(X-posted from the C.D. Cal. Federal Public Defender Blog.)
Rational Sentencing in Child Pornography Cases Does Happen. Sentencing Resource Counsel has published its list of child pornography cases in which the defendant received a sentence of one day or of straight probation. Click the link.
Dropbox v. SpiderOak. Mark Bennett has some thoughts on those two data-sync services. In short, "[f]or online data backup in a criminal-defense practice, Dropbox is not an option.
"Prison and the Poverty Trap."[N]ow that Americaâ€™s incarceration rate has risen to be the worldâ€™s highest, many social scientists find the social benefits [of tougher penal policies] to be far outweighed by the costs to those communities. " Read the whole thing at the New York Times. (H/T CrimProf Blog.)
Top of the Ninth - 9th Cir. decisions released during the fortnight.
• U.S. v. May (guidelines "relevant conduct" included uncharged mail theft that caused changes in USPS delivery policy, so that cost of changes was appropriately added to loss) (but those costs could not be added to restitution order because mail theft underlying conviction occurred after change in procedure). Ninth Circuit Blog's analysis here.
• Bailey v. U.S. (detention of occupants of premises during warrant search is limited to those in immediate vicinity of premises).
• Florida v. Harris (Fourth Amendment dog sniffs are evaluated by "common sense" rather than by scientific evidence [NB: This case digest only partially unfair.]).
• Henderson v. U.S. (errors plain at time of appeal are "plain" within FRCP 52(b)).
• Johnson v. Williams (§2254) (state court denial in explained decision that doesn't expressly acknowledge federal-law basis for claim is on the merits within §2254(d)).
• Chaidez v. U.S. (Padilla is not retroactive). Berman suggests that opinion language might expand Padilla's reach from immigration consequences to "non-criminal consequence[s]."
• Evans v. Michigan (habeas) (retrial after judge grants midtrial directed verdict based on state's failure to prove fact that wasn't actually an element violates Double Jeopardy Clause).
• U.S. v. Wilson (3d Cir.) (general appellate waiver does not bar appeal of subsequent modification of supervised release terms). (H/T)
• U.S. v. Yengel (4th Cir.) (failure to evacuate house containing makeshift "grenade" showed officer did not believe exigency existed). (H/T)
• U.S. v. Holness (4th Cir.) (recording of defendant's statements by cellmate violated Fifth Amendment, though it was harmless). (H/T)
• U.S. v. Kurlemann (6th Cir.) (evidence was insufficient for false statements conviction, where statements in questions were only misleading). (H/T)
• U.S. v. Shaw (6th Cir.) (executing arrest warrant at wrong address because it was only one occupied was unreasonable). (H/T)
• U.S. v. Macias-Farias (6th Cir.) (district court's reliance on government's off-the-cuff summary of defendant's testimony does not support obstruction enhancement on perjury theory). (H/T)
• U.S. v. Uribe (7th Cir.) (color difference on car registration not sufficient basis for stop). (H/T)
• U.S. v. Battle (10th Cir.) (district court's supplemental findings in defendant's §3582 proceeding were unsupported by facts found at original sentencing). (H/T)
• U.S. v. Epps (D.C. Cir.) (Supreme Court decision in Freeman has no controlling opinion). (H/T)
• U.S. v. Gibson (11th Cir.) (defendant has standing to challenge GPS tracking of vehicle he legitimately borrowed and had controlled at time of search). (H/T)
• U.S. v. Izurieta (11th Cir.) (rule of lenity precludes conviction based on arguably noncriminal regulation, here, an FDA regulation government food imports). (H/T)
The Week in Sausage Making. Measures introduced include H.R. 710 (would provide affirmative defense for medical use of marijuana).
For the Bookworms - New books and scholarly articles of note.
• "Promoting Accuracy in the Use of Confession Evidence: An Argument for Pre-Trial Reliability Assessments to Prevent Wrongful Convictions," Richard A. Leo et al. (SSRN).
• "Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines," Scott Michelman & Jay Rorty, 45 Suffolk U. L. Rev. 1083 (2012) (SSRN).
• Note: "DNA Profiles, Computer Searches, and the Fourth Amendment," Catherine W. Kimel (article)
• "Federal Tax Crimes, 2013," John A. Townsend (SSRN).
• "Plea Bargaining, Sentence Modifications, and the Real World," Julian A. Cook, 48 Wake Forest L. Rev. 101 (2013) (SSRN).
• "Against Proportional Punishment," Adam J. Kolber (SSRN) (argues that retributivist "proportionality" has profoundly counterintuitive implications).
• "Reluctance to Resentence: Courts, Congress, and Collateral Review," Sarah French Russell, N.C. L. Rev. 79 (2012) (SSRN) (argues that courts have overstated value of finality in sentencing cases).
• "The Politics of Privacy in the Criminal Justice System: Information Disclosure, The Fourth Amendment, and Statutory Law Enforcement Exemptions," Erin Murphy, 111 Mich. L. Rev. 485 (pdf).
• "Domestic Drone Use and the Mosaic Theory," Sean Sullivan (SSRN).
• "Is Expert Evidence Really Different?," Frederick Schauer & Barbara A. Spellman (SSRN).
• "Lies and the Constitution," Helen L. Norton (SSRN).
• "Overcriminalizing Immigration," Jennifer M. Chacon (SSRN).
• "Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt," Ann Cammett, 117-2 Penn. St. L. Rev. 349 (pdf).
• "Prosecutorial Discretion under Resource Constraints: Budget Allocations and Local Death Charging Decisions," Greg Goelhauser (SSRN).
• "Molecular Neuroeconomics of Crime and Punishment: Implications for Neurolaw," Taiki Takahashi (SSRN).
• "'He Is the Darkey with the Glasses On': Race Trials Revisited," Anthony Victor Alfieri, N.C. L. Rev. (SSRN).
• "Strange Traffic: Sex, Slavery & the Freedom Principle," Anders Walker (SSRN).
• "Reclaiming the Equitable Heritage of Habeas," Erica J. Hashimoto (SSRN).
Suggestions or corrections? Email Michael Drake.