Criminal Justice

  • April 16, 2015
    Guest Post

    by Jed S. Rakoff, U.S. District Judge for the Southern District of New York; Adjunct Professor, Columbia Law School

    *The following is a speech given by the author at the Harvard Law School Conference on Lawyers as Professionals and Citizens on April 10, 2015.

    I have read with great interest the brilliant essay on Lawyers as Professionals and Citizens by Ben Heineman, Bill Lee, and David Wilkins that is the subject of the conference, and I want to build my little talk around the fourth ethical responsibility they enunciate in that essay, namely, the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility – which I will refer to here simply as the “Fourth Principle” – as it applies to lawyers and as it applies to judges; and while I recognize that the essay that is the subject of this conference focuses particularly on corporate and economic issues, I want to address this Fourth Principle in terms of other issues, such as war and such as imprisonment.

    I was introduced to this Fourth Principle, in effect, as a very junior associate at the New York City firm now known as Debevoise & Plimpton.  When I arrived at the firm in 1970, the leader of the firm, Francis T.P. Plimpton, was just completing his two year stint as President of the New York City Bar Association, then known as the Association of the Bar of the City of New York.  Although that organization was founded in 1870 for the specific purpose of seeking the removal of corrupt judges beholden to the man called “Boss” Tweed, by the middle of the twentieth century the Association had become a somewhat stuffy “Establishment” enclave, widely perceived (though perhaps unfairly) as subservient to the narrow interests of big-firm corporate lawyers.  On paper, Plimpton was more of the same.  Educated at Exeter, Amherst, and Harvard Law School, Plimpton could literally trace his Massachusetts forebears back to 1630.  And his chief fame as a lawyer consisted of being a highly skilled draftsman of corporate debentures – whatever the heck that is.

    But once Plimpton became President of the New York City Bar Association, the real Francis Plimpton emerged: a man of principle and courage, who, more than any other single person, opened that Bar Association to racial and gender diversity, to concern with pro bono representation and public service, and to a focus on broad societal issues.  As Sheldon Oliensis, another prominent lawyer of that time, stated, “He [Plimpton] thought that there was no issue on which the Association could not be heard.”  In a period when much of the legal establishment was reacting negatively to what it perceived as the lawless excesses of the ‘60s, Plimpton not only embraced a very broad view of the role of the lawyer in society, but also saw that role as one of promoting change and progress.

  • April 9, 2015

    by Nanya Springer

    On “mommy blogs” across the Internet, pregnant women lament that perfect strangers feel entitled to pat their bellies, offer unsolicited diet and parenting advice, and ask intrusive questions about their personal health.  For most women, such invasions are at most a temporary social annoyance.  But it should come as no surprise that in this culture of entitlement to pregnant women’s bodies, legislation that effectively strips pregnant women of their privacy and autonomy is widespread and, in many instances, has resulted in incarceration and forced intervention by the state.

    The ceaseless barrage of measures restricting the liberty of pregnant women takes many forms.  First, there are laws that place medically unnecessary (and sometimes irrational) mandates on abortion procedures: waiting periods, crisis pregnancy center counseling, ultrasounds, physician scripts, ambulatory surgical center requirements, hospital admitting privileges, hospital transfer agreements, procedure-specific bans, parental consent laws, restrictions on private insurance coverage, and the list goes on.

    In Texas – a state where judges are elected – a bill is being considered that would publicize the names of judges who give minors permission to obtain an abortion.  The Ohio House last week passed a bill that would ban abortion once a fetal heartbeat is detected – possibly before a woman even knows she is pregnant – and provide for doctors who violate the ban to be imprisoned.  A new Arizona law requires doctors to tell patients, contrary to medical evidence, that drug-induced abortions can be reversed.  And on Tuesday, Kansas became the first state to ban dilation and evacuation as an abortion method.

    Such restrictions and state-sanctioned intrusions into the doctor-patient relationship are alarming, but they are not the end of the story.  At least 38 states have enacted “fetal homicide” laws, the majority of which apply to even the earliest stages of gestation.  These laws, which were originally sold to the public as tools to prosecute abusive boyfriends and others who may harm pregnant women, are increasingly being used to prosecute pregnant women themselves.

  • April 8, 2015
    Guest Post

    by Nashwa Gewaily, Fellow at the ACLU of Massachusetts.

    On the evening of March 27, an apparent shootout left a police officer critically wounded and a man dead on the streets of Boston’s Roxbury neighborhood. As word of the incident spread, divergent narratives emerged and questions abounded across social media and news sites. In the aftermath, the Boston Police Department and its commissioner were widely praised in traditional media outlets for quickly sharing with select community figures an unbiased account of what had transpired: video footage from a nearby business that captured critical moments of the encounter.

    In the wake of a number of high-profile fatal police encounters, followed by community outrage and mass demonstrations, one could easily anticipate the heavy cloud of tension over Boston had nothing been produced to clear the air.  This incident is one of tragic many that reveal the benefits of capturing police encounters on video.

    Yet, it comes at a time when states are scrambling to make it much more difficult for police incident footage – specifically, police encounters recorded by body-worn cameras – to see the light of day. Citing privacy concerns, legislators in at least 15 states have introduced bills that would exempt from public records law or otherwise limit the disclosure of police-civilian encounter footage obtained from body cameras.  While there is certainly an obvious need to protect the privacy of anyone videotaped by police, the over breadth of many of the proposed rules only serve to undermine the transparency that is sorely needed to bring accountability to police departments.

  • April 7, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    What do the cases United States v. Approximately 64,695 Pounds of Shark Fins and State of Texas v. One 2004 Chevrolet Silverado have in common?  They both involve the practice of civil forfeiture - the seizure of property that law enforcement officials suspect of being involved in criminal activity.  While in criminal forfeiture the government has to prove a defendant’s guilt beyond a reasonable doubt in order to seize property tied to the criminal activity, that’s not the case in civil forfeiture proceedings.  In these actions, the property itself is charged with a crime – hence the strange case titles – and it is not necessary for the government to demonstrate that a property owner is guilty of any misconduct.  In fact, civil forfeiture often takes place even when criminal charges are never filed.

    As described in an extensive study done by the Institute for Justice, civil forfeiture laws at the federal level and in 42 states perversely incentivize forfeiture actions.  The money is often used to pay salaries and purchase equipment, providing an incentive for law enforcement officials to increase the number of seizures.  In Philadelphia alone, officials seized approximately $64 million dollars in assets in a 10-year period, and the Philadelphia District Attorney’s office used $25 million of that to pay salaries.  A class action lawsuit has been filed challenging Philadelphia’s appetite for civil forfeiture proceedings.

    The practice is getting the scrutiny and criticism it deserves.  In a comprehensive investigation, The Washington Post reported last year that police have seized almost $2.5 billion from motorists and others without search warrants or criminal indictments since September 11, 2001.  The New Yorker also examined the out of control practice, as did one late night comedy show.  In addition, the Department of Justice report on the Ferguson police department highlighted the role of law enforcement as a municipal revenue generator, noting that the city’s law enforcement activity “shaped by the City’s pressure to raise revenue, has resulted in a pattern and practice of constitutional violations.”

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.