Florida State University – College of Law

March 19, 2013

Forthcoming, to be published by The Yale Law Journal Company, Incorporated in The Yale Law Journal

Abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. 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. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper 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, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring – the intrusion on individual privacy and the threat of surveillance extending to new segments of society – have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Nancy J. King

Vanderbilt University – Law School

May 2, 2013

Duquesne University Law Review, Vol. 51, 2013

Vanderbilt Public Law Research Paper No. 13-25

Abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

To read the entire article see:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259694

The Supreme Court’s decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court’s increasing willingness to grant some relevance to the competence of postconviction counsel. While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide. In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum. At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel. My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.

The article can be found here.

The judge says the woman’s niqab “masks her demeanor and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact.

The 37-year-old woman, known only as N.S., alleges two men sexually assaulted her over five years, starting when she was six years old.

The question of whether she should be allowed to testify in the case while wearing her niqab went all the way up to the Supreme Court of Canada, which issued a split decision but set out a test for judges to decide in individual cases.

At the oral argument before the Supreme Court there was no mistaking the impatience  of  Justice Morris Fish’s voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

“Some blind lawyers that I know,” responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab.
The Supreme Court Justices clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

“Well, how about seeing lawyers?” Judge Fish insisted. “Your response quite explicitly and dramatically answers the question.”

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.  The opinion of the Canadian Supreme Court can be found here.

Lyle Denniston has an interesting recap of the United States Supreme Court oral argument in Salinias v. Texas entitled “Argument recap: Reading silence’s meaning.”

“If the sentiment that seems to run high in a Supreme Court hearing dictated how a case would come out, the Justices might well be on their way to declaring that the Constitution forbids prosecutors from telling juries that a suspect’s silence when talking to police in any criminal investigation means he is guilty.  The argument Wednesday in Salinas v. Texas (12-246) showed the appeal of treating silence in response to police questions as too ambiguous to be allowed as proof of guilt.”

The only thing at your disposal … is the two or three level reduction for acceptance of responsibility.  That means you’ve got to go to the cross.  You’ve got to tell the probation officer everything you did … regardless of how bad it makes you appear. … Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.  ….In order to get the reduction for acceptance, you’ve got to come to the cross.”

“Former Chief Justice Warren Burger (who was so devoted to the U.S. Constitution that he retired from the high court in order to lead the national celebration of the Constitution’s bicentennial in 1987) gave an interview on the PBS “Newshour” in 1991 in which he said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public.”

Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.

The full story can be found at:

http://www.minnpost.com/eric-black-ink/2013/04/trouble-ahead-justices-rulings-gun-rights-raise-thorny-questions?utm_source=MinnPost+e-mail+newsletters&utm_campaign=638671ec0a-4_18_2013_Daily_Newsletter4_18_2013&utm_medium=email

Second of three articles.

The original U.S. Constitution, as drafted in 1787, made no mention of gun rights and guaranteed relatively few other rights.

The Constitution actually granted the federal government considerable power over the state militias, such as power to arm and discipline them and to call them into federal service to repel invasions or suppress insurrections. (It’s all in Article 1; Section 8.)

Anti-federalists — those who opposed the ratification of the Constitution – argued that the powerful new national government the framers sought to create jeopardized many important rights of the states and the people, including the independence of the state militias. If Congress had the power to arm the militias, did it also have the power to disarm them? Could the national government call up a state’s militia and send it out of state to suppress an insurrection elsewhere? (Apparently, it could.) Would a state whose militia had been thus nationalized and deployed elsewhere be defenseless? This was a special concern in southern states where the militia had duties as slave patrols, to capture runaways and to protect the white population against the possibility of a slave insurrection.

For the rest of the article see:

http://www.minnpost.com/eric-black-ink/2013/04/gun-rights-1780s-and-today?utm_source=MinnPost+e-mail+newsletters&utm_campaign=91c3df70fc-4_17_2013_Daily_Newsletter4_17_2013&utm_medium=email