Law Enforcement and Corrections Commons^™

Incarceration Incentives In The Decarceration Era, Avlana K. Eisenberg

Vanderbilt Law Review

After forty years of skyrocketing incarceration rates, there are signs that a new "decarceration era" may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform. This Article scrutinizes the incentives of these industry stakeholders …

Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum

Vanderbilt Law School Faculty Publications

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …

Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines, Andrew Tunnard

Vanderbilt Law Review

This Note looks beyond the circuit split to the larger juvenile justice issues implicated by these sentencing practices. Part II provides a brief overview of the juvenile justice system, juvenile transfer statutes, and the Guidelines. Part III explores the interpretive issues that have led to this circuit split. Part IV explains why resolving this circuit split requires more than choosing one side, and expands the discussion by analyzing the impact of recent judicial and scientific trends on the treatment of juvenile offenders in the adult system. Part V proposes that convictions occurring before the age of eighteen should not be …

Against Proportional Punishment, Adam J. Kolber

Vanderbilt Law Review

Many criminal defendants are held in detention while they await trial. Though conditions in pretrial detention are much like those in prison, detention is technically not punishment. Since detainees are merely accused of crimes, they are presumed innocent.' Their detention is not intended to punish them, and so, the Supreme Court has said, it is not punishment at all. Rather, detention is a means of promoting public safety, reducing witness intimidation, and preventing people accused of crimes from fleeing before trial. Nevertheless, defendants who are convicted generally receive credit at sentencing for time served in pretrial detention. An offender who …

Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin

Vanderbilt Law School Faculty Publications

Professor Capers's article helps stimulate thinking about the way in which community views and individual rights interact. In my view, where police propose to conduct surveillance of groups, as occurs with camera surveillance (including the newly developing drone camera systems)', the affected group should be heavily involved in the authorization process. If the surveillance is authorized, care must be taken to ensure that all members of the group are equally affected by it unless and until individualized suspicion, proportionate to the intrusion, develops. That formula ensures that the interests of both the collective and the individual are protected.

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven A. Koh

Vanderbilt Journal of Transnational Law

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures--the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence. This Article identifies this gap in the literature--the prison location omission--and fills it from three different vantage points: (1) U.S. procedural provisions governing prison designation; (2) international procedural provisions governing prison designation; and (3) the relationship between imprisonment and broader theories of criminal punishment. Through comparison of …

A More Intelligent And Just "Atkins:" Adjusting For The Flynn Effect In Capital Determinations Of Mental Retardation Or Intellectual Disability, Geraldine W. Young

Vanderbilt Law Review

In Atkins v. Virginia, the U.S. Supreme Court declared a ban on all executions of mentally retarded persons. This declaration, however, rings hollow for those mentally retarded defendants and inmates who continue to face death sentences as a result of the inconsistent enforcement of Atkins across jurisdictions. One issue in particular-whether to adjust intelligence-test scores for the phenomenon known as the Flynn Effect-has caused inconsistency among courts and has sparked a contentious battle among experts. It blurs the already-precarious line between life and death. And yet, the Flynn Effect captivates capital defendants and inmates with its promise of adjusting intelligence-test …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Comparative Empiricism And Police Investigative Practices, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …

The Double-Helix Double-Edged Sword: Comparing Dna Retention Policies Of The United States And The United Kingdom, Erica S. Deray

Vanderbilt Journal of Transnational Law

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for …

Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequences Of Conviction, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

The American jury, once heralded as "the great corrective of law in its actual administration," has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent …

Government Dragnets, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Vanderbilt Law Review

The State of Texas is known as the capital of capital punishment.' But is that reputation deserved? In a way, yes. Texas sends more people to death row than any other state, and it executes them far faster. However, in another way, it is incorrect to suggest that "the State" of Texas is a prolific user of capital punishment. Death penalty cases are prosecuted by counties, not the state, and a majority of Texas's counties have never imposed the death penalty. In fact, only a handful of Texas's 254 counties regularly seek the death penalty. Many other states have a …

Reawakening "Privileges Or Immunities": An Originalist Blueprint For Invalidating State Felon Disenfranchisement Laws, John B. Schrader

Vanderbilt Law Review

Terrence Johnson, Jim Harris, and Alexander Friedman, all Tennessee residents, have a few things in common. All are convicted felons: Johnson for federal wire fraud, Harris for drug offenses and burglary, and Friedman for assault and aggravated armed robbery.' All had completed their respective terms of imprisonment, parole, and probation for those offenses by February 2008. But all nevertheless were saddled with various unpaid legal obligations: Johnson with $40,000 in restitution in connection with his offense and $1,200 in overdue child support payments; Harris with $2,500 in overdue child support payments; and Friedman with $1,000 in restitution in connection with …

Rico Overreach: How The Federal Government's Escalating Offensive Against Gangs Has Run Afoul Of The Constitution, Matthew H. Blumenstein

Vanderbilt Law Review

The United States has a problem with gangs. According to the Department of Justice, there are more than twenty thousand gangs in the United States today, with over one million members. There are gangs in every state and in the District of Columbia. This is a dire problem in the eyes of federal government officials. According to Attorney General Michael Mukasey, "Gangs threaten our society .... They bring a culture of violence and drugs to our doorsteps, creating an atmosphere of fear, diminishing the quality of life, and endangering the safety, well-being, and future of our children." In response, the …

Honesty Is The Best Policy: A Case For The Limitation Of Deceptive Police Interrogation Practices In The United States, Irina Khasin

Vanderbilt Journal of Transnational Law

In the United States, police officers regularly employ deceptive interrogation tactics to extract confession evidence from suspects. Despite widespread recognition of the harm caused by police deception, courts in the United States have consistently condoned the practice, refusing to exclude confessions obtained through manipulative and deceitful means. The British Parliament has recognized that deceptive police practices yield false confessions and, thus, wrongful convictions. The Police and Criminal Evidence Act of 1984 addresses this concern by establishing clear rules for the police to follow and by empowering courts to enforce those rules. In evaluating the need for reform in American police …

The Death Penalty In Florida, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article summarizes the findings and recommendations of the ABA Death Penalty Moratorium Implementation Project's Florida Assessment Team, which I chaired. Relying on an analysis of caselaw, studies, news reports, and interviews, the article describes significant flaws in Florida's death penalty law and practice in nine areas: the police investigative process; the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; clemency; the system's reaction to the race of the victim; and the treatment of people with mental disability. …

Lying And Confessing, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay, for a symposium on Citizen Ignorance, Police Deception and the Constitution, relies on moral philosophy and new empirical research in arguing that police deceit during interrogation is permissible when: (1) it takes place in the window between arrest and formal charging; (2) it is necessary (i.e., non-deceptive techniques have failed); (3) it is not coercive (i.e., avoids undermining the rights to silence and counsel and would not be considered impermissibly coercive if true); and (4) it does not take advantage of vulnerable populations (i.e., suspects who are young, have mental retardation, or have been subjected to prolonged interrogation). …

Mental Disorder As An Exemption From The Death Penalty: The Aba-Irr Task Force Recommendations, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Task Force on Mental Disability and the Death Penalty (Task Force) established by the Individual Rights and Responsibilities Section of the American Bar Association (ABA-IRR) has proposed that the ABA adopt three recommendations concerning the role of mental disability in capital cases. The first two recommendations call for a prohibition on execution of offenders whose mental disorder rendered them less culpable at the time of the offense, and the third would prohibit execution of those whose mental disability currently renders them incompetent to pursue appeals or to be executed. This Article discusses the first two, culpability-related, recommendations. With respect …

Subpoenas And Privacy, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an …

Dangerous Criminals Or Dangerous Courts: Foreign Felonies As Predicate Offenses Under Section 922(G)(1) Of The Gun Control Act Of 1968, Aron J. Estaver

Vanderbilt Journal of Transnational Law

There is currently a split among U.S. Circuit Courts regarding 18 U.S.C. § 922(g)(1), a provision of the Gun Control Act of 1968 that makes it a crime for any individual "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess or receive a firearm in interstate or foreign commerce or affecting interstate commerce." The U.S. Supreme Court will examine the split later this year when it hears the case of United States v. Small. The Author argues that the Supreme Court should determine that Section 922(g)(1) of the …

A Wolf In Sheep's Clothing: Wolf Versus Ashcroft And The Constitutionality Of Using The Mpaa Ratings To Censor Films In Prison, Colin Miller

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article looks at the history of the federal courts' jurisprudence in deciding prisoner's rights cases, culminating in the current test adopted in on Turner v. Safley. Part II considers the purposes behind the Zimmer Amendment and looks at the district and appellate court rulings in the Pennsylvania prisoners' case, Wolf v. Ashcroft. Part III looks at the history of the MPAA ratings and cases dealing with their legal enforceability. Finally, Part IV applies Turner's test to the Zimmer Amendment and the Pennsylvania policy prohibiting R, X, and NC-17 movies from being shown in prison, ultimately concluding …

International Bounty Hunter Ride-Along, Ryan M. Porcello

Vanderbilt Journal of Transnational Law

This Note explores the international implications of a plan proposed by two bounty hunters in the Tacoma, Washington area to charge U.K. thrill seekers to accompany them on manhunts in the United States. Part H explains the differences in Colonial American society that resulted in the early development of a commercial bail bond system to replace the English personal surety system. Part III examines the contractual relationship between a bail bondsman and a defendant, as well as the agency relationship between a bail bondsman and a bounty hunter, to show why bounty hunters have such unbridled power to arrest fugitives. …

Theology In The Jury Room: Religious Discussion As "Extraneous Material" In The Course Of Capital Punishment Deliberations, Gregory M. Ashley

Vanderbilt Law Review

"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities …

Damages To Deter Police Shootings, W. Kip Viscusi, S. Jeffrey

Vanderbilt Law School Faculty Publications

Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and reflect the failure of existing administrative and legal restraints to deter these unwarranted shootings. This Article proposes a revamping of existing incentives to both provide more adequate compensation to the victims' families and to establish levels of deterrence that are sufficient to curtail unjust fatalities. There are legal criteria for what level of force is "reasonable," but determining reasonableness in practice may be difficult. Practical guidance such as the "21-foot rule" for the threat to warrant a shooting is often problematic. …

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

The Sheinbein Case And The Israeli-American Extradition Experience: A Need For Compromise, Abraham Abramovsky, Jonathan I. Edelstein

Vanderbilt Journal of Transnational Law

This Article will examine the political ramifications of the extradition process and the need for compromise to prevent domestic politics from undermining the ends of law enforcement. This Article will also suggest possible measures to ease the complications that extradition poses to international law enforcement cooperation. Part II of this Article will examine the facts of the most recent and dramatic example of the politics of extradition as played out in the Sheinbein case. Part III will analyze other issues which have placed obstacles in the path of practical law enforcement and international relations, and the way that the United …

Second Thoughts On Second Punishments: Redefining The Multiple Punishments Prohibition, Peter M. Bryce

Vanderbilt Law Review

The Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." To the layperson "twice put in jeopardy" means twice tried. The Supreme Court has firmly established, however, that the Double Jeopardy Clause targets two kinds of multiplicity: multiple prosecutions and multiple punishments. The right against multiple punishments is less commonly understood than the right against multiple prosecutions. What does it mean to be punished twice for the same offense? What is the evil that the right guards against? The Court appears to have defined the prohibition …

Deceit, Pretext, And Trickery: Investigative Lies By The Police, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article has been a preliminary effort at identifying those limitations in connection with one specific type of lie-investigative lies, or lies told to people in an effort to gather evidence against them. The extrapolation of Bok's analysis developed in this Article suggests that once an individual has been identified as a suspect through the public proxy of a judge, noncoercive deception in the investigative setting is often permissible. On the other hand, in the absence of such an identification, or when deception leads the dupe to believe he has no choice but to provide the soughtafter evidence, investigative lying …

Testilying: Police Perjury And What To Do About It, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police, like people generally, lie in all sorts of contexts for all sorts of reasons. This article has focused on police lying designed to convict individuals the police think are guilty. Strong measures are needed to reduce the powerful incentives to practice such testilying and the reluctance of prosecutors and judges to do anything about it. Among them might be the adoption of rewards for truth telling, the redefinition of probable cause, and the elimination of the exclusionary rule and its insidious effect on the resolve of legal actors to implement the commands of the Constitution. Ultimately, however, the various …