Criminal Law Commons^™

False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan

Scholarly Publications

No abstract provided.

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …

Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson

Scholarly Publications

No abstract provided.

Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch

Florida State University Law Review

No abstract provided.

Fixing Bail, Samuel R. Wiseman

Scholarly Publications

A large portion of the jail population consists of criminal defendants whose guilt has yet to be established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford the bond set by a …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Applying The 'Cuffs: Consistency And Clarity In A Bright-Line Rule For Arrest-Like Restraints Under Miranda Custody, Luis Then

Florida State University Law Review

No abstract provided.

Cutting Cops Too Much Slack, Wayne A. Logan

Scholarly Publications

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

Pretrial Detention And The Right To Be Monitored, Samuel R. Wiseman

Scholarly Publications

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, electronic monitoring has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants …

After The Cheering Stopped: Decriminalization And Legalism's Limits, Wayne A. Logan

Scholarly Publications

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for …

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Scholarly Publications

This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.

Policing Identity, Wayne A. Logan

Scholarly Publications

Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …

Brady, Trust, And Error, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Mcdonald's Other Right, Samuel L. Wiseman

Scholarly Publications

No abstract provided.

"Mosaic Theory" And Megan's Laws, Wayne A. Logan

Scholarly Publications

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational …

Police Mistakes Of Law, Wayne A. Logan

Scholarly Publications

This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts condone seizures based on what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for unrelated, more serious offenses (usually relating to guns or drugs). The Article surveys the important rule-of-law, separation-of-powers, and legislative-accountability reasons supporting continued judicial adherence to the historic no-excuse …

Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium addressing indigent defense-related issues, examines litigation challenging a Florida law that expressly prohibits courts from granting public defender motions to withdraw on the basis of an alleged conflict of interest caused by excessive caseload or underfunding.

Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …

Reasonableness As A Rule: A Paean To Justice O'Connor's Dissent In Atwater V. City Of Lago Vista, Wayne A. Logan

Scholarly Publications

This paper, part of a symposium dedicated to “great” Fourth Amendment dissents, examines Justice Sandra Day O’Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O’Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the “everyday lives of Americans.” Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck …

The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson

Scholarly Publications

Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.

This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …

Discrimination, Coercion, And The Bail Reform Act Of 1984: The Loss Of The Core Constitutional Protections Of The Excessive Bail Clause, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

The Right Ones For The Job: Divining The Correct Standard Of Review For Curtilage Determinations In The Aftermath Of Ornelas V. United States, Jake Linford

Scholarly Publications

No abstract provided.

Sex Offender Registration And Community Notification Policy: Past, Present, And Future, Wayne A. Logan

Scholarly Publications

Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law enacted in July 2006 that continues efforts by Congress to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community …

United States Implementation Of The International Criminal Court: Toward The Federalism Of Free Nations, Lauren Fielder Redman

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Constitutional Collectivism And Ex-Offender Residence Exclusion Laws, Wayne A. Logan

Scholarly Publications

The U.S. has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the “the peoples of the several states must sink or swim together.” The article discusses …

Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan

Scholarly Publications

Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist …

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …