From the abstract:
Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of Big Data, data mining, ubiquitous consumer tracking, and digital forensics to prevent wrongful convictions and to provide hard proof of actual innocence for those already convicted.
Download the full article here.
Washington and Lee Law Professor Erik Luna recently presented his forthcoming work, Prosecutor King, at the Symposium on Prosecutorial Discretion. The Symposium was held on May 16, 2014 at Stanford Law School and hosted by the Stanford Journal of Criminal Law & Policy. Professor Luna’s work will be published in the journal’s inaugural edition.
The discussion and fellowship were very stimulating, bringing together scholars from around the world to discuss the German Free Law Movement and Hermann Kantorowicz’s work The Battle for Legal Science. The presentations were at an extremely high level and very enlightening. W&L’s own Erik Luna participated in a panel discussing the legacy of free law, which Visiting W&L law professor Trey Childress moderated. Russ Miller’s presentation in another panel on free law in German Jurisprudence was truly fascinating, as we each learned how the German Constitutional Court might arguably be implementing some of the free law approach in its own work.
Professor Erik Luna, Professor of Law and Law Alumni Faculty Fellow, recently published his book, The Prosecutor in Transnational Perspective (Oxford University Press 2011), with Marianne Wade of the Birmingham Law School at the University of Birmingham.
The book, a compilation of works and essays, discusses the powerful role the American prosecutor plays in the judicial system. They wield the authority to accept or decline a case, choose which crimes to allege, and decide the number of counts to charge. These choices, among others, are often made with little supervision or institutional oversight. This prosecutorial discretion has prompted scholars to look to the role of prosecutors in Europe for insight on how to reform the American system of justice.
In The Prosecutor in Transnational Perspective, Professor Luna and Marianne Wade, through the works of their contributors coupled with their own analysis, demonstrate that valuable lessons can be learned from a transnational examination of prosecutorial authority. They examine both parallels and distinctions in the processes available to and decisions made by prosecutors in the United States and Europe. Ultimately, they demonstrate how the enhanced role of the prosecutor represents a crossroads for criminal justice with weighty legal and socio-economic consequences.
The book may be found on Amazon here.
Professor John D. King, Associate Clinical Professor, recently had his paper, “Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors” published in The Prosecutor in Transnational Perspective, edited by Erik Luna and Marianne Wade (Oxford University Press 2011).
Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the scrutiny of a police officer for a couple of hours, a prosecutor for a couple of minutes, and a judge for a couple of moments. With a few notable exceptions, the process by which we prosecute and adjudicate low-level cases in the American criminal justice system has gone largely unexplored and unexamined, despite its being the primary contact that most Americans have with the criminal justice system.
In his essay, Prof. King addresses some of the issues surrounding the prosecution and adjudication of low-level offenses in the United States, looking specifically at the changed context within which such prosecutions take place today. He explores the tension between the formal procedural safeguards and adversarial zeal that is supposed to characterize the American criminal justice system, and the practice of the processing of misdemeanor cases as it actually occurs in courtrooms across the country. Prof. King also examines the recent explosion of the scope and number of collateral consequences that attend a criminal conviction, including many misdemeanor convictions. He addresses the issue of wrongful convictions, an issue that has received great focus recently in the context of serious cases but much less so with regard to the low-level prosecutions that dominate the criminal justice system. Finally, Professor King argues that the dramatic increase in misdemeanor prosecutions as well as the sharp rise in the seriousness and scope of the resulting collateral consequences requires a change in how such cases are adjudicated.
The article can be found on SSRN here.
As a new 1L entering Stanford Law School, Professor Erik Luna’s immediate intention was to become a corporate attorney, “…of all things,” he says now with a chuckle. Instead, under the guidance of masterful teachers in criminal law and procedure, he began a career of scholarship and practice in criminal justice that has taken him to positions in San Diego, Chicago, and Salt Lake City before his arrival at Washington and Lee in 2009.
Beyond the personal influence of mentors, Professor Luna discovered that criminal law is an intellectual exercise involving the philosophical and practical questions of where societies draw their ultimate boundaries for proscribed conduct, and addressing those who cross the line.
In addition, Luna finds the criminal justice system to be a fascinating tableau where lawyers acting as defense attorneys, prosecutors, and judges pursue diverging and often conflicting values and goals. As a new graduate he experienced this first hand while working in the San Diego prosecutor’s office. However, he was drawn back into academia where he found a congenial atmosphere of rigorous analytical thought allowing for a deep and satisfying immersion in criminal law.
Professor Luna’s intense intellectual curiosity fuels his research interests in many areas of criminal law. These include Federal sentencing, the law of terrorism, the drug war, search and seizure law, prosecutorial discretion, and comparative and international criminal law. His scholarship is a forceful and prolific voice on these issues. His forthcoming works are impressive, including:
- Robinson v. California: From Revolutionary Constitutional Doctrine to Modest Ban on Status Crimes, in Criminal Law Stories, (Robert Weisberg & Donna Coker eds., Foundation Press, in press 2011)
- The Bin Laden Exception, 106 Northwestern University Law Review (2011) (solicited commentary on airport screening methods)
- Spoiled Rotten Social Background, 2 Alabama Civil Rights and Civil Liberties Law Review (forthcoming 2011) (symposium on “rotten social background” in criminal law)
- The Law of Terrorism (casebook with W. McCormack, 3d ed. LexisNexis, forthcoming 2012)
- Understanding the Law of Terrorism (supplement/treatise with W. McCormack, 3d ed. LexisNexis, forthcoming 2012)
- Psychopathy and Sentencing, in Handbook on Psychopathy and Law (K. Kiehl & W. Sinnott-Armstrong eds., Oxford University Press, forthcoming)
- Sense and Sensibility in Mandatory Minimum Sentencing, 23 Federal Sentencing Reporter 219 (2011) (solicited for special issue, with P. Cassell)
- The Prosecutor in Transnational Perspective (edited volume with M. Wade, Oxford University Press, in press 2011)
A recent professional highlight was acting as a visiting professional in the Prosecutor’s office at the International Criminal Court at the Hague, Netherlands. Although there were many questions raised by this institution, he came away with a new appreciation for the efforts of the attorney’s there to hold accountable some of the worst offenders in the world.
Despite this long trail of scholarship and honors, Luna can still keep things in perspective. “My classes are cops and robbers,” he smiles, “how do you beat that?”
Professor Erik Luna recently published his article, Judicial Discretion: A Look Back and a Look Forward Five Years After Booker in the Federal Sentencing Reporter. The article is a transcript of a conference about mandatory minimums which was held at the University of Utah Law School. Professor Luna teleconferenced in to give his remarks as part of the panel, which also included: Hiram Chodosh, Allison Weir, William Sessions, Douglas Berman, Steven Chanenson, Benjamin McMurray, Paul Cassell, and Jon Wroblewski.
Professor Luna, in his argument against mandatory minimums, outlined the trivial “cliff effect” that they inherently carry. He gave the example that 4.9 grams crack cocaine carries a relatively short sentence, but add just a fraction of a gram, and 5.0 grams triggers the mandatory 5 years in federal prison. Such a system, he argued, removes the impartial judge from the sentencing procedure and places the arguably partial prosecutor in the sentencing role. Put another way, Prof. Luna stated, mandatory minimums “implicate the separation of powers doctrine by taking away the traditional judicial authority over punishment and vesting this authority in the executive bench, thereby undermining the historic power of the judiciary to check law enforcement.”
Professor Luna also touched upon the troubling effects of mandatory minimums – that they act as a sort of “trial tax” on defendants who exercise their constitutional right to a trial. Additionally, minimums grant excessive leverage to prosecutors, especially upon threat of “charge stacking,” where the government divides up a single criminal episode into multiple crimes to increase the mandatory sentence.
He summed up his remarks by quoting Judge John Martin by saying that “[m]andatory minimums are over-inclusive, they’re unfair, and they can even be draconian. They transfer sentencing power from neutral judges to partisans in the criminal process. They make for poor criminal justice policy and raise all sorts of constitutional problems. Other than that, they’re a great idea.”
Congratulations to Professor Luna for his participation in the conference and on the publication of his article.