Archive for the ‘Law’ Category
Jed Rakoff writes in the NY Review of Books:
The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.
To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.
The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.
It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review.
After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.
The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime.
Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor.
All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place.
At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.
In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors.
One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.
The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.
The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.
Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.
In this typical situation, the prosecutor has all the advantages. . .
As Lord Acton observed, “Power corrupts. Absolutely power corrupts absolutely.” US prosecutors have way too much power and we have repeatedly seen how they have become corrupted—and, even worse, they never suffer sanctions for such things as hiding evidence from the defense, sending innocent people to prison (including to death row). For a prosecutor to get so much as a rebuke is rare, and for them actually have to pay a price for their crimes—for that is what they are—is so rare one can say that it essentially does not happen, even in the most egregious cases.
I also just got Yosemite—and after reading the article I went to System Preferences > iCloud, and yes, indeed, Apple was industriously copying my private data to the cloud without permission or notification: Contacts, Calendar, and some other programs. I unchecked those and I hope that my data are staying on my computer.
It seems pretty damn high-handed of Apple to help itself to my data and transfer it to the cloud, particularly without asking and without notifying me.
Craig Timber reports in the Washington Post:
After security researcher Jeffrey Paul upgraded the operating system on his MacBook Pro last week, he discovered that several of his personal files had found a new home – on the cloud. The computer had saved the files, which Paul thought resided only on his own encrypted hard drive, to a remote server Apple controlled.
“This is unacceptable,” thundered Paul, an American based in Berlin, on his personal blog a few days later. “Apple has taken local files on my computer not stored in iCloud and silently and without my permission uploaded them to their servers – across all applications, Apple and otherwise.”
He was not alone in either his frustration or surprise. Johns Hopkins University cryptographer Matthew D. Green tweeted his dismay after realizing that some private notes had found their way to iCloud. Bruce Schneier, another prominent cryptography expert, wrote a blog post calling the automatic saving function “both dangerous and poorly documented” by Apple.
The criticism was all the more notable because its target, Apple, had just enjoyed weeks of applause within the computer security community for releasing a bold new form of smartphone encryption capable of thwarting government searches – even when police got warrants. Yet here was an awkward flip side: Police still can gain access to files stored on cloud services, and Apple seemed determined to migrate more and more data to them.
The once-clear line between devices – such as Macs or iPhones – and proprietary cloud services is all but vanishing, security experts warn. And it isn’t just Apple doing it. Microsoft, Google and others increasingly are relying on cheap, easily accessible storage capacity to roll out new features for customers. Apple’s automatic saving function allows users to switch seamlessly between devices, without fear of losing documents or edits.
That’s great news if your Mac gets stolen and you need to buy a new one. But security experts such as Paul are asking, at what price in privacy?
“For me,” said Green in an interview, “this is really shocking. I’ve been taking a lot of confidential notes in business meetings in TextEdit” – one of the programs that automatically saves some files to iCloud.
Confusion about how devices and cloud services interact apparently was a factor in the theft of intimate photos of dozens of Hollywood celebrities, such as Jennifer Lawrence, last summer. Their phones were secure, but the photos also were stored in online Apple accounts that, while protected by passwords, were vulnerable to hackers, experts say. It’s not clear the victims had any idea their personal photos were on the cloud, but they were — within the reach of highly skilled Internet creeps.
Paul’s concern is less freelance Internet creeps than the U.S. government, which as he noted in his blog post collects data from U.S. technology companies, including Apple, through the National Security Agency’s PRISM program. . .
Jake Bernstein reports in ProPublica:
A U.S. Senate subcommittee will hold a hearing Nov. 21 on issues of regulatory capture following stories by ProPublica and This American Life about secret recordings made by an examiner at the Federal Reserve Bank of New York.
Sen. Tim Johnson, D-S.D., chairman of the Senate Committee on Banking, Housing and Urban Affairs and Sen. Sherrod Brown, D-Ohio, who chairs the panel’s Financial Institutions and Consumer Protection subcommittee, announced the hearing today.
Witnesses have not been named. In a statement, Johnson said the ProPublica and This American Life reports “are troubling because they raise new questions about regulators being captured by the financial institutions they regulate.”
The examiner, Carmen Segarra, secretly recorded approximately 46 hours of meetings with colleagues at the New York Fed and executives from Goldman Sachs as she examined Goldman’s policies, particularly those relating to conflicts of interest. She was fired after seven months on the job.
The recordings show regulators reluctance to push Goldman too hard for information and the New York Fed’s struggles to beef up its supervision of some of the nation’s biggest banks.
Segarra was dismissed after resisting pressure from higher-ups to change her conclusion that Goldman’s policies were insufficient.
Since the financial crisis of 2008, the New York Fed has received new responsibility for supervising Wall Street’s biggest and riskiest financial institutions. That is despite an internal confidential report in 2009 that concluded that the New York Fed was too deferential to the institutions it oversaw and had a culture in which examiners feared speaking out.
The New York Fed has said Segarra was fired for performance reasons alone and issued a statement defending its record of bank oversight. [Yeah, right---I do not trust the NY Fed (or the SEC for that matter), and quite clearly the NY Fed fired the examiner simply because the examiner was being honest about Goldman Sach's situation, something the NY Fed apparently feels is a firing offense. I do agree that some need to be fired for this, but it is not the examiner. - LG]
A few items from The Watch, Radley Balko’s column in the Washington Post, today by Lucy Steigerwald:
- The Federal Bureau of Investigation (FBI) is requesting greater scopein their power to hack computers outside of their jurisdiction, including ones where the physical location of it is unclear.The American Civil Liberties Union (ACLU) says the FBI is being awfully vague about why this is so essential.
- Other FBI news: In July several agents cut the internet to several suites in a Vegas hotel, then disguised themselves as the men come to fix it, all in order to gather evidence of illegal, high-stakes sports betting. One of the men’s lawyer says that this tactic sets an alarming precedent for law enforcement, and the case should be tossed out.
- Sen. Patrick Leahy (D-Vt.) is mad about all of this FBI stuff, and he is also not happy about the time the Drug Enforcement Administration (DEA) made a fake Facebook page under a very real woman’s name in order to snag drug suspects. Leahy says such things may “erode the public’s trust in the judgment and integrity of law enforcement officers.”
We really should have a good national database of police shootings, at a minimum those shootings that result in fatalities. Here’s yet another police officer shooting a mentally ill person to death. Needless police shootings—pets, mentally ill, people shopping in Wal-Mart—seem increasingly common, perhaps because there is no penalty associated with shooting someone: the officer says, “I feared for my safety,” and all’s well. Nicole Flatow reports at ThinkProgress:
Psychiatric patient Adam Daniel Lopp was being transferred to the hospital in a police vehicle when he was killed by an officer in Iredell County, North Carolina this week.
Sgt. Scott Culler, a Davidson County deputy, said he he shot and killed Lopp on the side of Interstate 40 because he was under attack. Lopp, a 41-year-old patient who was involuntarily committed, has no known criminal history — not even an arrest, and other deputies did not report any other trouble with Lopp, according to local reporting by NBC Charlotte.
The Iredell County Sheriff’s office said there was a confrontation betwen Culler and Lopp after Culler pulled over, and that it’s not clear whether the exchange started in the vehicle, which did not contain a partition sometimes used for transport in police cars. Culler called for back-up, but he shot Lopp before other officers reported to the scene. Culler had no injuries. A spokesman for the department declined to comment to ThinkProgress on whether Lopp was armed or was restrained during transport, but there is no indication that Lopp had access to a weapon.
The North Carolina State Bureau of Investigation is assessing whether criminal charges will be filed, and Culler is on administrative leave. But as a matter of department policy, Maj. Marty Byers of the Iredell County Sheriff’s Department told local news outlet The Dispatch that it’s not recommended “at all” to transport patients who are admitted to psychiatric hospitals without a partition because it can threaten the safety of either the officer or the patient. He says his department advises officers to transport patients with a partition whenever possible. . .
I was stunned when President Obama flatly stated that he would ignore the legal requirements to investigate credible allegations of torture—allegations that by the time of his statement we knew to be factual, but without knowledge of how vast the torture program was nor the details of those guilty of participating in the torture system, torture quite clearly being a crime under US (nd international) law. But President Obama did not seem bothered by it because, you see, the crimes had been committed in the past, so that we should not even look into them: “Look forward, not back,” something that must have puzzled law-enforcement agencies, whose total workload and responsibilities are dealing with crimes that took place in the past. However, I am sure it was heartening to criminals everywhere—and in particular those who had tortured people (some of them perfectly innocent of any wrong doing) and transported people to be tortured: The President has said that bad deeds done in the past are perfectly okay.
But now the dereliction of duty is starting to fester. Murtaza Hussein reports at The Intercept:
Months after President Obama frankly admitted that the United States had “tortured some folks” as part of the War on Terror, a new report submitted to the United Nations Committee Against Torture has been released that excoriates his administration for shielding the officials responsible from prosecution.
The report describes the post-9/11 torture program as “breathtaking in scope”, and indicts both the Bush and Obama administrations for complicity in it – the former through design and implementation, and the latter through its ongoing attempts to obstruct justice. Nothing that the program caused grievous harm to countless individuals and in many cases went as far as murder, the report calls for the United States to “promptly and impartially prosecute senior military and civilian officials responsible for authorizing, acquiescing, or consenting in any way to acts of torture.”
In specifically naming former President George W. Bush, Department of Justice lawyer John Yoo and former CIA contractor James Mitchell, among many others, as individuals sanctioned torture at the highest levels, the report highlights a gaping hole in President Obama’s promise to reassert America’s moral standing during his administration. Not only have the cited individuals not been charged with any crime for their role in the torture program, Obama has repeatedly reiterated his mantra of “looking forward, not backwards” to protect them from accountability.
Needless to say, you shouldn’t try that defense in court if you’re an ordinary American on trial for, say, a drug crime.
It’s also worth remembering that, horrific as it was, the torture regime described in the report was only a tiny part of the wide-ranging human rights abuses the United States committed after 9/11. It doesn’t even account for the network of prisons where hundreds of thousands of people were detained in Iraq and Afghanistan – many of whom suffered beatings, rape and murder at the hands of U.S. soldiers.
The environment that allowed such treatment as again authorized at the highest levels, but just as with the CIA program the only people to receive any legal sanction for these actions have been low-level soldiers who’ve essentially been used as scapegoats for the crimes of their superiors.
By refusing to prosecute Bush-era officials for their culpability in major human rights abuses such as the CIA program and Abu Ghraib, President Obama is not just failing to enforce justice but is essentiallyguaranteeing that such abuses will happen again in the future. His administration has demonstrated that even if government officials perpetrate the most heinous crimes imaginable, they will still be able to rely on their peers to conceal their wrongdoing and protect them from prosecution. This not only erodes the rule of law, it also helps create a culture of impunity that will inevitably give rise to such actions once again. . . .
And it’s worth noting that Obama appointed John Brennan, deeply implicated in the torture program, to head the CIA, and has had people involved in the torture program trying to whitewash the Senate report on the torture program—while Obama refuses to declassify it.
Obama is quite clearly a willing accessory to the torture program, going to great lengths to protect those who did the torture and to prevent the US public from knowing exactly what happened. This is a dark blot on his record and reveals an aspect of his character worth considering.
Interesting story in Politico by Garrett Graff:
il Kerlikowske was hoping to make it through at least his first week on the job without being awakened in the middle of the night. President Barack Obama’s new head of Customs and Border Protection, Kerlikowske could have used a week of quiet as he began to figure out the nation’s largest law enforcement agency, with its 46,000 gun-carrying Customs officers and Border Patrol agents and massive $12.4 billion annual budget. He didn’t get it. On his sixth night after taking office in March, a Border Patrol agent’s single gunshot 1,500 miles away from Washington interrupted Kerlikowske’s sleep. The gunshot itself wasn’t all that surprising; Border Patrol agents regularly open fire on suspected smugglers, border crossers and people harassing them from across the Mexican line. So often, in fact, that the agency doesn’t even bother to release details on most shooting incidents. But this wasn’t a regular shooting incident.
Early the day before, while Kerlikowske, an affable career cop who had spent five years as Obama’s drug czar, was going about his meetings in CBP’s headquarters at Washington’s cavernous Ronald Reagan Building, three Honduran women had surrendered to a green-uniformed U.S. Border Patrol agent in the Rio Grande Valley.
That, too, was a common occurrence. “RGV,” as it’s known in the Border Patrol, has been the epicenter of this year’s “border crisis,” the latest in a long series that stretches back decades—crises that inevitably lead to calls for more money, more agents, more fences. In this year’s iteration, tens of thousands of people fleeing the Central American countries of El Salvador, Guatemala and Honduras have journeyed through Mexico to turn themselves in at the U.S. border seeking asylum. Many of the refugees have been unaccompanied minors (“UACs” to the bureaucracy), a fact that strained the U.S. government response and unleashed critical 24-hour cable media coverage. RGV had been particularly flooded, and so the detention of the three Honduran women—a mother, her 14-year-old daughter and a second teen—around midday on March 12 shouldn’t have been anything other than routine.
Except that they surrendered to Esteban Manzanares.
Manzanares, a stocky 32-year-old agent who kept his head shaved short, was already under suspicion for misconduct—colleagues suspected he had let two border violators go free—but there was a huge backlog of misconduct cases at the inspector general’s field office in McAllen, Texas, and Manzanares was but one small unconfirmed red flag amid many along the southern border, so even under suspicion, he remained on duty with the Border Patrol.
Rather than detain the three Honduran women and bring them to the McAllen holding center, a 300-bed unit that some nights this spring hosted more than 1,000 people, Manzanares locked the women in the back of his Ford patrol truck—and drove them around the scrubland surrounding McAllen for an hour or two. It was a perfectly lovely South Texas day—sunny, low 70s, a bit cool for that time of year.
At 3:15 p.m., Manzanares texted his ex-wife, saying he wanted to be a good dad to their two children: “I want to help in any way I can but I am very limited.”
Then he stopped his truck in a wooded area. He raped both the mother and the daughter. He slit the mother’s wrists and tried to break the daughter’s neck, leaving them for dead in the brush.
He drove off with the third woman bound in his green-and-white heavy-duty Border Patrol truck with a red-and-blue light bar on top, a Department of Homeland Security logo on the door and a U.S. flag on the hood. Somewhere out in the borderlands, the agent left his third prisoner hidden, bound with duct tape.
Manzanares wrapped up his scheduled shift a little after 4 p.m. and returned his truck to the motor pool at the McAllen Border Patrol station, a huge new 68,000-square-foot facility constructed for $22.4 million as part of the agency’s influx of new agents and money over the past decade. Only at 5:45 p.m., his paperwork for the day completed, did he finally pull out of the Border Patrol station. His apartment was just three miles straight down the highway, past South Texas College and then a right turn at the Exxon station, but he wasn’t going straight home.
It was just around that time that other Border Patrol agents made a horrifying discovery, spotting one of the women Manzanares had left for dead wandering past a security camera—one link in the huge post-9/11 network of electronic eyes and sensors that now monitors the border region. Agents responded to the scene and after a brief search located both the injured mother and daughter, took them to the hospital and began looking for their attacker; the women described him as wearing green, so the agents suspected they were looking for one of their own.
They were, and he was not far away: After leaving work, Manzanares had retrieved the third victim and brought her back to his apartment in a housing complex, the last set of buildings before the Rio Grande that demarcates the two countries. The complex was home to a number of his Border Patrol colleagues—including his next-door neighbor and one across the hall. They all joked about how safe it was. Border Patrol agents seemed to be everywhere in McAllen these days, as the agency since 9/11 had become one of the region’s largest employers, a boon for one of the poorest metropolitan areas in the country. There were now some 3,200 agents in RGV—driving along the border, patrolling by boat, flying overhead in helicopters, working interior checkpoints, watching cameras, staffing the Border Patrol’s new overhead surveillance blimp, the latest high-tech toy cast off by the Pentagon and repurposed to protect the border.
Back inside his apartment, . . .