Criminal Justice

  • January 29, 2018
    Guest Post

    by Jim Dempsey, Executive Director, Berkeley Center for Law and Technology

    The recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act was never in doubt. However, civil liberties advocates were disappointed when Congress failed to adopt an amendment requiring the government to obtain warrants before seeking information about US citizens in the repository of data collected under statue. More broadly, the debate failed to grapple with the risks of electronic surveillance in the era of globalization, expanding storage capacities, and big data analytics. Nevertheless, looking forward, the reauthorization set up the potential for fresh judicial consideration of a key constitutional question and yielded some opportunities for enhanced oversight of the 702 program.

    It was widely accepted that activities conducted under Section 702 were effective in producing useful intelligence on foreign terrorism and other national security concerns. Chances for reauthorization were further boosted by the fact that the broad outlines of 702 implementation were, once you got past the incredible complexity of the statute, well within a reasonable interpretation of Congress’ words. The trust generated by express Congressional authorization was augmented, after the Snowden leaks, by substantial and ongoing public disclosures by the Executive Branch about the law’s implementation – more transparency than any government in the world has ever provided about a similar national security program.

  • January 23, 2018
    Guest Post

    by Camille Fischer, Frank Stanton Fellow at the Electronic Frontier Foundation

    Over 300 U.S. and European lawmakers, civil liberties organizations, media organizations, computer science professors, U.S. and international legal academics, and companies urged the Supreme Court last week to protect privacy rights in the countless emails, chats, and other online communications that cross international boundaries.

    In all, 23 amicus briefs were submitted in support of Microsoft’s challenge to a U.S. warrant requesting the company to turn over emails stored in Dublin, Ireland. The Electronic Frontier Foundation (EFF) signed onto a brief with the American Civil Liberties Union, Brennan Center, Restore the Fourth, and R Street Institute.

  • January 23, 2018
    Guest Post

    by the Honorable Lynn Adelman, district judge in the United States District Court, Eastern District of Wisconsin.

    *This piece was originally posted in the fall issue of Litigation

    The United States today has a serious over-punishment problem. Beginning in the 1960s and 70s, the country embarked on a shift in penal policies, tripling the percentage of convicted felons sentenced to prison and doubling the length of their sentences.  As a result, America has become an outlier, not just among democracies but among all nations—including such highly punitive states as Russia and South Africa. The United States’ current incarceration rate is five times higher than the rate throughout most of the twentieth century. The very phrase—“mass incarceration”—is meant to provoke shame that the world’s wealthiest democracy imprisons so many people, though crime rates have fallen.

  • January 12, 2018
    Guest Post

    by Lawrence J. Fox, George W. and Sadella D. Crawford Visiting Lecturer in Law, Yale Law School

    “I’ve just told you he’s guilty.”

    Still ringing through the courtroom as the last day of Robert McCoy’s trial for murder came to a close, were the stinging words, “I’ve just told you he’s guilty.” If those words had been uttered by the prosecutor, the world would have taken little note. But they were the words of Mr. McCoy’s lawyer made over his client’s express objection and protestation of innocence. They represented the ultimate act of client betrayal made by the constitutionally guaranteed defender of Mr. McCoy’s rights, his one true champion, the only participant in the criminal justice system who was constitutionally required to fulfill Mr. McCoy’s wishes so long as the client was competent and they involved no illegal conduct. On January 17, these words will be at the center of discussion at the U.S. Supreme Court, when it hears this extraordinary case, McCoy v. Louisiana.

  • January 11, 2018
    Guest Post

    by Alex Kreit, Professor of Law, Thomas Jefferson School of Law

    It’s been one week since Attorney General Sessions rescinded an Obama-era memo that had effectively ended federal prosecutions of state-legal marijuana businesses. Under the new policy, it is up to individual U.S. Attorneys to decide whether to go after people who comply with state marijuana laws. So far, the new Department of Justice policy has not resulted in any arrests or prosecutions.

    Why did Sessions make this move and why did he wait so long to do it? After one week, marijuana policy watchers are still left scratching their heads.