Date of Publication: Summer 2016
Mary Katherine Huffman, Moral Panic and the Politics of Fear: The Dubious Logic Underlying Sex Offender Registration Statutes and Proposals for Restoring Measures of Judicial Discretion to Sex Offender Management
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Abstract: Existing sex offender management legislation generally represents an emotional response to a few well-publicized incidents involving child-victims. Federal and state legislative initiatives mandating sex offender registration for all defendants convicted of a sexually-oriented offense lack an empirical foundation and should be modified to embrace the scholarly research produced in the past twenty-five years. The abundant research focused on sex offenders, while persuasive, fails to consider the role of the judiciary in sex offender management. Sex offenders can be more effectively supervised by restoring a measure of judicial discretion to offender management. Judicial involvement in sex offender management should include discretion to determine registration duties for low-risk first-time sex offenders, authority to consider individualized risk assessment in the imposition of registration duties and in managing offenders, expanded jurisdiction to authorize deregistration for low-level first-time sex offenders, and the implementation of specialized sex offender courts modeled after other successful problem-solving courts.
Michael L. Perlin & Alison J. Lynch, “In the Wasteland of Your Mind”: Criminology, Scientific Discoveries and the Criminal Process
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Abstract: This paper addresses a remarkably under-considered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors *305 that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.
In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences. In this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision inUnited States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.
Robert Harrington, Avoiding Scylla and Charybdis: Why the Third-Party Doctrine Is Ill Suited to CSLI, And What Sate Courts Can Do About It
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Abstract: The government has developed an efficient, effective, and low-cost method of discovering the whereabouts of the vast majority of Americans at every time of the day and night. With little or no judicial oversight, law enforcement officials access this location data millions of times every year, leaving citizens exposed to potential 24/7 surveillance. Every seven seconds our cell phones register with the closest cell tower, allowing service providers such as Verizon and AT&T, and in turn the police, to ascertain our location with remarkable precision. This invasion of privacy, according to many federal and state courts, can be done without a warrant. Adopting a mechanical application of the controversial third-party doctrine, courts throughout the country have held that cell phone users voluntarily convey their location data to their cell service provider, and thus forfeit any reasonable expectation of privacy in that data.
This Note argues that such an unbending, all or nothing approach to the third-party doctrine has no place in modern society and that, accordingly, warrants should be required before police officials can access data emanating from our cell phones. First, it is argued that such emanations are not truly voluntarily and thus should not trigger the third-party doctrine. Second, it is argued that, even if we were to deem such conveyances voluntary, it should not necessarily follow that this automatically renders the individual’s expectation of privacy unreasonable, and a more comprehensive and normative approach to the Fourth Amendment is endorsed. The Note then briefly surveys the recent efforts of state courts to afford their citizens additional protections via the Fourth Amendment analogs of their own constitutions. It concludes by advocating in favor of this trend and encouraging more states to be active in re-thinking the continued viability of the third-party doctrine in the digital age.