Tag: criminal justice

Time to Overhaul the Criminal Justice System?

This week I hosted a debate between two federal appellate judges on the question, “Does the American Criminal Justice System Need an Overhaul?”  Judge Alex Kozinski says it does; Judge Jay Harvey Wilkinson says it does not.  Watch it here and decide for yourself.

By way of background, Kozinski authored a much discussed article titled, “Criminal Law 2.0.”  One problem he identifies (among many others), is that federal prosecutors too often shirk their legal and ethical obligations.  The Department of Justice tried ignoring his criticism, but is now responding.  Here is a snippet from an article in the National Law Journal (November 16 – sorry, pay wall for this one).

Justice Department Rebuts Judge Kozinski’s Criticism of Prosecutors

In a rare public war of words, top officials at the U.S. Department of Justice are pushing back against recent criticism about prosecutors’ ethics from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

The thrust of the DOJ argument is the familiar, “Trust us – we’ll do the right thing.”  Kozinski rightly insists upon a “trust, but verify” posture as it relates to government promises.

Related items here & here.

 

“Take a Valium, Lose Your Kid, Go to Jail”

During pregnancy “occasional, small doses of diazepam (the generic name for Valium) are considered safe,” writes Nina Martin in a new ProPublica investigation. “But one morning a few weeks later, when [Casey] Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County [Alabama] Sheriff’s Office showed up at the front desk with a warrant. She had been charged with ‘knowingly, recklessly, or intentionally’ causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.” 

Read the whole thing here to learn what happened next. “Shehi had run afoul of Alabama’s ‘chemical endangerment of a child’ statute, the country’s toughest criminal law on prenatal drug use.” It provides for imprisonment of up to ten years in cases where the developing baby has suffered no ill effects from an exposure, as in this case. More than 1,800 women have been arrested under its terms since its passage in 2006. 

In the 2001 case of Ferguson v. City of Charleston the Supreme Court ruled 6-3 that a joint state hospital-police program in Charleston, D.C., infringed the Fourth Amendment rights of pregnant women by subjecting them to drug screening without their knowledge or consent and relaying the results to authorities for prosecution. My colleague Tim Lynch wrote about that case here

You can explore Cato’s decades of research on the Drug War and its consequences for liberty here (adapted and expanded from Overlawyered).

New Policy On White Collar Prosecution Risks Scapegoating

Last week, the Department of Justice announced a new policy regarding its approach to corporate criminal investigations.  Instead of focusing first on the company and, having resolved that portion of the investigation, turning to the task of identifying potential individual criminal suspects, prosecutors are now directed to build their cases against individual wrong doers from the start.  Media coverage of this policy statement has focused on criticism levied against the administration for being too soft on Wall Street and too cozy with corporate donors.  The New York Times trotted out the old complaint that no one went to jail in the wake of the financial crisis (even though, to my knowledge, no one has ever identified a criminal law the violation of which caused any part of the crisis).  While the administration’s rhetoric about equal justice before the law is admirable, the policy memo and its surrounding coverage have a distressing whiff of scapegoating about them. 

Erie County Forced to Hand Over Stingray Documents

A few weeks ago, a New York judge ruled that the Erie County Sheriff’s Office had inappropriately denied a freedom of information request from the NYCLU regarding the office’s use of Stingray cell phone trackers.  The judge ordered the sheriff to release the documents that had been inappropriately withheld.

Yesterday, the sheriff complied and the documents prove exactly what transparency and civil liberties advocates have been arguing: these devices are often deployed in complete secrecy and with no judicial oversight.

Per the NYCLU press release:

The Sheriff’s Office used Stingrays at least 47 times between May 1, 2010, and October 3, 2014, including to assist other law enforcement departments like the Monroe County Sheriff’s Office. It appears that the office only obtained a court order in only one of those 47 circumstances, in October 2014, and even in that case it was not a warrant but a lower level court order (called a “pen register” order). This contradicts what the sheriff said to a local reporter and undermines what he said to the legislature – that this device is being used subject to “judicial review.”

Further, the federal government is directly complicit in this secrecy, forcing law enforcement agencies to sign non-disclosure agreements in exchange for use of the devices.  The agreements forbid participating law enforcement agencies from disclosing the nature of these devices, even to judges and defense attorneys.  The agreement even contains provisions giving the FBI the authority to compel prosecutors to drop criminal cases rather than reveal the Stingray use to the court.

From the non-disclosure agreement:

In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wirelesss collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence of the prosecutorial process.  Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agenices, for inclusion in this agreement.

This is not just idle boilerplate.  Although that provision of the agreements has until now been redacted, civil liberties advocates have long assumed its existence based on several instances of serious criminal charges being dropped when scrupulous defense attorneys or judges start inquiring into how police were able to locate suspects. Perhaps more troubling, the conditional nature of that provision implies that police and prosecutors can use information gleaned from these devices unless the judge or opposing counsel asks the right questions to expose the Stingray use.  That implication raises a troubling question: how often has evidence from illicit Stingray use been allowed to stand because neither the judge nor the lawyer knew what to look for?

A legitimate justice system requires transparency and accountability.  It requires checks and balances and respect for the rule of law. With every revelation about the widespread and unfettered use of cell site simulators by police, it becomes more clear that this program flies in the face of our cherished principles of justice.

 

Stingrays and Police Secrecy

The New York Times this week published a troubling article detailing the secrecy surrounding police use of Stingray cellular site simulators.  Essentially, these devices (which can be mounted on vehicles or carried by hand) mimic the signals of a cell phone tower in order to force cell phones in a given area to connect to the device.  Both data on the phone (including numbers, texts, emails, and any other data stored on the phone) and the phone’s physical location can then be accessed and recorded by police.

Additionally concerning is the extensive use of non-disclosure agreements by the Harris Corporation, which sells the devices, to prevent the public (and in some cases even judges, defense attorneys, and prosecutors) from finding out how these devices are being used or even whether a given department owns any.   The preference for secrecy is so powerful that prosecutors have dropped serious criminal charges simply to avoid having the police use of Stingrays subjected to examination by defense attorneys or judges.

According to the Times,

The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.

The stated reason for the secrecy is the common refrain that terrorists will circumvent the technology if they know what law enforcement is up to.  However, a recent ACLU report was unable to uncover a single instance of these devices being used to bring domestic terrorists to justice in any jurisdiction surveyed. 

The ACLU report estimates that Stingrays are in wide and rapidly increasing use in law enforcement agencies across America.  However, there appears to be very little oversight structure for police departments, legislatures, or courts governing the use of these devices. In some instances, it seems that courts have even unwittingly been authorizing their use without the judge’s full understanding.  For instance, a sampling of applications for court orders from Florida law enforcement agencies informs the judge that the order is for cell phone records, but doesn’t mention anything about how they’re to be obtained.  Police claim such vague orders authorize Stingray deployment, but some judges have been less than enthused upon finding out.

Ideas Have Consequences: The Neoconservatives

The New York Times has produced a useful video about the “super-predator” scare from the 1990s.  At that time, we were already waging a drug war, so we were advised to build more prisons–and so we did.  Then regrets.

You can watch the video here.

As it happens, we are also finding more scrutiny of neoconservative ideas at the movies. A new documentary film directed by Errol Morris looks at former Secretary of Defense, Donald Rumsfeld and the Iraq war.  Here is the film trailer:

For related Cato work, go here, here, and here.

Is the Federal Government Bound by the Agreements It Makes With States?

The Interstate Agreement on Detainers, a compact authorized by federal statute, provides a simple procedure for transferring custody of prisoners between states. Because the federal government annually seeks to prosecute thousands of prisoners already in state custody, it joined the IAD in 1970 to get the benefit of this unified procedure. When it joined, it did so as a “state” for purposes of the agreement, and exempted itself from only two provisions (which aren’t relevant here). One of the provisions that the federal government decided not to exempt itself from, Article IV(a), allows the governor of the sending state to deny any request made by a receiving state to transfer a prisoner.

In September of 2010, Jason Pleau offered to plead guilty to robbery and murder charges in Rhode Island in exchange for life in prison without parole, the harshest sentence that state’s law allows. Pleau’s crimes also allegedly violated federal law, however, and the U.S. government wanted to prosecute Pleau itself in order to seek the death penalty. The federal government thus sought custody through the IAD by filing for the little-known writ of habeas corpus ad prosequendum (“show me the body for prosecution”).

The governor of Rhode Island, Lincoln Chafee, disapproves of the death penalty and used his authority under the IAD’s Article IV(a) to deny the federal request. A federal district court, later affirmed by the U.S. Court of Appeals for the First Circuit, overruled Chafee’s denial, stating that the Supremacy Clause prevented the governor from interfering with the federal government’s wishes.

The First Circuit found that the compact’s specific text and the normal canons of statutory construction were “all beside the point.” According to the court, what was important was that Congress could not possibly have meant to grant state governors the power to deny federal transfer requests—and thus the IAD didn’t affect the balance of power between the federal government and the states. The First Circuit thus granted the writ, and Pleau is now in federal custody.

The question presented here, whether the Supremacy Clause trumps a governor’s right to deny a request for transfer of custody under the IAD, raises two important issues: First, if the First Circuit is right, then the federal government may reap the benefit of interstate bargains without having to fulfill its own obligations under them. Second, the First Circuit’s opinion effectively treats the state courts as inferior to the federal courts, which upsets the system of concurrent sovereignty that the Founders designed.

Cato has joined the Independence Institute to file an amicus brief urging the U.S. Supreme Court to hear this case, with a focus on the second issue. We argue that the U.S. legal system has always recognized the dual sovereignty of federal and state courts, dating back to Chief Justice John Marshall. As Chief Justice Marshall explained, that dual system requires that state courts not be considered inferior to federal courts, and thus federal courts have no independent authority to order prisoners under state jurisdiction to be transferred to the federal system.

Furthermore, when abrogating state sovereignty via the Supremacy Clause, Congress must demonstrate its intent to do so with “unmistakably clear language”—and none of the statutes applicable here contain any such language. Finally, we argue that the First Circuit has misinterpreted relevant Supreme Court precedent and that a proper reading of the relevant case law would establish that a state is well within its rights to treat the federal government like any other state under the IAD and deny its request to transfer a prisoner into federal custody.

The Supreme Court will decide whether to take up the case of Chafee v. United States and Pleau v. United States later this fall.