Clancy on the Framers’ Intent and the Fourth Amendment
Thomas Clancy (University of Mississippi College of Law) has posted The Framers’ Intent: John Adams, His Era, and the Fourth Amendment (Indiana Law Journal, Vol. 86, 2010) on SSRN. Here is the abstract:
For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.
Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.
Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.
Loewy on Fourth Amendment History, Purpose, and Remedies
Arnold H. Loewy (Texas Tech University School of Law) has posted The Fourth Amendment: History, Purpose, and Remedies on SSRN. Here is the abstract:
In this article, Professor Loewy introduces the Fourth Amendment topics debated in the 2010 Texas Tech Criminal Law Symposium. Part I of this article begins with a critical overview of the Supreme Court’s use of history in resolving Fourth Amendment questions. Part II analyzes the values that the Fourth Amendment protects, emphasizing the concept of “reasonableness.” Part III evaluates the use of the exclusionary rule to enforce Fourth Amendment values. Professor Loewy concludes by recognizing his article’s overall unfavorable appraisal of the Supreme Court and inviting the symposium’s other speakers to share their opinions.
September 24, 2010 | Permalink
PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.
It was an easy decision, said Mr. Williams, who took office in January promising changes that would reduce prosecutions but increase the conviction rate. Now he also spends hours each week visiting schools, exhorting students to graduate.
Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.
“This is like a breath of fresh air,” said Ellen Greenlee, chief of the city’s public defenders, who described the previous district attorney’s approach to charging suspects as “throw everything against the wall and see what sticks.”
Mr. Williams, the first black district attorney in the history of Pennsylvania, is a 10-year veteran of the office he is now shaking up. He looks younger than his 43 years and is happy for junior staff members to call him Seth.
In private and public appearances, Mr. Williams repeats practiced lines from a justice-reform movement that has taken hold in places like New York, San Diego and San Francisco and promotes, for lesser offenders, community courts and drug treatment rather than trial and prison.
“Crime prevention is more important than crime prosecution,” he said repeatedly last week as he rode from one event to another. “We need to be smarter on crime instead of just talking tough.”
“I’ve put my money where my mouth is,” he added in an interview, by redirecting his overstretched resources toward a more careful selection of cases and starting a computerized study of prosecutions to see why they so often fail.
But the real test of public support for Mr. Williams’s new directions, Ms. Greenlee and other legal experts said, may come if there is a surge in high-profile killings or the killing of a police officer by a repeat offender. Violent crime has fallen here in recent years, but of the 10 largest cities in 2009, Philadelphia still had the highest murder rate.
“We need to focus on the people who are shooting people,” Mr. Williams said of the newly lenient penalties for marijuana. Senior court officials said the shift would avoid 4,000 costly trials a year.
The only public condemnation came from Mr. Williams’s predecessor, Lynne M. Abraham, who during 18 years as district attorney sounded an increasingly hard line on crime. Ms. Abraham criticized the new marijuana policy, saying that “the drug cartels who import pot from Mexico are thrilled.”
While the drug shift caught the public eye, legal experts said the changes Mr. Williams was making, especially in the unit that decides what charges to file against those who are arrested, are far more important.
Previously, the charging unit included five lawyers, usually junior lawyers who were encouraged to file the widest and harshest charges they could, Mr. Williams said. Now the unit has 18 more experienced lawyers, who spend time considering what charges can realistically succeed. The office is also offering plea bargains earlier in the process, again to clear the courts for more serious cases.
“The new D.A. is one part of a sea change that is occurring in criminal justice in Philadelphia,” said Seamus P. McCaffery, a State Supreme Court justice.
The drive to streamline the justice system became easier, Mr. Williams and Justice McCaffery said, after an investigative series by The Philadelphia Inquirer last December found that the city had failed to obtain convictions in two-thirds of cases involving violent crimes, and that thousands of cases were dismissed because prosecutors were not prepared or witnesses did not appear.
Ms. Abraham, the former district attorney, who is now in private practice, called the articles misleading and said it was wrong to “do justice by the numbers.”
On one recent morning, Mr. Williams spoke to loud applause at the high school graduation at Freire Charter School.
“Why am I spending time here?” he asked. “Of the 75,000 people arrested each year for crimes in Philadelphia, what is the one thing they have in common? They didn’t graduate from high school.”
He described his own origins, saying they could easily have left him a street thug. When he was born in 1967, he went from the hospital to an orphanage; he does not know anything about his biological mother and said he was not interested in learning.
He spent time in two foster homes before being adopted, at 18 months old, by a middle-class black couple whom he credits with instilling a sense of civic duty. His father was a schoolteacher who also worked evenings at a recreation center, and his mother was a secretary.
As he congratulated the graduating seniors, he told them about a personal failure: He got into West Point, but had to leave in his first year when he failed math and chemistry.
He switched to Pennsylvania State University, where he was elected head of the Black Caucus and then the student government. He attended Georgetown Law School and started as an assistant district attorney under Ms. Abraham. Chafing at what he saw as a dysfunctional system, he resigned to run against her, unsuccessfully, in 2005.
The Philadelphia district attorney’s office was a stepping stone for the likes of Senator Arlen Specter and Gov. Edward G. Rendell, but Mr. Williams declined to speculate about his future.
Eugene J. Richardson Jr., one of the legendary Tuskegee airmen of World War II and a retired school principal, said he hoped the changes sought by Mr. Williams would pan out, adding, “So often the new broom comes in and then gets stuck in a corner.”
Green on Possession of Stolen Property
Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
June 17, 2010 | Permalink
“Governor Rebuffs Clemency Board in Murder Case”
Adam Liptak’s column in the New York Times is here. In part:
Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed. But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.
Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract:
The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any “routine” search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something “special” about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States’ physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government’s interest in performing suspicionless data searches at the border does not outweigh an individual’s interest in privacy. On balance, an individual’s privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment.
April 20, 2010 | Permalink