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Abstract:
Since the terrorist attacks of September 11, 2001, federal agents and prosecutors have sought and obtained the detention of dozens of individuals as so-called material witnesses. Though charged with no crime, these people have been subjected to secret weeks- or months-long incarcerations. Nearly all have been released after the government was satisfied they had no terrorist ties. Despite the outrage that the government's tactic has engendered, the constitutionality of detaining material witnesses has not been seriously questioned by litigants, courts, or legal commentators. Laboring under the misapprehension that the incarceration of witnesses has long been held constitutional, commentators have been constrained merely to echo the mainstream media's complaint that DOJ is abusing the material witness statute. Court challenges to such detentions have likewise been rebuffed on the ground that such detentions have long been held constitutional. The Article examines the federal government's unprecedented and calculated reliance on the material witness statute in its post-September 11th terrorism investigation. Examining the cases cited in support of the idea that prolonged incarceration of witnesses is constitutional, the Article shows how historical practice, Supreme Court precedent, and the Constitution itself have been misread to justify a prohibited tactic. Rather than supporting the incarceration of witnesses, authorities from the earliest days of the Republic to the present make clear that the practice has never been approved and is at best of dubious constitutionality.

Material Witness, Arrest, Detention, Fourth Amendment

Abstract:
The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York subway riders. Courts assess the legality of such suspicionless searches with an inherently flawed balancing test developed for examining searches and seizures made with a lesser degree of suspicion than probable cause. Although scholars and justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a principled, objective inquiry for determining when searches and seizures without probable cause can be made. To eliminate the need for balancing, the Article advances two propositions to remedy fundamental problems pervading Fourth Amendment jurisprudence. The first proposition is that the Fourth Amendment's protection should not vary according to expectations of privacy determined by judges. The long-held and generally unquestioned premise that the Fourth Amendment protects an ill-defined right to privacy should yield to the recognition that the amendment protects abstract privacy by protecting concrete property. The second is that the general requirement of probable cause for searches and seizures must always be enforced according to the term's specific meaning. Although probable cause relates only and specifically to criminal conduct, courts often use the term loosely in non-criminal contexts, inadvertently creating conditions that permit searches and seizures of the very sort the Framers meant to stop. The Article concludes by applying these propositions to advance a principled framework for evaluating the constitutionality of suspicionless searches.

Fourth Amendment, search, seizure

Abstract:
Despite the series of important Supreme Court sentencing decisions of the past ten years, federal sentencing remains fundamentally inquisitorial. Although the guidelines are no longer legally binding, they continue to taint the entire federal criminal justice system by needlessly discouraging defendants from exercising their trial right and pressuring them to confess. Their continued vitality is largely due to Justice Breyer’s persistent view, first as one of the architects of the original guidelines and later as a Supreme Court justice, that sentencing is an administrative problem requiring an administrative solution. The heart of this solution is that the facts of each case and the appropriate punishment are to be determined not through the parties’ competing presentations, but through a probation officer’s purportedly 'neutral' investigation. This method of resolving factual issues, together with the guidelines’ harsh penalties for invoking the right to trial and lavish rewards for incriminating others, result in a system that is not only unfair but also intrinsically incompatible with our adversarial system of justice.

Existing scholarship on the Federal Sentencing Guidelines has not examined how the guidelines purposefully discourage exercise of the right to trial and pressure defendants to admit to every allegation against them (and others). The central role that the United States Probation Office plays has also not been thoroughly examined. Far from undertaking merely ministerial and innocuous tasks, as most of the existing scholarship assumes, probation officers are tasked by the guidelines with the most critical role at sentencing. Often, they exert far greater influence on case outcomes than defense lawyers and prosecutors. The article concludes that the present sentencing process is unconstitutional but can be easily reformed by restoring control over each case to the parties.

Sentencing, Federal Sentencing Guidelines

Abstract:
Since 1967, the Fourth Amendment's protection from unreasonable searches has depended upon whether judges found the "expectation of privacy" invaded during a given search to be one society would deem protected. Asking judges to answer this subjective and speculative question has rendered the assessment of searches notoriously confused and unpredictable. It has also placed many searches that large segments of society would doubtlessly find intrusive beyond the Amendment's scope. For an even longer period, the judiciary has perpetuated the notion that search warrants provide substantial protection to the targets of searches. Even if that were ever true, since the creation of the "good faith" exception to the remedy of exclusion, warrants have primarily benefitted the police. Warrants now deprive search targets of the opportunity to challenge the prosecution's claim of probable cause at an after-the-fact, adversarial hearing.

Instead, probable cause is determined conclusively in an ex ante, ex parte proceeding by a magistrate lacking the incentive and the resources to scrutinize the government's assertions. These two pillars of current Fourth Amendment jurisprudence - that the Amendment protects privacy directly and that the warrant procedure provides great protection - in fact lead judges to balance away the right supposedly guaranteed.

This article proposes restoring to the Fourth Amendment a principled means for effectuating its primary purpose of barring general searches while also giving the Amendment the broad reach that modern government demands. Accomplishing this entails refocusing the amendment on its explicit protection of property. Rather than protecting a legal or technical conception of property, however, the text should be read (as certain analogous constitutional provisions are) with a colloquial, pragmatic gloss that reflects what people consider and treat as their own. This would eliminate the need and opportunity for judges to discern and weigh "privacy expectations" against asserted government needs. It would thus supplant the present arbitrary and unpredictable analysis with a more objective and consistent approach. To accomplish this, the article proposes that the warrant procedure must be deemphasized in favor of adversarial probable cause determinations. As long as the "good faith" exception insulates ex parte probable cause determinations from review, the warrant procedure will continue to force judges to decide Fourth Amendment questions on the basis of government allegations and judges' own speculation. To ensure that evolving notions of property are reflected in search decisions, those aggrieved by searches must be afforded the opportunity to challenge the government's actions.

Fourth Amendment, search, constitutional law, criminal procedure

Abstract:
This article posits that the issue of whether a defendant may use money in his possession to retain an attorney must be examined primarily as a Fourth Amendment question rather than exclusively as a Sixth Amendment question. Using established Fourth Amendment jurisprudence has several advantages over viewing a pretrial seizure of assets as an incursion on only the right to counsel. First, it leaves no doubt that the government has the burden of adducing specific facts to demonstrate that particular assets are traceable to particular crimes. This is consonant not only with the presumption of innocence, but also with recognition that affording talented and aggressive representation to those accused of even heinous crimes is a defining characteristic of the American adversarial system of criminal justice. Second, a Fourth Amendment approach still affords consideration of a challenged seizure's Sixth Amendment implications. However, because every seizure triggers Fourth Amendment scrutiny, defendants would no longer be required to demonstrate an impact on the right to counsel just to prove their entitlement to a hearing. Instead, a hearing would be presumptively required, just as it is when the government seizes expressive works that may be protected by the First Amendment. A seizure of assets that an accused intends to use for his defense should be met with the same heightened judicial concern as a seizure of books or films. The Supreme Court, however, has been more willing to accept, in the name of the Constitution, the risk that pornographers will propagate obscenity than the risk that an accused would pay his attorney with tainted funds. Viewing pretrial asset seizures as raising Fourth Amendment issues ensures that the government will have to make some evidentiary showing to restrain money that a defendant might use for attorney's fees. Lastly, a Fourth Amendment approach forces recognition of the fact that attorneys who are paid for legal services rendered before the government has made the required probable cause showing ought to be entitled to the money they earned. While the government cannot remove an allegedly obscene book from circulation before proving that it is obscene, under current law it can prevent an accused from using contested assets to fund his defense with little more than an allegation. A Fourth Amendment approach would expose this anomaly and dispel the unmerited cloud of ignobility and the spectre of criminal exposure that current law casts upon those who undertake to provide constitutionally guaranteed representation.

forfeiture, seizure, fourth amendment, sixth amendment, right to counsel