The Department of Justice (DoJ) announced just last week that it was beginning the process of substantially reducing contracts with privately run prisons with the goal of ultimately eliminating them entirely.
When asked about their decision, the DoJ stated that the downsides of private prisons drastically outweigh their benefits. Private prisons “do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”
The Problems of Private Prisons
How state law and federal law deals with private prisons varies. Some states have little to no legal restrictions on how they can operate, some states impose serious quality and cost evaluations on private prisons, and 19 states simply don’t allow private prisons whatsoever. The concept of a for-profit prison creates a number of concerning implications. The federal government, up until now, has had no restrictions on contracting private prisons—although they did include quality standards which ostensibly needed to be met. However, regardless of these attempts at quality control, private prisons continue to create serious issues.
Private prisons are generally paid per prisoner they keep. The contracts signed with private prisons usually require the government to sign an agreement to keep those prisons at least 90% full—some even have promises of 100% packed prisons. This creates a perverse motivation to send people to jail. For instance, in 2008, two judges were found to have accepted kickbacks from an executive of a private prison business in exchange for sending juveniles to private detention centers in situations where less extreme penalties would be more important.
Private prisons also have greater motivation to cut corners to save costs in a race to the bottom in order to maximize profits. While prisoners certainly don’t need luxurious conditions, there is a certain minimum level of security and amenities that are necessary both due to prisoners’ basic human rights and simply to avoid liability on the part of the government.
The government is ultimately responsible for the general wellbeing of prisoners. The poor conditions even led to a 2013 class action lawsuit against the Mississippi Department of Corrections alleging inhumane conditions in a special needs detention center for the mentally ill. The conditions alleged included rampant rapes and violence above and beyond what would be found in an average prison, starvation rations, total lack of medical care, complete lack of working plumbing or lighting in many areas of the prison, and extreme rat infestations. The lawsuit is ongoing, with the class action being given the full go-ahead in September of last year. The money damages resulting from lawsuits such as this will ultimately be paid by the taxpayers.
Other issues that stem from private prisons is that cost cutting works its way into their employment practices. Undercover reporters have even got jobs at private prisons with little to no training or background checks. Prisons are understaffed, guards are paid as little as $9/hour, and given four weeks of training total. Reports also reveal how underequipped guards often are, not even given pepper spray or nightsticks. All of this adds together to private prisons having nearly double the number of assaults as public prisons.
Private jails also have less transparency than their public counterparts. There are laws requiring public prisons to disclose certain types of information to the public—the most commonly used is the Freedom of Information Act (FOIA). In 2007, there was an attempt to apply similar requirements to private prisons called the Private Prison Information Act. The private prison industry fought the bill tooth and nail, ultimately leading to the bill fading into nothing with no vote being taken on it. No laws attempting to hold private prisons to these requirements have been introduced on a federal level since this bill failed. This lack of transparency leads to one of the biggest issues with private prisons—because they don’t have to collect information they don’t bother to. This makes it very hard to empirically compare the quality of public and private prisons.
External studies have gone both ways as to costs, some suggesting private prisons save money while others conclude the opposite. Despite the difficulty created by private prisons not keeping data, most studies agree that their operations are less safe and provide lower quality services than public prisons—thus the DoJ’s decision. As the DoJ said in regards to their decision, even if private prisons cost less—you get what you pay for.
The Future of Private Prisons
The DoJ’s changes only apply to federal prisons—which is a bit of a disappointment given that the vast majority of private prisons are state prisons. In fact, there are only 13 private prisons that this announcement actually applies to. To put this in perspective, the two biggest private prison companies—The Geo Group and Corrections Corporation of America—run 131 U.S. prisons between them. This is a little over half of the total number of private prisons in the U.S.
The DoJ’s announcement won’t be the end of private prisons and it won’t fix the many issues that already exist within the private prison system. Prison reform has been an ongoing legal issue for decades. Laws, such as the Prison Litigation Reform Act, have evolved in a way that prisoners generally have less ability to sue for violations of their rights.
The exact extent of rights prisoners should have is a conversation so complicated as to not fit within this article. However, the current state of the law does mean that if privatization of the prison system is going to end, it will likely take actions such as those taken by the DoJ. Private prisons have been speaking points for both presidential candidates this year, with Trump supporting expanding privatization of prisons and Clinton suggesting a more moderate approach. It is likely that the outcome of the election will be a turning point in the privatization of prisons.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
“We…conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.”
Roe v. Wade—we all know the historic case and as we come upon the 43rd anniversary of the famous case, the U.S. Supreme Court has handed down another important decision regarding abortion. The majority opinion declared that laws masked as health and safety regulations that are designed to actually close down abortion clinics are unequivocally unconstitutional.
The case came before the Court in Whole Woman’s Health v. Hellerstedt, stemming from a Texas law that placed heavy restrictions on the facilities that could perform abortions, which, as a result, severely limited the number of approved clinics within the state.
But, wait a minute.
Didn’t the Original Decision in Roe v. Wade Give States Power to Regulate Abortions?
Yes, it did. More specifically, it gave states the right to create regulations in order to insure procedures were performed with the maximum safety of the patient in mind. So, what’s the problem with the Texas law?
Recognizing that states have a legitimate interest in protecting the health and safety of the patient doesn’t give states free reign to make regulations that severely limit and restrict actually getting an abortion. Basically, states can’t make regulations that make getting an abortion nearly impossible to obtain. Masquerading them as health and safety regulations doesn’t make them constitutional. Any regulation on the topic has to further a legitimate state interest, i.e. proving the law actually contributes to health and safety.
Two Provisions, Both Unconstitutional
There were 2 provisions in particular that the Court found unconstitutional. The first required any physician performing or inducing an abortion to have active admitting privileges at a hospital not further than 30 miles from the facility on the day of the procedure. This provision decreased the number of facilities from 40 to 20, which doubled the number of women living more than 50 miles away from a clinic, increased those living more than 100 miles away by 150%, increased those living more than 150 miles away by 350%, and so on in increasing numbers. The second provision required abortion facilities to meet minimum standards for ambulatory surgical centers. Requiring facilities to meet these minimum standards for ambulatory surgical centers would cost facilities anywhere from $1.5 million to $3 million—per clinic.
We know from a 1992 case, Planned Parenthood of Southeastern Pa. v. Casey, that an undue burden on a woman’s right to decide to have an abortion exists if a law consequently places a “substantial obstacle” in the path to obtain an abortion. This rule applies not only when the purpose of legislation is to hinder abortions, but also if the effect of the legislation places substantial obstacles in the way.
Without getting into the nitty gritty of Justice Breyer’s majority decision, the provisions were unnecessary because they didn’t offer any additional health or safety benefits that didn’t already exist and, thus, only limited the number of clinics that women would have access to.
Decision Will Undoubtedly Affect Other States
Alabama, Mississippi, and Wisconsin all had similar laws on the books. At least 26 other states have at least one of the provisions that was struck down in Texas’ legislation. Ten of those states require admitting privileges, while the others require ambulatory surgical center standards. Currently, the laws in Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin related to the admitting privileges are being challenged. Three of those have come to a dead end with the Supreme Court’s decision.
While the Court’s decision is a big one for pro-choice activists, several conservative states continue to pass legislation that further restricts abortions. Nine states have introduced legislation that would ban nearly all abortions. Four states have banned the most common form of second-trimester abortion, while 17 states ban abortions after 20 weeks. Indiana, one of the nation’s strictest states on the topic, recently passed legislation requiring the woman to listen to the heartbeat immediately prior to having a procedure. What health and safety interest does that protect?
Although a landmark decision that will force states to change their conflicting laws, there’s no doubt conservative states will continue to pass legislation and I’m sure this won’t be the last time the abortion issue is challenged.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
The scene was described by local law enforcement as “gruesome.” Four children, ages 17, 16, 9, and 3 years old, were left at home alone. The 16-year-old boy had allergy stabbed his two younger siblings, fatally killing the youngest one.
These are just a few of the descriptions used in the recent news of the arrest of a 16-year-old Arizona boy who is facing second-degree murder, aggravated assault and endangerment charges for the death of his 3-year-old brother and injury of his 9-year-old sister.
Deputies were called to the scene after receiving 911 calls from neighbors who witnessed the oldest of 4 siblings carrying 2 of his younger siblings in his arms to safety after being attacked by their brother. One sibling, a 9-year-old girl, suffered non-life threatening injuries to her upper torso, while the other 2 were unharmed. The 3-year-old was already gone. Not many details of the incident have been released and there’s no indication of what may have triggered the attack. The suspect didn’t have a history of mental illness, so it will be interesting to see what comes out during the investigation as to a possible motive.
With the suspect being such a young age, yet, at the same time, so close to the age of 18, it brings forth the issue of whether to charge him as a juvenile or an adult. Local authorities expressed confidence the 16-year old would be charged as an adult, but the State has yet to make an official decision.
How Does a Juvenile Even Get Charged as an Adult?
Society sees juveniles as children who are not fully developed and that’s why juvenile courts were created. Anyone under the age of 18 gets different treatment for their crimes. Why does this matter? Well, because juvenile adjudication is far less consequential than adult court. The theory is that we shouldn’t punish those that can’t fully understand the meaning of their actions. But, what about those instances when the crime is so harrowing that it seems too lenient for a child not to be charged as an adult? At what point do children need to take full responsibility for their crimes?
A total of 45 states allow a juvenile’s charges to be transferred from juvenile to adult court. How that happens varies by state, but there are multiple transfer mechanisms. Whether that be from an automatic transfer (for certain crimes) from juvenile to adult court, direct and presumptive waiver laws where a hearing must be held, prosecutorial discretion, or statutory exclusion laws, each state has at least one form or the other.
Arizona does have statutes in place that allow a prosecuting attorney to file charges directly in adult court for higher-offense felonies. A child between the ages of 14-17 can be charged as an adult for first- and second-degree murder. Any other violent felony would also count.
Once a State decides to charge a juvenile as an adult, at least in Arizona, the juvenile has the opportunity to file a motion with the court to try to transfer their case back in juvenile jurisdiction, but the burden’s on them to prove there’s enough evidence that public safety isn’t at threat and that rehabilitation is better served by a transfer. There are a number of factors Arizona courts will consider in this instance, the seriousness of the offense being one of them, but because of the way this crime is being described, this seems pretty doubtful in this case.
What Does This Mean for the Suspect?
If charged and convicted as an adult, the 16-year-old will face the same penalties any adult would, rather than possible juvenile sentences. Anyone under the age of 18 cannot receive the death penalty and, instead, the court will decide between a life sentence or a natural life sentence. Life sentences are eligible for parole after 25 years, whereas natural life sentences mean a defendant would be sentenced to prison until the day they die with no possibility of parole.
At this point, the 16-year-old suspect is facing second-degree murder charges (which must mean local authorities don’t believe there was any premeditation), so this isn’t an issue unless they find out during the case there was premeditation. That conviction would hold a minimum of a 10-year sentence, a presumptive 16-year sentence, and a maximum of 22 years.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Rapper Kanye West and his wife, reality TV star Kim Kardashian West, could face criminal charges for covertly recording and then posting a conversation West had with pop star Taylor Swift on social media. But which laws did the superstar couple allegedly violate when they recorded Swift and then told the world about it? And what sort of penalties could they face?
The Beginnings of a Scandal
On July 17th, Kardashian West leaked a series of video Snapchats showing a phone conversation between her husband and Swift. In the video, West talks about a line he planned to use in his song “Famous,” in which he raps that he and Swift “might still have sex.” Swift appears to consent to the line, deeming it “like a compliment, kind of.”
However, Swift changed her tune upon the release of the footage. Seemingly outraged, she denied consenting to the line mentioning her in “Famous” and also claimed that she did not know that the conversation was being recorded. Actually, Swift was already aware of the existence of the recording months before its public release. According to the gossip site TMZ, Swift’s legal team sent a letter to West’s lawyer in February, demanding that the recording be destroyed. The letter warned that the making of the secret recording was a felony offense.
Did Kanye West and Kim Kardashian West Actually Break Any Laws?
Many of the potential legal issues raised by this situation are dependent on unknown or disputed facts. West was allegedly filmed making the call to Swift while at a recording studio in the Los Angeles area. If this is true, West could be in big trouble—California is a “two-party consent” state, meaning that all parties to a phone call must consent to being recorded. Even if Swift was not in California when West called her, this does not necessarily let the rapper off the hook. California, unlike in some other states where “two-party consent” is needed, does not give West any leeway if Swift herself wasn’t in California at the time of the call.
In contrast, federal law stipulates that only one party has to consent to make recording a phone call legal. According to privacy law expert Ari Ezra Waldman, when the parties to a secretly recorded call are in different states, it is unclear whether federal or state law will apply.
(Interestingly, the future of “two-party consent” rules is not guaranteed. In West’s home state of Illinois, the state’s Supreme Court ruled in 2014 that making recording conversations illegal was an infringement on the First Amendment. It is possible that a similar examination of the law could someday happen in California.)
Putting federal law aside, if it is found that Swift did not consent to the recording made of her under a “two-party consent” law, then both West and Kardashian West could be looking at serious consequences. Besides the penalties West could face in California criminal court (including up to a year in prison), Swift could bring civil action against him with a lawsuit seeking damages. A California court could award Swift substantial damages including punitive damages, as is also the case in other areas of the law where the defendant’s actions are deemed harmful.
Additionally, Kardashian West could face damages or fines for the publication of the recording. According to legal experts, publicizing Swift’s conversation on social media is an invasion of her privacy, as she has a reasonable expectation of privacy on a private phone call.
Did Swift Actually Expect Her Call to Be Private?
If Swift does decide to bring legal action against West and Kardashian West, the court must determine whether there was actually an expectation of privacy in the recorded conversation.
Legally, even if Swift did not explicitly consent to a recording, if a “reasonable person” would have assumed others were listening in on their conversation, Swift may not have a claim against West. After all, California’s two-party consent law only applies to “confidential communication.”
Gossip site TMZ, upon hearing the entire recording, concluded that Swift was aware that multiple people were listening in on her conversation with West. Swift, however, maintains that she did not know she was on speakerphone at the time. It seems that, for now at least, the feud between three of pop culture’s most prominent figures is far from over.
Authored by Andrea Babinec, LegalMatch Legal Writer
Everyone loves a murder mystery, but evidently they love them even more when they’re based off of true stories.
The Serial podcast, the most popular podcast of all time, was based on a 15-year-old murder mystery. The podcast revisits the investigation surrounding the 1999 strangling death of a Baltimore high-school student, Hae Min Lee. Her former 17-year-old boyfriend, Adnan Syed, was convicted of her murder and is now serving a life sentence for the crime. “Serial” investigates the trial of Syed.
Producers of Serial do a good job of casting doubt that Syed in fact killed Lee. Many Serial listeners finish the twelve episodes convinced that Syed didn’t kill Lee, or at least doubting his guilt.
Adnan Syed was recently granted a new trial.
How was Adnan Syed Convicted?
In order to be convicted of any crime, including murder, the prosecution must convince the jury to the point that they have no reasonable doubts in their minds that the defendant is guilty of the crime for which he or she is charged. It is sometimes referred to as a moral certainty. It is the toughest standard because of the serious ramifications of conviction, namely prison time. In states that allow capital punishment, convicted murderers can be sentenced to the death penalty.
Serial reveals that at the time, the jurors believed beyond a reasonable doubt that Syed was guilty of murdering Lee.
Why was Adnan Syed Granted a New Trial?
Make no mistake about it – Adnan Syed would have never gotten a new trial were it not for the notoriety of his case due to the Serial podcast. As a result, bloggers went into meticulous detail about how Syed could not have possibly committed the crime, people called for the release of Syed, and others blamed Syed’s defense attorney for his conviction.
In any jury trial, each side has a specific time to present their case. The state or prosecution presents their side of the story first. They present their evidence to the jury by way of any physical evidence (such as murder weapons), eyewitness and expert testimony, and anything else they think will help their case. The defense has the opportunity cross-examine all witnesses presented by the prosecution. After the prosecution rests its case, it is the defense’s turn to defend against the allegations by presenting their own evidence.
Before the evidence is presented to the jury, the prosecution comes up with a “legal theory” of the case. This means that they develop their rendition of the chain of events and what exactly transpired during the commission of the crime. The thing is they don’t always care if they “get it right.” Instead, they use what evidence they have to shape their legal theory.
In Syed’s case, his conviction primarily hinged on two pieces of evidence: (1) testimony from a friend named Jay who claims Syed killed Lee and they both buried the body; and (2) phone records which placed Syed near the location of the body. Syed himself couldn’t remember where he was during the time the prosecution claims he murdered Lee. In addition, while jurors aren’t supposed to hold it against a defendant if he chooses not to testify on his own behalf, it is simply human nature to wonder why a defendant wouldn’t defend himself unless he had something to hide. Syed did not testify on his own behalf. All of these things contributed to his conviction.
But if you’ve listened to the podcast, you know that Jay’s testimony is fraught with doubt, his testimony having changed time and time again. Moreover, a potentially exculpatory witness, Asian McClain, claimed to have been with Syed during the time the prosecution accuses him of murdering Lee. Syed’s attorney knew about the witness but failed to ever interview her. However, this evidence did not lead to Syed’s ruling of a new trial.
Instead, the new trial was granted because the Baltimore appeals judge found Syed’s defense attorney’s representation “fell below the standard of reasonable professional judgment” in handling his case. Why? It was recently discovered that the cell phone records placing Syed near Lee’s body contained a disclaimer stating the records could not be relied upon to demonstrate the owner’s location. Syed’s defense attorney knew of the disclaimer but never cross-examined the prosecution’s key cell phone witness. The cell phone records were one of the key pieces of evidence the prosecution relied upon to secure Syed’s conviction.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law