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Outgoing US Attorney General Reflects on Justice System

The question is, are we prepared to [reform] to live up to who we say we are as a nation? . . .

It’s the morally right thing to do, and ultimately it saves us money in the long run.

Eric Holder, the outgoing United States Attorney General, recently gave an interview to members of The Marshall Project, an organization devoted to journalism about the failures of the American justice system.  Holder highlighted successes, failures, and hopes for the future.

His comments on mass incarceration are illuminating.

We have 5 percent of the world’s population, [and] 25 percent of the people in incarceration. That’s not something that we can sustain. One third of the budget at the Justice Department now goes to the Bureau of Prisons, and if you look out to 2020, it goes up to 40, 45 percent or so. Which squeezes out the other things we want to do with regard to other areas of crime that we want to focus on, other initiatives that we want to support.

And then if you look at the impact that mass incarceration has . . . , it leads to broken families, it leads to social dysfunction, it tends to breed more crime. So – look, I’m a prosecutor first and foremost, and as a judge I put people in jail for extended periods of time when that was appropriate. Smart on Crime says if you commit violent crimes you should go to jail, and go to jail for extended periods of time. For people who are engaged in non-violent crimes – any crimes, for that matter – we are looking for sentences that are proportionate to the conduct that you engaged in.

Holder is optimistic that a version of the Smarter Sentencing Act will become law in the next Congress.  That law proposes a number of changes to the federal criminal justice system, including, among other things:

  1. expanding the applicability of a “Safety Valve” provision (18 U.S.C. § 3553(f)), which overrides the mandatory minimum sentence in drug offenses for a small subset of defendants (low-level, first offenders in non-violent offense who cooperated with law enforcement);
  2. reducing the sentences of prisoners sentenced for crack-cocaine offenses before August 2010 to align with current (less harsh) sentences for such offenses;
  3. reducing mandatory minimums for certain drug offenses;
  4. directing U.S. Sentencing Commission to formulate lower recommended sentences so that the federal prison population will not exceed capacity;
  5. adding mandatory minimum sentences for certain offenses of aggravated sexual abuse and increasing penalties for certain domestic violence offenses; and
  6. adding mandatory minimum sentences for terrorism offenses.

According to Holder, “If this is done correctly you not only save money, you keep the American people safe by cutting down on the recidivism rate.”

Holder then commented on the death penalty, saying that

I disagree . . . that we have never put to death an innocent person. It’s one of the reasons why I personally am opposed to the death penalty. We have the greatest judicial system in the world, but at the end of the day it’s made up of men and women making decisions, tough decisions. Men and women who are dedicated, but dedicated men and women can make mistakes. And I find it hard to believe that in our history that has not happened.

I think at some point, we will find a person who was put to death and who should not have been, who was not guilty of a crime.

***

These comments are enlightening, as Holder is not only the top federal prosecutor in the United States, but he was also a line-prosecutor and a judge.  He has prosecuted people and companies, and has likely sentenced thousands of people to hundreds of thousands of years in prison in total.  He then oversaw the entire United States justice system.  And from that perch, he apparently gained a broad perspective of the ills of our system and a strong desire to reform it.

As is true throughout the nation, Raleigh federal criminal defense attorneys should be aware of Holder’s policy positions, as they may be useful in negotiating current cases to achieve results that are in line with where our system is (hopefully) headed.  With the top federal prosecutor lamenting long sentences for non-violent crimes, as well as the corresponding financial burden such sentences place on our country, Raleigh drug crime lawyers and Raleigh white collar defense lawyers should seek to weave these arguments into their discussions with prosecutors and presentations to judges.

It is also refreshing to hear a career prosecutor and judge being realistic about the death penalty and the likelihood that our system has erred in its use.  This recognition–that our government has killed innocent citizens–is the first step toward the abolition of the death penalty, since one government-sponsored killing of an innocent citizen should be enough to dispense with the punishment altogether.

 

New DOJ appointee supports decriminalizing simple possession of all drugs

The war on the “War on Drugs” continues, as the President appointed Vanita Gupta to acting head of the DOJ Civil Rights Division.  Gupta apparently supports decriminalizing the simple possession of all drugs.  (Cite).

Professor Berman at the Sentencing Law and Policy Blog cautions that the term “decriminalize” does not equate to legalizing the drugs.  Still, it would have been unheard of a few years ago for the head of a key DOJ department to take such a position.  Of course, one person’s position is not a DOJ policy, but positions can become policies, particularly when held by key officials.

Raleigh federal criminal defense attorneys and Raleigh drug crime lawyers in particular should keep an eye on these subtle, yet hopeful developments.

 

Cell Phone Tower Data is Generally Unreliable

In an article by The Economist, Larry Daniel of Guardian Digital Forensics–an expert our firm consults with regularly–noted that cell phone tower data, which is used to identify the location and movements of a suspect at a given time in the past, is often misinterpreted.  That is, the conclusions drawn by police (or defense lawyers) about what the data means is often mistaken, and the data may not prove that a particular suspect was in a particular location.

For example, law enforcement officers often assert that mobile phones connect to the nearest tower, which would place a suspect within a given radius of the tower.  However, this assumption does not always hold, as certain towers can handle calls up to 20 miles away.  According to the article, “Which tower a phone connect with depends on such factors as how thick the nearby foliage and walls are, the size of nearby cars and bodies of water, and how well the handset is working.  None of this information is usually recorded.”  Cell tower data is most often used in violent crime cases.

In light of the high error rate in the use of cell tower data, lawyers must not take the government’s assertion of the meaning of the data at face value.  Instead, defense attorneys should retain experts to analyze the cell tower data and be prepared to undermine the prosecution’s conclusions from that data at trial.

 

 

Are You Ready for Some FOOTBALL???

ACC or SEC? Family Law section Cheshire Parker lawyers and staff have started the fall puffing and bragging, taunting and heckling. UNC alums Jenny Bradley and Amy Britt are loving a pre-season #23 ranking but Kimberly Bryan flaunts her adopted Georgia Bulldogs #12 ranking. Dave Holm dons his NC State red but has more luck of late with his Miami Hurricanes. On Gameday Friday’s, John Parker subtly boasts by sporting his Tennessee orange bow tie. This post lobs the first pass – more to come. <sic ’em Dawgs>

 

Cheshire Parker Cyclists Hit the Road to Find Cure for MS

Two of our firm’s lawyers, Jenny Bradley and Kimberly Bryan, are active members of the Selma Cyclepaths–a fundraising team for Multiple Sclerosis. Their team has raised over $1 million for Bike MS. We are proud of our firm’s commitment to giving back to our community. Here’s a feature story from WRAL about the Cyclepaths.

 

Judges dismiss Moral Monday Cases on First Amendment Grounds (Finally)

More than 900 people were arrested last year in what is known as the “Moral Monday” protests.  Protesters would generally congregate outside the Legislative Building in Raleigh and then walk inside in a large group. Invariably, after being allowed in and allowed to assemble for a period of time, the head of the Capitol Police would demand that everyone leave within minutes. Those who remained on the second floor of the building after this demand were indiscriminately arrested and charged with various misdemeanors, including trespass, failure to disburse, and violation of building rules.

The Wake County District Attorney’s Office offered to dismiss the charges in exchange for admissions of responsibility and an agreement to complete community service.  Hundreds chose not to take the deal and have been going to trial.  Over time, the State decided to dismiss the failure to disburse and violation of building rules charges, but continued to prosecute defendants for trespass.

Until recently, the outcome of these trespass trials was unpredictable, with many being found guilty and some being found not guilty.  Under North Carolina law, those who are found guilty in district court (where a judge is both the judge and jury) can appeal their conviction and have a second trial in front of a jury of 12.

However, a recent United States Supreme Court case has changed the landscape and given the Moral Monday defendants a much greater chance of success.  That case is McCullen v. Coakley, in which the Supreme Court reiterated that the government cannot create “buffer zones” banning people from certain public spaces when the government has available to it other options that are less restrictive of speech.  In short, the Court held, “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”

Relying on this case, two judges have dismissed the charges against each of the defendants that have gone to trial in recent weeks.  One judge issued a written order citing McCullen and explaining that “the General Assembly Police failed to explore less restrictive means to accomplish the government interest in dealing with the disturbance.  As a result, the Defendants . . . , who were not creating or contributing to any disturbance . . . , were subject to an unconstitutional order to disperse . . . .  The State has not shown that less restrictive measures would have failed to achieve the government’s interests. . . .  The charge of trespass . . . therefore constitutes an unconstitutional burden upon [the Defendants’] right to peacefully assemble and speak.”

***

This analysis appears correct.  Free speech is a foundational principle of our system of government.  This “freedom” cannot be so thin that a single government official can decide to silence an entire group of political speakers in a public space based on his own determination that they are no longer welcome.

Moreover, the North Carolina Constitution explicitly states, “The people have a right to assemble together to . . . to instruct their representatives, and to apply to the General Assembly for redress of grievances[.]” N.C. Const. Art. I, Sec. 12.  Attempting to “instruct their representatives” and “apply to the General Assembly for redress of grievances” was the explicit purpose of the Moral Monday protests.

Prior to becoming “protesters,” many of those arrested unsuccessfully attempted to contact their representatives through other means—phone calls, emails, letters, etc.  After failing to be heard through these other channels, and with a legislature utilizing secret sessions to conduct serious business, these citizens went to the one place where they could be sure they would be heard—the General Assembly.

Their action is the very definition of engaged citizenship, and we cannot tolerate the police insulating our representatives from the voices and views of the citizens.  If we did, only those who our representatives wished to hear from would be heard, and this would lead to a complete breakdown of our representational system of democracy.

Finally, while these rulings should spell defeat for the State’s case against the Moral Monday protesters, it is important to remember that there are two sides to this debate.  One the one hand, the freedom of speech and assembly and the right to instruct representatives are paramount constitutional protections that ensure that the government is responsive to the will of all the people and acts “solely for the good of the whole.”  N.C. Const. Art. I, Sec. 2.  On the other hand, the legislature needs to be able to function without overwhelming disruption, and the police should not be vilified for their attempts to achieve this goal.

But nor should they be vindicated.  Instead, the police need to craft a means of protecting against disruption of the legislative sessions that allows the public to communicate directly with legislators at the General Assembly, before, during and after sessions.  This will be the next step of this process.

The government must craft regulations that are “narrowly tailored” to achieve the anti-disruption goal and give clear guidance to citizens about what they can and cannot do.  These regulations will be subject to legal challenges, and through that process, we will arrive at a comprise of these two important interests that is far more protective of free speech than the method used during the Moral Monday protests.

 

– Other Coverage:

 

Raleigh defense attorney Elliot Abrams discusses cell phone tracking by police

A WRAL Investigates report revealed that, for the last five years, Raleigh police have used a device called “Stingray” that captures cellphone data, allowing police to track a person’s movements in real time and monitor cellphone use.

While a spokesperson for the Raleigh Police Department said that the Department’s use of Stingray “complies with state and federal requirements,” he did not say whether police obtain warrants before deploying the device.

The report continues:

“Raleigh defense attorney Elliot Abrams said the Constitution requires police to obtain a warrant before delving into people’s private lives.”

“‘The question here is not whether they can use the technology. The question is whether they can use the technology without first going before a judge [to obtain a warrant],’ Abrams said.”

“Abrams said he expects [this] issue . . . will ultimately have to be decided by the Supreme Court.”

 

NY Times Editorial Board: “The federal government should repeal the ban on marijuana”

The Editorial Board of the New York Times has decided, “after a great deal of discussion among [its] members,” that the federal government should legalize marijuana, leaving the rest up to the states, noting that, “on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization.”

Here’s the full text of the editorial, which is entitled Repeal Prohibition, Again:

<<

It took 13 years for the United States to come to its senses and end Prohibition, 13 years in which people kept drinking, otherwise law-abiding citizens became criminals and crime syndicates arose and flourished. It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol.

The federal government should repeal the ban on marijuana.

We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

There is honest debate among scientists about the health effects of marijuana, but we believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco. Moderate use of marijuana does not appear to pose a risk for otherwise healthy adults. Claims that marijuana is a gateway to more dangerous drugs are as fanciful as the “Reefer Madness” images of murder, rape and suicide.

There are legitimate concerns about marijuana on the development of adolescent brains. For that reason, we advocate the prohibition of sales to people under 21.

Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.

In coming days, we will publish articles by members of the Editorial Board and supplementary material that will examine these questions. We invite readers to offer their ideas, and we will report back on their responses, pro and con.

We recognize that this Congress is as unlikely to take action on marijuana as it has been on other big issues. But it is long past time to repeal this version of Prohibition.

>>

 

DOJ Narrows Scope of False Statement Crime

One of the favorite crimes of federal prosecutors just got harder to prove.  Under 18 U.S.C. § 1001, it is a crime to willfully make a false statement to the federal government.

This crime has been used in the past to prosecute people who lie about seemingly incidental matters in interviews with federal law enforcement officers, even when they did not know doing so was a crime.  U.S. Supreme Court Justice Ruth Bader Ginsburg noted that the law gives government “extraordinary authority” to “manufacture crimes.”  (NLJ).

In briefs filed with the Supreme Court this year, the feds have apparently limited the scope of this law by requiring proof that the defendant made a false statement with knowledge that his conduct was unlawful.  (See this brief at the top of page 12).  This change applies to 18 U.S.C. § 1035 (false statement for health care benefits) as well.

Ultimately, this about-face means that not every false statement to a federal official or on a federal form is a crime.  Rather, these laws apply only to people who knew that they were committing a crime by lying.

Requiring the government to prove intentional law-breaking is an important traditional safeguard against criminalizing innocent conduct, and the Dept. of Justice should be commended for recognizing its importance.  The key now is to educate prosecutors, defense lawyers and judges about the change.

 

 

N.J. Attorney General’s Op-Ed: “Ex-offenders get time, now they need opportunity”

Paul Fishman, the U.S. Attorney for the District of New Jersey, published an op-ed (link) that highlights a New Jersey program to help people who are released from prison find housing and work.  Here are some excerpts:

<<

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don’t succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn’t enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney’s Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the “ReNew” program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program’s efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity….

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you….

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.
>>

Excerpts above are from Professor Berman’s Sentencing Law and Policy (link).

 

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