Archive for the ‘Law’ Category
When the “cure” becomes too destructive, it’s not longer a cure. In the NY Times Julie Bosman points out the devastating effects of sex-offender registries:
. . . As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries.
“The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”
But once Mr. Anderson leaves jail in the coming week, he will be bound by the same restrictions that apply to more extreme sex offenders, tagged with a “scarlet letter” for life, as his father, Lester Anderson, put it.
“At the end of the day, he might be out of jail, but he’ll still be in his own jail,” his father said. “He has to walk down the street every day and think: ‘Am I too close to a school? Is there a child who’s close to me?’ ”
There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses. In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low-risk individuals to live in areas closer to schools and parks that were previously off limits. Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.
Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry.
“It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”
Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”
Mr. Anderson’s parents are fighting back on behalf of their son, saying that while they believe he made a mistake, his punishment is extreme. They have been joined by the girl, who is now 15, and her mother, who have also defended Mr. Anderson, appearing in a Federal District Court in Michigan this spring to ask a judge for leniency.
“I don’t want him to be a sex offender, because he really is not,” the mother said, according to court transcripts. Her daughter told the judge that she felt “nothing should happen to Zach,” adding, “If you feel like something should, I feel like the lowest thing possible.” The judge, Dennis M. Wiley of Berrien County District Court in Michigan, was apparently not swayed by their testimony. After Mr. Anderson pleaded guilty to criminal sexual conduct in the fourth degree, the judge declined to grant him a special status intended for young offenders. The status, under the state’s Holmes Youthful Trainee Act, would have spared him inclusion on the sex offender registry and erased the conviction from his record if he did not violate probation. . .
Bartenders are required (in almost all states and in DC) not to serve alcohol to intoxicated patrons, and they have been found liable in cases in which patrons who became drunk at a bar caused a traffic accident as a result of their driving under the influence.
The same sort of reasoning has been applied to a Kansas gun dealer, as described in the NY Times by Teresa Tritch:
It has been 12 years since Russell Graham, a convicted felon, shot and killed his eight-year-old son, Zeus, and then himself in Cherokee County, Kansas.
It has been 10 years since Zeus’s mother, Elizabeth Shirley, filed a negligence lawsuit against the husband-and-wife owners of the gun shop where Mr. Graham acquired the shotgun he used in the murder-suicide.
This week, the parties settled the case; Ms. Shirley is to receive the maximum amount available under the owners’ insurance policy as well as a payment from their personal assets.
Along the way, the case has set important precedents for holding gun dealers accountable when they put guns in the hands of dangerous people.
At the crux of the tragedy is the fact that as a felon, Mr. Graham could not legally buy or possess a gun. He prevailed upon his grandmother to go with him to the gun shop and act as the purchaser. It is the duty of a gun dealer to refuse a suspicious sale, but the shop’s owners, Joe and Patsy George, allegedly missed or ignored telltale signs that the transaction was an illegal straw purchase, in which a person who is prohibited from buying firearms uses another person to buy a gun on his or her behalf. For example, straw purchases often involve two people entering the store together and paying in cash, as occurred in this case. In addition, the grandmother later said that one of the store owners, Joe George, asked Mr. Graham if he “had been a good boy.” Mr. Graham replied that he had a felony conviction, at which point the shop owner said, “Let’s see if grandma has been a good girl.”
Mr. George denied the conversation with Mr. Graham took place, but admitted to making the comment about the grandmother. For her part, the grandmother, who was later diagnosed with Alzheimer’s disease, signed the paperwork for the purchase, but did not read it or fill it out fully because, she said later, she did not consider herself the actual buyer. She passed the background check and Russell Graham left the shop with the shotgun, using it that night to commit murder and suicide.
In 2010, the Kansas Court of Appeals found . . .
Radley Balko has a good column on a fatal shooting in Texas:
The two disturbing videos below depict the fatal police shooting of James Bushey, 47, of Elkhart, Tex. The videos are taken from the body cameras of two officers with the Palestine, Tex., police department.
Bushey was suspected of stealing some alcohol from a local Wal-Mart. The videos depict Sgt. Gabriel Green calmly and non-aggressively confronting Bushey in the bathroom of an Applebee’s restaurant. He and Officer Kaylynn Griffin then escort him outside the restaurant. Bushey then pulls a BB gun pistol from his pocket and points it at the officers. They then open fire and kill him. By all appearances, this shooting looks both justified and unavoidable. Judging by the local newspaper account of the shooting, Bushey was likely attempting suicide-by-cop. It’s really the only explanation for why he’d knowingly pull a non-lethal gun on two police officers armed with guns that shoot actual bullets.
But these two videos also show why police groups and their supporters ought to embrace the use of body cameras. The most obvious reason is that these particular videos completely vindicate Green and Griffin. Not only do the videos show the shooting to be justified, but they also show that the two officers handled the entire situation professionally and without unnecessary escalation. (Note the moment where Sgt. Green spots a knife on a table and subtly slides it out of Bushey’s reach.) Even if you’re a cynic and believe the officers were only acting that way because they were on camera, that’s all the more reason to embrace the use of body cameras. They can encourage best practices.
Many critics (including me) believe courts and prosecutors are too deferential to police narratives, especially when they’re contradicted by other witnesses. But outside the criminal justice system, any time a cop shoots someone there will always be some suspicion about whether the shooting was justified and necessary. For example, given how inexplicable Bushey’s actions were, it isn’t hard to imagine a critic questioning whether the BB gun was planted. (It wouldn’t be unprecedented.) This is a good example in which an independent video narrative can remove all doubt.
On a broader level, videos like these can also show doubters that there are police shootings that are not only legally justified, but also couldn’t have been prevented. These two videos put you right in the officers’ shoes. It’s hard not to feel the life-and-death rush of adrenaline that undoubtedly washed over Green and Griffin the moment they saw Bushey’s gun.
That perspective is also important. . .
Conor Friedersdorf reports on a speech by a Federal judge who excoriated the War on Drugs as a failure that has damaged the US severely. He writes:
Former Federal Judge Nancy Gertner was appointed to the federal bench by Bill Clinton in 1994. She presided over trials for 17 years. And Sunday, she stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed.
Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories––to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”
No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.
She went on to savage the War on Drugs at greater length.
“This is a war that I saw destroy lives,” she said. “It eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums… and created an intergenerational problem––although I wasn’t on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”
She added that . . .
Continue reading. At the link, a video of the talk.
The Obama Administration continues its bad record with respect to criminal justice and human rights. Adam Winkler reports in Slate:
The Supreme Court just ended its most liberal term in memory. Frommarriage equality to health care to housing discrimination tolegislative districting, the court decided a number of high-profile cases in ways favored by the political left. There was no better reflection of the liberal rout than the photos of President Obama joyously bear-huggingstaff members upon hearing of the health care ruling.
The president’s glee overshadows the relatively poor success rate the administration had this year at the Supreme Court. While the executive branchhistorically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants.
The administration’s low win rate might seem to be the inevitable result of ideological disagreements between a liberal president and a conservative court. Yet the data suggest a more surprising story: The liberal justices voted against the Obama administration more often than the conservatives did.
The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy, who each sided with the administration more often than not (in 52 percent of the cases).
A closer look at this term’s lineup suggests a reason: The administration was far more conservative on criminal justice issues than the Supreme Court was. Although a majority of the justices upheld Oklahoma’s right to use unreliable drugs for lethal injections, Justice Breyer’s critique of the death penalty—coupled with Justice Kennedy’s critique of solitary confinement in a case last week—more accurately captures the mood of the Supreme Court’s criminal justice decisions this year.
The court rejected the administration’s argument that fishermen can be prosecuted under the Sarbanes-Oxley Act for destroying illegal catch; that people can be prosecuted for criminal threats on Facebook without proof of intent; that police can extend a traffic stop to bring in drug-sniffing dogs; that convicts can’t sell their firearms; that prosecutors don’t have to prove a defendant knew he had a controlled substance analogue; and that aprovision of the Armed Career Criminal Act wasn’t unconstitutionally vague.
Add in the Supreme Court’s expansion of whistleblower protections and itsrefusal to allow the Board of Immigration Appeals to deport someone for unspecified drugs—both contrary to the administration’s arguments—and you have a remarkable number of cases this term promoting more liberal, less law-and-order outcomes than sought by the administration. The dissenters in these cases were an unlikely line-up of administration allies, in the main Justices Antonin Scalia, Samuel Alito, Thomas, and Kennedy.
When criminal justice cases are included in the assessment, the Supreme Court was in some ways more liberal than the Obama administration this term.
More outright theft by law enforcement: $167,000 taken for the simple reason that the officers wanted it
Tim Cushing reports at TechDirt:
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of “reasonable suspicion” and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a “left-lane violation” — driving too slow in the passing lane. (This itself isn’t actually a moving violation, but the Supreme Court’s Heien decision has ensured that law enforcement needn’t be slowed by actual knowledge of the laws they’re supposed to be enforcing.)
This lead to some questioning, because reasons:
Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.
Obsolete vernacular = “reasonable suspicion.” That and State Trooper Greg Monroe felt Gorman’s claimed employment with a “beach activities and paddle board company” sounded similarly “rehearsed.” Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:
Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.
Monroe smelled money and he wasn’t about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he “might want to follow up on the information.” Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn’t impressed.
The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.
On top of this, Monroe called Deputy Fisher directly to “relay his suspicions.” He also inflated the amount of money Gorman had admitted to be carrying with him — from $2000 to $5000. Fisher left the Sheriff’s Office ostensibly to perform a “roving patrol,” but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it “crossed the fog line” a few times.
Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran thesame records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.
[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.
Even if you believe — like the Supreme Court does — that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher’s next statements indicate that bringing a drug dog onto the scene is just an easy way to generate “probable cause” where none exists.
Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”
Armed with the drug dog’s affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to “alert” on objects inside the vehicle, no drugs were found. The only thing “illegal” in Gorman’s motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn’t.
Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney’s fees. Why? Because the government lied every step of the way.
First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the “suspicions” generated by the first. This is something law enforcement cannot do. . .
Radley Balko writes in the Washington Post:
If there was a bright spot in yesterday’s regrettable Supreme Court decisionin Glossip v. Gross, it’s that at least two current justices — Stephen G. Breyer and Ruth Bader Ginsburg — are open to the idea that the death penalty is unconstitutional. It seems at least possible that Sonia Sotomayor may move in that direction as well. Unfortunately, that bright spot was overwhelmed by opinions from Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. that indicate they are as adamant as ever about keeping capital punishment around, and, at least in the case of Thomas, open to expanding it to include juveniles, and for crimes other than murder.
As my colleague Mark Berman pointed out, there was an interesting and sad footnote to yesterday’s decision. In his dissent, Breyer noted the case of Glenn Ford, a Louisiana man who spent 30 years on death row before he was finally exonerated and released. Ford died of lung cancer just hours before the Glossip decision was released. Despite his exoneration, Ford was never compensated for his wrongful conviction or for the unfathomable amount of time he spent not only locked up but also awaiting his execution. He was released just in time to succumb to lung cancer, all while fighting the state of Louisiana for recompense. The man who prosecuted Ford, Mark Stroud, has since apologized, asked Ford’s forgiveness and declared the death penalty to be an “abomination” that “continues to scar the fibers of this society.”
Of course, Ford isn’t the only death-row inmate to be exonerated. There are more than 100 others, just since 1973. He isn’t even the only one in Louisiana.In Orleans Parrish alone, during the reign of notorious District Attorney Harry Connick, four death-row inmates were exonerated, representing 11 percent of the capital convictions during his tenure. Others were released without being granted full exonerations.
On the surface, yesterday’s decision in Glossip was about the constitutionality of a specific drug now used in some states for lethal injections. But the case touched off a broader and contentious discussion among the justices about lethal injection and the death penalty in general. Scalia in particular wrote a scathing, abrasive opinion that mocks “abolitionists” and bizarrely concludes that in opposing capital punishment, Breyer and like opponents of the death penalty “oppose the Enlightenment.”
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.
Of course, lots of Enlightenment thinkers were well aware of the perils of subjecting basic rights to the whims of democracy. (Or as James Bovard once put it, “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”) The driving principle behind the Enlightenment was the rejection of blind deference to tradition and authority and instead embracing reason, individualism and empiricism. Both Scalia’s and Alito’s opinions are not only dismissive, they’re also downright contemptuous of Breyer’s use of data to show that the death penalty is unequally applied, racially biased and ineffective. They reject Breyer’s long list of cases in which prosecutors and/or police were shown to have manufactured evidence, hidden exculpatory evidence and committed other egregious misconduct. Instead, they simply point out that the Supreme Court has upheld the constitutionality of the death penalty for 40 years, so they aren’t about to consider it now. Here, for example, is Scalia:
A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.
This is about as thorough a rejection of Enlightenment principles as one can imagine a Supreme Court justice articulating. It’s a abrupt dismissal of empirical data (not even an attempt to grapple with it) in favor of an appeal to tradition.
The most compelling argument against the death penalty has always been innocence. Scalia undoubtedly knows this, which is why he over the years has attacked this argument by both insisting that it’s extremely unlikelyan innocent percent has ever been executed and that, even if it has happened, the execution wouldn’t be unconstitutional so long as the innocent person was afforded due process. The latter argument doesn’t tend to go over well. Most of us intuitively believe that if the right to due process means anything at all, it means you won’t be executed for a crime you didn’t commit. Or put another way, any system that not only allows an innocent person to be executed, but also is okay with it after the fact is, by definition, a system unconcerned with due process.
But Scalia’s first claim is increasingly under fire, too. Several journalists — most notably David Grann in the New Yorker — have made a compelling case for the innocence of Cameron Todd Willingham, who was executed by Texas in 2004. The sheer volume of DNA exonerations of death-row inmates suggests that there are serious flaws in how we try these cases. Common sense suggests that these same flaws also exist in cases for which DNA isn’t a factor and therefore doesn’t provide a safety net for wrongful convictions.
Scalia’s vituperative opinion in yesterday’s lethal-injection case is particularly brazen given the case of Henry Lee McCollum. . . .