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.
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:
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.
We have lately witnessed several high‐profile criminal events for which insanity may or may not be a tempting explanation. To name only the most prominent, consider the spree killings in Aurora, Colorado and Oak Creek, Wisconsin; Anders Breivik’s rampage in Norway; and the shooting of former representative Gabrielle Giffords and a group of her constituents. Giffords’ shooter, Jared Lee Loughner, was medicated against his will for nearly a year and recently entered a guilty plea. Anders Breivik has denied the suggestion that he was mentally ill, insisting that he is of sound mind and motivated only by ideology.
At Cato Unbound this month, we’re taking a close look at mental health and the law. American University’s Dr. Jeffrey A. Schaler is skeptical that “insanity” is a good explanation for criminal — or any — behavior. Indeed, Schaler denies that “mental illness” is a valid category of disease. For that reason he is also one of the world’s foremost exponents of consensual psychiatry, a branch of the discipline first comprehensively defended by Dr. Thomas Szasz: if a patient wishes to be treated, he should be allowed to seek treatment; if not, his behavior remains his own responsibility.
Dr. Allen Frances, professor emeritus of psychiatry at Duke University, disagrees in part: while mental illness is unlike many other diseases, those who present a clear threat to others owing to mental illness should not be treated either as criminals or as harmless. They have a condition that needs to be treated in order for them to rejoin the rest of society.
Jacob Sullum, a journalist and author who has often written on mental health, therapy, and the law, points out that psychiatry can’t have things both ways—either a criminal is responsible for his actions, in which case he should be punished; or the criminal is not responsible for his actions, in which case one might argue for involuntary treatment. Yet current laws, particularly regarding sexually violent predators, often try to do both to the same person.
Amanda Pustilnik, an associate professor of law at the University of Maryland, argues that the outrage about coercive psychiatry is misplaced: more mentally ill people inhabit our prison system than are to be found in our psychiatric hospitals. They get there not because they are more criminal, but because they are less cooperative with police, worse at defending themselves in court, and find it difficult to comply with the rules of prison life and parole. Many of these people would prefer to be in mental institutions, where they would receive the treatment they both need and want.
The conversation will remain open through the end of the month, so be sure to subscribe via RSS or follow us on Twitter. We welcome readers’ letters and may publish them at our option; send them to J Kuznicki (at) cato . org.
My column at the Washington Examiner (and Reason.com) this week uses the collapse of the Dominique Strauss‐Kahn case to argue against the “perp walk,” which has become a form of pretrial punishment and a way for spotlight‐hungry prosecutors to grab attention — whether the ‘perp’ turns out to be guilty or not:
Back in May, when New York law enforcement paraded DSK before the cameras, hands cuffed behind his back, the French were outraged. “Incredibly brutal, violent and cruel,” France’s former justice minister gasped.
Irritating as it might be to admit it, the French have a point. The “perp walk” — in which suspects are ritually displayed to the media, trussed up like a hunter’s kill — has become common practice among prosecutors. But it’s a practice any country devoted to the rule of law should reject.
Of course, DSK isn’t the most sympathetic victim of the perp walk ever, nor, given paramilitary policing and “no knock” raids, is the perp walk the most abusive police/prosecutorial practice out there. But it’s at best a pointless indignity, and at worst a threat to due process — which is why it should be reined in. For Cato work on police tactics and misconduct, go here; and also see Reason’s recent “criminal justice” issue.
The Wall Street Journal law blog has a piece up on how the budget crisis is impacting public defenders:
Funding constraints have prompted states and counties to lay off public defenders, hold the line on salaries, and reduce the amount defenders can spend case investigators and staff training, the WSJ reports.
Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along. Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.
Stephen J. Schulhofer and David Friedman recently published a Cato Policy Analysis, Reforming Indigent Defense that proposes a free market solution: use vouchers instead of public defenders. This would eliminate the overhead of keeping defense attorneys on the public payroll and improve the quality of representation. As they put it in a related op‐ed:
Vouchers would greatly improve the quality of defense representation, because attorneys hoping to attract business would have to serve their clients well. Better representation will, in turn, produce at least three benefits for society. First, improving defense services will reduce the potential for mistakes. It will be less likely that innocent persons will be wrongfully convicted and less likely that the actual perpetrators will remain free to repeat their offenses.
Second, improving defense services will minimize adverse consequences even for those who would be acquitted under current systems of indigent defense. A better defense makes it more likely that the innocent will be released from custody sooner, with less disruption to their lives and less expense for the jails that hold them.
Third, improving indigent defense will bring better information to the sentencing process — making it more likely that appropriate, cost‐effective punishments will be imposed on those who are guilty.
My colleague Tim Lynch will speaking on Capitol Hill today at a related event, The Last Sacred Cow: How Congress Can Cut Criminal Justice Spending Without Compromising Public Safety.
The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.
Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.
As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:
In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.
After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.
The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.
Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.
So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.