme Judicial Court of Massachusetts upheld a warranted search of a defendant’s iPhone photo library and found that the warrant affidavit showed probable cause to justify searching the entire phone. The court, in validating the search warrant, set a narrow scope for Massachusetts’ Fourth Amendment protections against unreasonable searches of smartphones. The court’s decision also highlights the challenge U.S. courts face in defining the bounds of the Fourth Amendment right against unreasonable search and seizure as applied to increasingly sophisticated technology.