Date of Publication: Fall 2018
Articles:
The Pen-Trap Statute and the Internet
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Abstract: Internet-connected computers might be illegal under the Pen Registers and Trap and Trace Devices chapter of Title 18, which is called the “Pen-Trap Statute” for short. The Pen-Trap Statute criminally prohibits any person from collecting non-content information from communications. One reading of the Statute suggests that cell phones, Wi-Fi, the Internet, and other modern technologies all fall under the Pen-Trap Statute’s broad definitions of “pen register” or “trap and trace device,” and, therefore, their use is a federal misdemeanor. Recognizing this problem, courts have struggled to find narrow readings of the Statute that would exclude ordinary Internet-connected devices from the Statute’s scope. Yet, these efforts either contradict the Statute’s text, or cannot be reconciled with court decisions interpreting how the statute regulates government surveillance. This Article argues that the Pen-Trap Statute prohibits only modifications to the pre-established line of communication that allow for the observation of dialing, routing, addressing, and signaling information that previously was impossible. This argument both saves modern communication devices from the Statute’s criminal scope, and explains the extent of the Statute’s surveillance and privacy protections.
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Abstract: This Article explores the U.S. Border Patrol’s administration of its interior checkpoint program at the southwest border. It examines the disparities between vehicle stops as originally approved in United States v. Martinez-Fuerte and the program as implemented today. Accusations persist that the Border Patrol runs these checkpoints as indiscriminate dragnets to advance general crime control interests. Moreover, prosecutorial strategies in cases such as United States v. Soto-Zuniga, a checkpoint conviction that was remanded by the Ninth Circuit and then quickly dismissed by the U.S. Attorney’s Office, present other potential concerns: is the government using the San Clemente checkpoint as a cover for engaging in a secretive and arguably unlawful practice known as parallel construction?
Current calls for immigration overhaul and promises to “build a wall” focus on exterior geographic boundaries. This Article redirects that national conversation inward, toward possible corruption within our interior immigration checkpoints.
Alexander Sarch, Daniel Wodak; Resolving Judicial Dilemmas
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Abstract: The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge deems to be “immensely cruel, if not barbaric.” Beyond the direct victims of overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.”
When faced with such a judicial dilemma–a powerful tension between the judge’s legal and moral reasons–the primary question is what a judge can do to resolve it. We argue that the two standard responses–sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)–are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible–even if the acts in question would not strictly count as optimal by the lights of the law or morality.
This commonsensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts, they are sufficiently defensible on both legal and moral grounds to be justifiable responses to judicial dilemmas. This article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical menu of options which judges can use to guide their responses to the judicial dilemmas they are increasingly likely to encounter within our criminal justice system.
Veteran Non Grata: Veteran Sex Offenders with Service-Related Mental Health Conditions and the Need to Mitigate Risk
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Abstract: Although hundreds of specialized criminal court programs now exist for military veterans to help deliver veteran-specific healthcare and social programs, only one Veterans Treatment Court has admitted sex offenders in a pretrial diversion program. At first glance, this nearly universal ban may seem reasonable considering the nature of sex offenses. However, the absence of veteran-specific treatment raises concerns in cases where offending is related to military service and Veterans Treatment Court approaches might offer greater chances of reducing recidivism. Our analysis begins by exploring longitudinal studies by the Bureau of Justice Statistics (BJS) on the phenomenon of incarcerated veterans. Consistently, these studies have reported twice (sometimes greater) the number of veteran violent sex offenders than civilians without military experience. After establishing consistent trends, we consider unique factors associated with military service that may explain this relationship. While most scholarship has focused on military culture and hypermasculinity factors that contribute to sexual assault in the military, we consider other factors related to Interpersonal Violence and Compulsive Sexual Behavior which establish how some offending–including sexual offending–has a genesis in Posttraumatic Stress Disorder from combat operations. Through these lenses, we identify a population of veteran offenders whose recidivism rates may not be addressed with the standard approach to sex offender treatment and who will need supplemental treatment for combat trauma symptoms to decrease the risk of recidivism. Ultimately, we do not recommend using pretrial diversion courts to address this risk. Rather, based on recent developments in reentry courts and sex offender courts across the country, we recommend Veterans Treatment Reentry Courts as a new option for veteran sex offenders whose life challenges necessitate better options for treatment and accountability.