Paul Secunda has an interesting guest post on the ACS Blog regarding the role of the Ricci case in the confirmation hearings. Meanwhile, over at the Federalist Society website, our former colleague Scott Moss is part of a lively ongoing debate on the hearings.
Talk about thinking outside the box. Since at least the time of Cesare Beccaria, generations of criminal-justice reformers have dedicated themselves to rationalizing our systems of policing and punishment: weeding out archaic laws, professionalizing the police function, bringing ever more sophisticated science to bear in the detection of crime, humanizing the administration of punishment, and so forth. But now University of Chicago Law Professor Bernard Harcourt tells us we have been traveling down a dead-end road for the past two hundred years: what criminal justice needs is not rationality, but randomization. Or so Harcourt argues in a provocative new paper on SSRN, “Randomization in Criminal Justice: A Criminal Law Conversation.”
Should police focus their resources on the inner-city or the suburbs? Flip a coin, Harcourt suggests. What maximum prison term should the legislature prescribe for a given offense? Try drawing a number out of a hat. Did the defendant really intend to cause the victim’s death? Get out the tarot cards.
Harcourt’s paper appears in the new book Criminal Law Conversations, along with critical commentary written by law professors Alon Harel (Hebrew University), Ken Levy (L.S.U.), Alice Ristroph (Seton Hall), and some guy named Michael O’Hear. The SSRN version includes the four responses plus Harcourt’s reply. The abstract appears after the jump.
In 2006, Jarrett James robbed the same bank in Middleton, Wisconsin, on two different occasions, getting away with about $120,000. He was later apprehended, convicted in federal court, and sentenced to 42 years in prison. His appeal centered on the government’s warrantless seizure of a safe from his mother’s home. The safe contained a gun matching a description of the weapon used in one of the robberies. When the government sought to use the gun as evidence against him at trial, James argued unsuccessfully that the gun should be suppressed because it was obtained in violation of his Fourth Amendment protection against unreasonable searches and seizures.
In United States v. James (No. 08-3327), the Seventh Circuit (per Judge Flaum) also rejected the Fourth Amendment claim and affirmed James’ conviction. Specifically, the court held that the seizure complied with the Fourth Amendment because James’ mother consented to a police officer taking the safe. The holding is notable because James’ mother never expressly agreed to the seizure; the case thus illustrates circumstances in which Fourth Amendment consent may be inferred from silence. The case also raises interesting questions regarding the mother’s motivations and the underlying parent-child dynamics.