Tuesday, June 18, 2013

Supreme Court Chips Away At Judges’ Power To Ratchet Up Mandatory Minimum Sentences

Mandatory minimum prison sentences, statutorily imposed by legislatures, are among the major contributors to the U.S. incarceration epidemic. Many federal judges have recognized the injustice of these sentences, and lament that acts of Congress have tied their hands to issue sentences below the mandatory minimums, particularly when it comes to low-level drug offenders. Nevertheless, judges often exercise their authority to hand down sentences above the floor set by law.
In a decision issued Monday, the U.S. Supreme Court held in a splintered 5-4 ruling that judges do not get to raise the floor itself when deciding a criminal defendant’s sentence:
Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

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When You Don’t Have The Right To Remain Silent

Anyone who’s ever watched a crime show knows that the right to remain silent is a fundamental constitutional protection for those who are arrested and read their Miranda rights. But what happens when you aren’t yet in police custody but are nonetheless being questioned by police? In a 5-4 decision along ideological lines, the U.S. Supreme Court held Monday that a man questioned before police custody and not yet read his rights had not invoked his Fifth Amendment right to avoid self-incrimination, when he simply did not answer a police question and remained silent.

The ruling means that prosecutors were entitled to use Genovevo Salinas’ silence against him during a murder trial to argue that jurors should infer guilt from his silent reaction to a police question, even though Genovevo was not present at trial and couldn’t counter this assertion. Salinas had voluntarily answered several other police questions before falling silent on the question of whether shell casings found at the crime scene would match his gun.

While Justice Samuel Alito held for the court that Salinas would have had to explicitly “assert the privilege” by referring to his right to remain silent, the dissent found that defendants cannot be expected to utter particular code words, as the Supreme Court has long said there is “no ritualistic formula” necessary to invoke the privilege.

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Elizabeth Warren Laments ‘Striking Lack Of Professional Diversity’ On Federal Courts, As ‘Corporate Capture’ Escalates

Sen. Elizabeth Warren (D-MA) brought renewed attention to the critical battle over nominees to the federal courts Thursday evening, in remarks that blasted the “corporate capture” of the federal courts, and called on those concerned with the political system to care as much about the make-up of the courts as of the legislature.
Observing courts’ increasing tendency to side with corporate interests and narrow individuals’ access to justice, Warren flagged a glaring skew in the professional experience of federal judges, the vast majority of whom have experience either as corporate attorneys or prosecutors. Warren lamented that only three percent of federal appeals court judges have substantial legal experience working for a nonprofit organization, and a similar percentage have worked in some capacity to enforce civil rights, according to an American Constitution Society report. And while President Obama has been responsible for some of the most notable exceptions to this trend, recent accounts show that the federal courts continue to be dominated by the same sorts of professional backgrounds.
I want to be clear — there are some really, really talented judges who come from the private sector. I myself have worked for private clients. And it is of course true that the personal views of an attorney often diverge from those of his or her clients. But I think diversity of experience matters.
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Police acted unlawfully in demanding legal observer hand over personal details and submit to filming after being kettled in trade union protest

Police acted unlawfully when they demanded that a legal observer who was kettled during a protest hand over her personal details and allow them to film her before she would be permitted to leave, the High Court has ruled.

Campaigners are claiming that the victory will force police to rethink their approach to demonstrations.
Susannah Mengesha said that the policing of the protest, which was run by trade unions and groups such as Occupy London, in November 2011 was “oppressive, aggressive and intimidating”. And two judges agreed with her today that police should never have forced her to hand over the information and should now delete it.
Around 100 people were trapped in a kettle in London’s West End by police after some of their number tried to occupy a building. After around 90 minutes, police started letting people leave in single file but required them to give their names, addresses and dates of birth, as well as to be filmed from head-to-toe.

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Wednesday, June 12, 2013

Ontario ombudsman says jail staff committing ‘brazen acts of violence’

A photo of an inmate known as "Colin" is contained in Ombudsman Andre Marin's report on abuse by some correctional officers in Ontario. Six officers restrained Colin with handcuffs and leg restraints, then beat him to a pulp. Guards initially claimed he hit his head on the floor.
Some prison guards in Ontario beat convicts, then lie about their injuries, scare them into silence and force their colleagues to do the same, says the province’s ombudsman in a damning report on jailhouse violence.
André Marin’s report includes photos of inmates, their eyes swollen shut, their faces covered in blood, and the stories of the prison guards who tried to get away with the attacks.
“Punching, slapping, kicking, stomping on someone who is under control, under restraints, is inexcusable and morally repugnant,” Marin said at a news conference Tuesday.
“Regardless of why they are incarcerated, inmates are human beings and they deserve respect, dignity and humane treatment.”

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Quebec to table bill legalizing medically supervised euthanasia

Medically supervised euthanasia may soon become accessible in Quebec, which would make the province the first in Canada to legislate on the highly controversial issue.

A bill to be tabled on Wednesday is expected to legislate the right to request “medical aid to die” in response to a report that argued that, since medical assistance is used to prolong life, dying patients should also be able to ask for it under strict conditions to end life.

The proposal was the centrepiece of a report entitled Dying with Dignity that was tabled in March, 2012. It was prepared by a non-partisan select committee that consulted widely on the issue.

The opposition Liberal Party has indicated support in principle for the idea, but a party official said that, given the sensitive nature of the debate that will likely ensue, the caucus will examine the contents of the bill carefully before adopting a final position.

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Centre for Criminology and Sociolegal Studies has a new director.



The Centre is delighted to announce that Kelly Hannah-Moffat has been appointed as the Centre’s new director, starting July 1, 2013.
Professor Kelly Hannah-Moffat, who has a PhD from the Centre, is currently Vice-Dean Undergraduate at the University of Toronto in Mississauga (UTM); she was previously chair of Sociology at UTM, and has been cross appointed to the Centre of Criminology and Sociolegal Studies for many years. She is active in the Law and Society Association as well as the American Society of Criminology. She is member of the Editorial Advisory Board for Punishment and Society, British Journal of Criminology, Theoretical Criminology, and Canadian Journal of Criminology.


While doing her PhD, Kelly worked as a policy advisor for Madame Justice Arbour on the Commission of Inquiry into Certain Events at the Prison for Women in Kingston; she was also the President of the Toronto Elizabeth Fry Society. In 2001, she received the Radzinowicz Memorial Prize for the best article in published in the British Journal of Criminology. She is the author of one influential book about women’s imprisonment, Punishment in Disguise, co-editor of Gendered Risks (with Pat O’Malley) and author of numerous articles on parole, risk, gender, and social justice and punishment. Her current national SSHRC project  (with P. Maurutto) examines specialized courts (domestic violence, Aboriginal, community/wellness and drug courts) and how legal practices such as bail, sentencing, and case processing have collectively changed as a consequence of the hybrid approaches used in these courts.

Outgoing director Professor Mariana Valverde will be on leave for one year, and will be working on three major projects. One is a theoretical book on spatiotemporal scales in law, tentatively entitled Chronotopes of Law (to be published by Routledge UK). Together with three colleagues, she has also started work on a SSHRC-funded empirical project on public-private partnerships in local governance (in the Greater Toronto area), for which she is the PI. And she hopes to have time to finally read the pile of urban history books that form much of the material for the long-delayed SSHRC-funded historical sociology project on the legal tools used in major global-North cities to separate ‘good’ from ‘bad’ neighbourhoods.
 



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Saturday, June 8, 2013

On DNA, Supreme Court goes too far

Monday's 5-4 ruling makes Americans more vulnerable to unreasonable searches.

 Taking DNA samples from individuals who have been arrested and running them through a DNA database of unsolved cases can be an effective way of connecting criminals to crimes. That is why the practice is popular with police and the public in states such as California, where voters in 2004 approved the collection of DNA from many criminal suspects. The problem is that it conflicts with the 4th Amendment's prohibition of unreasonable searches and seizures. The Supreme Court on Monday tried to wish that problem away when it upheld a Maryland DNA collection law.

The 5-4 decision affirmed the rape conviction of Alonzo King, from whom a DNA sample was drawn in 2009 after he was arrested for menacing a group of people with a shotgun. When his DNA profile was fed into a database of unsolved crimes, it matched DNA taken from the scene of a rape in 2003. He was charged and ultimately convicted of that crime.
Justice Anthony M. Kennedy's majority opinion disingenuously suggested that swabbing King's cheek for DNA was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."

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This is an LA Times editorial.  Tom

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In Texas, It's OK to Murder an Escort if She Won't Sleep with You

The jury found that Ezekiel Gilbert was attempting to "retrieve stolen property" when he fatally shot Lenora Frago
 
 A Texas jury has acquitted Ezekiel “Zeke” Gilbert in the 2009 murder of Lenora Frago, an escort he met on Craigslist. The defense argued that Gilbert’s actions were “justified” because he was attempting to “retrieve stolen property” when he shot Frago in the neck and back after she refused his request for sex and fled his home with $150 he paid her. The jury, apparently, agreed.
 
Frago died of her injuries seven months after Gilbert shot her.
 
Texas law allows the use of deadly force to recover property during a nighttime theft, but prosecutor Matt Lovell argued that a theft never occurred, as the San Antonio Express-News reported in May:
 
“This case is about a man who got upset about the services he felt he deserved,” [Lovell] said. “He felt he deserved sex.” 
 
 
 

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12 Shocking Examples of Police Brutality...Just This Month

Decades of the drug war have warped the priorities of many police departments. The results can be tragic.

 American law enforcement has undergone a dramatic transformation in the past few decades. The war on drugs, the world's most effective way to fill prisons with minorities while doing nothing to curtail drug use, has warped the priorities and practices of police departments around the country. As Kristen Gwynne has reported on AlterNet, federal funding incentivizes police to go after low-level drug use while neglecting more serious crimes like rape. In city after city, the crackdown on drug crime has expanded police power and pointed it straight at minorities and the poor. It's the reason we're number one when it comes to rates of incarceration. With 5 percent of the population, America has a quarter of the world's prisoners, according to the New York Times. 
Meanwhile, the decade-long war on terror has stocked local police departments with weapons from the battlefields of Iraq and Afghanistan—do local police really need drones and tanks? (Journalist Radley Balko has extensively documented the  militarization of police by way of the wars on drugs and terror.) The shift toward more aggressive, violent policing has had tragic results on the ground. AlterNet has assembled an incomplete list of brutal and unnecessary police actions, from this month alone. 
 
 
 

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Judge at Center of NSA Spying Controversy Attended Expenses-Paid Terrorism Seminar

US District Judge Roger Vinson, who signed an order requiring Verizon to give the National Security Agency telephone records for tens of millions of American customers, attended an expenses-paid judicial seminar sponsored by a libertarian think tank that featured lectures from a vocal proponent of executive branch powers.

Vinson, whose term on the secret Foreign Intelligence Surveillance Court began in 2006 and expired last month, was the only member of the special court to attend the August 2008 conference sponsored by the Foundation for Research on Economics & the Environment, according to disclosure records filed by the federal judge.

The Center for Public Integrity collected the disclosure records as part of an investigative report that revealed how large corporations and conservative foundations routinely sponsor ideologically driven educational conferences for state and federal judges.

It's unclear which lectures Vinson attended during the "Terrorism, Civil Liberty, & National Security" seminar. FREE's website only provides a general agenda for the program and no lecture transcripts.
But Eric Posner, a University of Chicago law professor who delivered two lectures, argued in a 2007 book he co-wrote — Terror in the Balance: Security, Liberty, and the Courts—that "the executive branch, not Congress or the judicial branch, should make the tradeoff between security and liberty."

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Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance

In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

This important case—all the more relevant in the wake of this week's disclosures—was triggered after Sen. Ron Wyden (D-Ore.), a member of the Senate intelligence committee, started crying foul in 2011 about US government snooping. As a member of the intelligence committee, he had learned about domestic surveillance activity affecting American citizens that he believed was improper. He and Sen. Mark Udall (D-Colo.), another intelligence committee member, raised only vague warnings about this data collection, because they could not reveal the details of the classified program that concerned them. But in July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:

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Mass Incarceration USA: How a Broken System Perpetuates Itself

“Wheel about and turn about and do just so. Every time I turn about I jump Jim Crow.”
— chorus of an 1828 minstrel song
“We have not ended racial caste in America, we have merely redesigned it.”
— Michelle Alexander, The New Jim Crow
Yeah, it’s called mass incarceration. Our jails are filled with black and brown men and women. The number of inmates, primarily people of color, has soared sevenfold in the last three decades, according to Alexander, from 300,000 to more than 2 million, the largest number, by far, in the developed world. Many millions more are on probation or parole. And no matter what their crime, the inmates never get their citizenship back. The stigma of being an ex-felon brands someone for life as a second-class human being.

But even before the ex-felon label is attached, certain people — young men of color, in particular — are targeted as society’s losers by the police, judicial bureaucracy and prison system. They face the possibility of police harassment, invasion of privacy and arrest, often on the smallest pretext possible, pretty much any time they step outside.

I live in a vital, racially and ethnically diverse Chicago neighborhood and I watch it happen — racial profiling, the stop-and-frisk game. This is not making my neighborhood safer. It’s wrecking lives at enormous public expense and, of course, like the insane war on terror, creating enemies. We don’t need a justice system based on stereotypes and armed bullying.

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Civil liberties: American Freedom on the Line

A few months before he was first elected president in 2008, Barack Obama made a calculation that dismayed many of his ardent supporters but which he judged essential to maintain his drive to the White House. By backing President Bush's bill granting the US government wide new surveillance powers – including legal immunity for telecoms companies which had co-operated with the Bush administration's post-9/11 programme of wiretapping without warrants – Mr Obama stepped back from an issue that had initially helped to define his candidacy but was now judged to threaten his national security credentials. It was a big call. Even so, it seems unlikely that either supporters or critics, or even Mr Obama himself, ever believed that five years later a re-elected President Obama would oversee an administration that stands accused of routinely snooping into the phone records of millions of Americans.

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