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Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John Stinneford
Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John Stinneford
John F. Stinneford
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. …
Light In The Darkness: How Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald
Light In The Darkness: How Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald
Susan Freiwald
This article measures the new ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records (LEATPR Standards) success by assessing the guidance they provide legislators interested in updating pertinent law regarding one specific type of data. Scholars should not expect the Standards to yield the same conclusions they would have furnished had they been able to draft a set of standards by themselves. The Standards emerged after years of painstaking consensus building and compromise no individual committee member got entirely what he wanted. Nonetheless, not every product of a committee turns out to have been worth the effort, …
Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald
Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald
Susan Freiwald
Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance …
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
Susan Freiwald
The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …
The Modern History Of Probable Cause, Wesley Oliver
The Modern History Of Probable Cause, Wesley Oliver
Wesley M Oliver
It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never has been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to …
Material Witness Detentions After Al-Kidd, Wesley M. Oliver
Material Witness Detentions After Al-Kidd, Wesley M. Oliver
Wesley M Oliver
The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest …
Lawyers And The War, Robert Power