LegalMatch: Criminal Law

Is It Legal to Have Sex with Your Spouse Without Their Consent?

Of course not, right? Or maybe it’s not as simple as that. Donald Trump’s attorney, Michael Cohen, has previously made claims, albeit he’s since apologized for said statements, that by the very definition of rape, one cannot rape their spouse. Not exactly something you expect to hear, especially coming from one of a presidential candidate’s top advisors.

Cohen’s statements came after allegations resurfaced from Trump’s ex-wife, Ivana Trump, who once described an incident between her and Trump as rape. The allegations were made during the couple’s divorce proceedings back in the early 90’s, but with all the media attention surrounding Trump’s controversial comments about women and sexual assault and his bid for presidential candidacy, these allegations came to light again. It was then that Cohen publicly responded to these claims by saying,

“You cannot rape your spouse. And there’s very clear case law.”

Is There Really Case Law to Back Up That Claim?

Historically, yes, but the laws have since changed, making Cohen’s statement false. English common law long held that it was legally impossible for a man to rape his wife.  Some states even held specific statutory exemptions in place just for spouses. 

It was the idea that marriage constituted permanent consent and it wasn’t until the late 70’s that case law began to suggest a different trend. It was in 1979 when the first conviction for spousal rape was handed down and by 1983, 17 states had removed their laws exempting spouses from the crime of rape. 

There’s Still Some Holes in the Law

Fortunately, in 1993, North Carolina became the last state to withdraw their rape exemption for married couples. Even though marital rape is now illegal in all 50 states, unfortunately there are still some holes in the laws that provide room for exceptions (exceptions, not exemptions).

For example, Connecticut law states only husbands or wives raped “by the use of force” can bring charges against their spouse. Idaho, Maryland, Minnesota, Mississippi, Nevada, Ohio, Oklahoma, and South Carolina all follow suit with similar laws. Shockingly, Virginia allows husbands who rape their wives to escape prosecution if they agree to undergo therapy.

The federal government made rape illegal in 1986, but that only applied to cases that took place on publicly-owned land. Really?  Rape is any sexual intercourse that’s nonconsensual, so why exactly would the fact of marriage, or taking place on publicly-owned land for that matter, make the idea of consent any different? 

Despite That It’s Illegal, It Can Be Harder to Prove and Bias Still Exists

Proving sexual assault is difficult enough, because it’s typically based on circumstantial evidence. When you add in the fact that a couple is married, proving sexual assault can become even more difficult because there’s a bias that some level of consent exists between spouses.  That seems to be the obvious reason why some states require rape between spouses to be proved by a use of force. 

Forcing someone to have sex is by its very nature, use of force, regardless of whether that “force” is considered physical force that could cause harm under the meaning of the law. This seems like a silly distinction to put into law in the first place.  Even so, there are still states that treat sexual assault cases differently for married couples.  For example, some states require shorter reporting time periods for spousal assault, while others require the victims to prove the spouse used more force than they would have used had the couple not been married.  Say what?

Even jurors still struggle with the idea of convicting a spouse for marital rape. NBC Dateline aired an interview with Lisa Yumi Mitchell, a juror in a spousal rape case, where Mitchell professed the struggle she had with convicting a spouse for rape because she assumes sex is somewhat regular in a marriage. Mitchell, like many others, held a presumptive bias of consent. 

It seems our society has a long way to go in this regard, but even with the prejudice surrounding marital rape and the difficulties in proving it, Michael Cohen’s statements that you can’t rape a spouse are inherently false. Consent is consent and when it isn’t there, the sex is always illegal.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

German Residents Stand Trial for Murder by Exorcism--Are Religious Beliefs a Viable Defense?

Can exorcism be used as a viable defense to murder? Five members of a Korean family are being charged with murder over the death of a relative during an exorcism ritual. Prosecutors of the German court have stated the family members wanted to expel a “demon” they believed to have possessed their relative.

According to prosecutors, all the accused took part in suffocating the woman. The woman died of asphyxiation as a result of “massive chest compression and violence to her neck.” It’s believed the family members took turns holding and pinning the victim to the ground and kneeing her in the chest in order to “cast out the devils.” They are also alleged to have stuffed a towel in her mouth multiple times in order to stop her from screaming.  

The family members claimed that sometime last year, the victim began hitting herself, talking to herself, and became physically aggressive towards her family for unknown reasons, which was what ultimately led to their decision to perform an exorcism. According to German media, the family members being charged with murder are all believed to practice a form of Christianity with shamanist influences.

Cases of Exorcism Aren’t Unheard of in The U.S.

Similar cases have popped up, although infrequently, around the U.S. The first known claim of demonic possession to be used as a method denial of criminal responsibility came in 1981 when Arne Cheyenne Johnson was convicted for first-degree manslaughter for killing his landlord. Johnson killed his landlord during a heated conversation, but claimed that the landlord was possessed and tried to use that as a defense. The judge didn’t buy it, though, and ruled that such a defense could never be proven and, therefore, was not a suitable defense in a court of law.

In 2014, a Maryland mother was charged with killing her two children during an attempted exorcism. Zakieya Avery stabbed both of her children to death (and wounded two other children while attempting the exorcism) because she believed the children were possessed by demons. Although it’s unclear what Avery’s religious beliefs were, Avery never had to stand trial because she ultimately plead guilty to the crimes. A judge found her not criminally responsible and sentenced Avery to a psychiatric hospital rather than prison time.

Insanity is widely accepted as a viable defense and that seems to be the likely route that most defendant’s would take, but I imagine it will be nearly impossible to prove that all five family members in the German trial are legally insane. When it comes down to it, the practice of exorcisms, although often not formally recognized by churches, have deep religious roots—so it boils down to whether or not a person can use religion as a defense to a crime.

Government Leaves Small Window for Religion in Laws

There are some states that leave some wiggle room when it comes to using religion as a defense to certain crimes. You might be thinking there’s supposed to be separation of church and state and, of course, there is, but it can be more convoluted than that. The First Amendment leaves room for the free exercise of religion, so it makes sense that the government would allow religion to be used in certain instances.

For example, Oregon law allows a religious-based defense when the crime is possession of peytote, while Illinois allows an exception to serving alcohol to minors during religious ceremonies. The Supreme Court has held that convictions stemming from charges against an Amish family for not sending their children to school in violation of a state law were a violation of the free exercise clause of the First Amendment.

Bans On Sharia Law Evidence Religion Can’t Be Taken Too Far in Our Justice System

Despite these types of exceptions, there’s a history of keeping religion out of our justice system and that’s been especially evident in recent years.

In 2011, a New Jersey judge refused to grant a woman a protective order from her husband because he defended his actions by claiming that rape and sexual abuse aligned with his Muslim beliefs. The case was ultimately overturned by a higher court, but it incited an outrage within the U.S. which led to legislation across the country that attempted to specifically ban Sharia law.

Although higher courts have ruled banning one specific type of belief, i.e. Sharia, isn’t constitutional, it is legal to prohibit the use of any type of religion as a legal cop-out.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Would You Leave Your 2-Year-Old Kid Home Alone While You Play Pokémon Go?

When I think of a kid home alone, I picture Macaulay Culkin and his iconic expression gasping in disbelief that his parents left him home alone. Although his famous character, Kevin, was only a mere 8 years old, that seems a lifetime older than the 2-year-old Arizona boy that was left home alone by his parents. 

Parents Brent and Brianne Daley are facing charges of neglect and endangerment for leaving their 2-year-old child home alone. What were they doing, you ask?  Well, they wanted to play Pokémon Go. 

We’ve heard of players of the now famous game getting hurt, but this is a first. A concerned neighbor called the police and when deputies arrived, they found the toddler bawling outside an unlocked house in the 96-degree heat trying to get inside the house.  Local deputies found the child to be “red-faced, sweaty and dirty,” by the time they arrived and it took the parents nearly an hour to return home once they were called by police and informed about their child.  The young child’s father, allegedly replied, “Whatever,” when called and told the boy was found abandoned. 

Certainly a 2-year-old should never be left home alone under any circumstances, but at what age is it appropriate to leave your child home alone?

It Really Comes Down to a Simple Judgment Call

As your child gets older, it’s a decision all parents have to face at some point and the law gives parents a lot of flexibility in making that decision.

Many states offer guidelines, but only three states have specific laws on the books that have a minimum age requirement for leaving a child home alone. Illinois, for example, requires the child to be at least 14 years old, while Maryland has a mere 8-year-old minimum.  Oregon, the third of the states, requires a child to be 10, while Kansas has a guideline of only 6. 

However, even with these minimum requirements, many states will charge a parent with failing to provide adequate supervision for the child, neglect, and/or abandonment.  Even with those state procedures, many don’t have any legal standards set defining what adequate supervision even is.

Age is one of the most common factor considered, but according to the Children’s Welfare Information Gateway, a parent should never consider age alone as a determining factor. Emotional well-being and maturity of the child seem to be the most important factors, but many states will often consider things like a child’s physical condition, the home environment, or how long the parent was absent.  Even at a significantly older age, a child may not be emotionally stable enough to deal with being left home alone. 

A parent should consider whether a child can obey rules, make good decisions, how a child responds to unfamiliar or stressful situations, how long the child will be alone, whether a child is able to fix a meal for themselves, whether the home is safe and free from hazards, and whether the surrounding areas and neighborhood are safe. This is certainly not an end all be all list. It’s going to depend on the situation of each child and, with an absence of law, it really comes down to a judgment call for many parents.

Legal Consequences Can Be Hefty

While parents are given wide latitude to make these decisions on their own, there’s definitely a line that can be crossed and the consequences aren’t anything to shake off. The Daleys are being charged with neglect and child endangerment, but possible jail time is just the beginning of consequences a parent could possibly face for leaving their child home alone. Have you ever heard of a little thing called CPS? 

Child Protective Services is typically always notified to begin an investigation into family life when someone reports a child was inappropriately left at home. This can be a lengthy and grueling process that can end in the state taking over custody of children. 

Even if a child isn’t directly taken away from their parents, courts can intervene in simple everyday decisions until the parent is deemed fit to do it on their own. Some courts may even require rehabilitative services to both children and parents.  Often times, it can take months or even a year or more to regain full decision-making power in regards to your children.   

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Criminal Defendant’s 6th Amendment Rights in Jeopardy as Public Defender’s Offices Continue to be Underfunded

“In all criminal prosecutions, the accused shall enjoy…the assistance of counsel for his defense.”

The 6^th Amendment. The Constitution is pretty clear when it comes to a criminal defendant’s right to an attorney. What it isn’t clear about, is who’s responsible for funding these public defenders. Case law is of no help either.  Is it the responsibility of the state?  The federal government?  Or is it a civic duty of every licensed attorney to offer up free services?

Recent years have evidenced a growing problem for public defenders created by legislative budget cuts and, as a result, offices are being forced to cut the already low number of public defense attorneys from their employment roster. As a result of these decreases in available funds to hire adequately trained criminal defense attorneys, defendants’ rights to an attorney are being jeopardized.

Public Defense Attorneys Often Get Blamed, Although It’s Not Really Their Fault

Public defenders often get a bad rap for not being effective attorneys, but when you consider the number of clients in many of their caseloads, it’s easy to see why many don’t have the time to meet with their clients until the day of trial. In 2009, the average caseload for Florida public defenders was 500 felonies and more than 2,200 misdemeanors.

According to the American Bar Association and the National Advisory Commission on Criminal Justice Standards, public defenders should take on no more than 150 felony cases per year or no more than 400 misdemeanor cases per year. The problem has only grown worse. More recently, 22 public defenders were left to handle more than 18,000 cases after budget shortfalls in Caddo Parish, LA. Anyone can easily do the math, but that’s roughly 818 cases per attorney.  It’s simply too much for any one attorney to handle.  

High Caseloads and Few Attorneys Means Offices Are Forced to Turn to Alternative Means

Caddo Parish’s lack of statewide funding forced their public defender’s office to cut 12 attorneys from their already diminished staff. The office was forced to fill the void and started assigning cases to any lawyer within the city whether they had any criminal experience or not.  This means insurance attorneys, real estate attorneys, tax attorneys, you name it; if they have a law license, their name is on the list.

Missouri’s public-defender system is struggling just as much. The Director of the Public Defender System went so far as to order the state’s Governor to serve as public defender due to the lack of funding to hire enough defense attorneys to handle their caseload.  Missouri and Louisiana aren’t alone, as it’s becoming a national problem.

Budget Cuts Are a Major Source of the Problem, But A Standard Needs to Be Set

Public defense budgets often get overlooked because most of the money goes to the other side of the criminal justice system—prosecution, police, and corrections. It makes sense that, with a tough on crime attitude, legislators want to put their money where their mouth is, but it can’t be at the expense of defense counsel because it’s just as important.  The issue really stems from a lack of guidance on where the money should come from.   

The landmark Gideon v. Wainwright decision held that the 6^th Amendment applied to the states via the Due Process Clause of the 14^th Amendment and, thus, required state courts to provide lawyers for all indigent criminals unable to hire their own counsel.  The decision didn’t address how this right was to be implemented though.  Did the decision effectively require states to solely bear the cost of hiring public defenders? 

Some feel this isn’t a state’s burden to bear. If the federal government is responsible for protecting our constitutional rights, should that include the responsibility to ensure funding is available?  If funding is not guaranteed at the state or federal level, how do we ensure a defendant’s due process rights to effective counsel are upheld? 

The common argument in favor of using federal tax dollars to hire well-trained public defenders is that ineffective assistance of counsel is an easy basis to overturn a verdict and, thus, risks putting guilty defendants back on the streets. That same argument can apply to the states, as well. But, it shouldn’t just be about the risk of putting guilty defendants back on the street—it’s a constitutional right and one that’s imbedded in our history and, regardless of who’s responsible, the underfunding issue is an area that needs addressed. 

What good does it do to have counsel if they’re not effective? No person afforded the capability of hiring their own lawyer would choose a real estate attorney to defend them in their capital murder case.  Would you hire a dermatologist to remove your brain tumor?  They both went to medical school and they’re both doctors, so why not? 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

The Underreported Problem of Elder Abuse

A caregiver in Phoenix, Arizona, is accused of using a telephone cord to bind her eighty-nine year old victim. According to police reports, the victim was tied to a chair with a phone cord and slapped on her head and face by her caregiver for nearly four hours. The victim was found several hours after the alleged abuse.

Hundreds of thousands of seniors are abused, neglected and exploited every year. The cases that are reported are only a fraction of what’s happening as elder abuse is an often unreported crime. This happens for a myriad of reasons, including the mental state of the victim (people simply do not believe the victim when he or she tells others of the abuse) or availability of help (the abuser may be the only person with whom the victim communicates). Most of the time, the perpetrators are people the senior trusts most: caregivers, friends, or even relatives.

What is Elder Abuse?

In general, elder abuse is a term that refers to any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or serious risk of harm to a vulnerable adult. Based on the prevalence of elder abuse, all fifty states have passed some form of elder abuse prevention laws. While each state law is different, abuse has seven categories:

1. physical abuse, inflicting pain on a senior;
2. sexual abuse, non-consensual sexual contact;
3. neglect, failure to provide an elder with food, shelter, health care, or protection;
4. exploitation, illegal taking or concealment of funds, property, or assets;
5. emotional abuse, inflicting mental pain or anguish; abandonment, desertion of an elder;
6. self-neglect, failure of person to form self-care tasks that threatens the senior’s health or safety.

What are the Legal Repercussions of Elder Abuse?

All states and the District of Columbia have specific laws that criminalize the abuse, neglect and exploitation of elders. Nevertheless, there is considerable variability in the state statutes. Some states define elder abuse as particular conduct against a person over a specific age, while other states focus on the victim’s physical or cognitive vulnerability without regard to age.

At least two states, Massachusetts and North Carolina, have laws which subject anyone over the age of 18 who has sufficient means, but neglects or refuses to support a parent who is unable to support him or herself due to age or disability, to a fine or imprisonment.

If elder abuse is suspected, the first necessary step is reporting the abuse. The vast majority of states require certain classes of professionals (medical professionals, health care providers, mental health counselors, etc.) to report suspected abuse and neglect. Some states have 24 hour hotlines to make reporting easier.

Next, both social service and law enforcement agencies are instructed to investigate reports, intervene, or remove the senior victim from the abusive environment. Authorities are granted special powers to revoke or deny operating permits if they find abuse in nursing home and care facilities. It is also possible that provisions protecting employees who report such abuse are protected from retaliation by their employers.

A perpetrator of elder abuse can be prosecuted for:

• Neglect
• robbery
• assault
• battery
• medical malpractice fraud
• murder

depending on the situation. Some states increase penalties when the victim is elderly. For instance, an offender in Nevada who commits a crime against a person who is over sixty is subject to a prison term twice as long as that normally allowed for the same offense.

Because of the age of the senior, civil and criminal cases involving an older victim is given priority in states such as California, Colorado, Nevada and New York. Many states also make other accommodations, such as allowing depositions to be videotaped in case the elderly victim or witness cannot attend trial.

Most elder abuse offenses are felony level offenses. Elder abuse charges based on omissions or negligent conduct typically fall into the lower end of felony charges with a shorter prison sentence ranging from one to three years. Elder abuse charges based on intentional or knowing conduct receive longer prison sentences, ranging from two to twenty years.

Preventing Elder Abuse

If you suspect someone you love is being abused, be vigilant. If your loved one resides in a nursing home, make unexpected visits and make note of any ailments you notice. Contact an attorney if you discover signs of elder abuse.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Ninth Circuit Says No to New Guns for MMJ Card Holders

In the current battle between medical marijuana users and the federal government over the use of marijuana, it appears that the Feds have managed to score a recent victory. This victory was granted by the United States Court of Appeals for the Ninth Circuit, which is known as the most liberal of the federal appellate courts.

The Ninth Circuit recently held that a gun store in Nevada did not violate a medical marijuana cardholder’s Second Amendment right by refusing to sell the person a gun on the grounds that she is a user of a controlled substance. Even though the state of Nevada has permitted marijuana to be used for medicinal purposes since 2000, marijuana is still a Schedule I drug under the Controlled Substances Act. This means that it is illegal to grow, sell, buy, or use marijuana, even as a medicine, under federal law.

Firearm merchants are prohibited from selling guns to users of controlled substances, including users of marijuana, by the Gun Control Act. The Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a regulation barring anyone who has a medical marijuana card from purchasing a firearm based on the assumption that the cardholder is most likely a medical marijuana user.

When S. Rowena Wilson went to go buy a firearm a week after the regulation was issued, the gun store informed her that she was prohibited from buying a gun because she was a medical marijuana card holder. Ms. Wilson sued the ATF, claiming that the regulation violated her Second Amendment right to possess a firearm.

Rowena Wilson’s lawsuit against the ATF is based on the notion that people should not be barred from buying firearms just based on their possession of a medical marijuana card, without actual proven use of medical marijuana. Unlike most medical marijuana cardholders, Ms. Wilson claims that she does not actually use medical marijuana and, thus, is not a user of marijuana as a controlled substance. Thus, the assumption that the regulation is based on is not one that is necessarily true about Ms. Wilson and should not have prevented her from obtaining a firearm.

However, the Ninth Circuit found that the regulation did not violate Ms. Wilson’s 2^nd Amendment right to possess a gun severely enough so as to require the regulation to be invalidated. The court stated that Ms. Wilson could have easily purchased firearms prior to acquiring her medical marijuana card. The regulation does not prohibit possessors of medical marijuana cards from owning or using guns, meaning that they are not violating the regulation by holding onto firearms that they acquired before getting medical marijuana cards. Thus, anyone who possessed a medical marijuana card but did not actually use medical marijuana, such as Ms. Wilson, could still use a firearm to defend themselves in the manner guaranteed by the Second Amendment.

Although Ms. Wilson intends to appeal the 9^th Circuit’s decision, for now the court’s ruling broadens the prohibition on who can actually purchase a firearm under the Gun Control Act. Now, people who are merely assumed to be using drugs by simply having a medical marijuana card are also unable to buy a gun, even if they have never actually used or have any intention of using marijuana. Unless the decision is overturned, medical marijuana card possessors residing in California, Nevada, Alaska, Hawaii, Montana, Washington, Oregon, and Arizona are now prohibited by law from buying any new firearms.

If you have questions about the regulation or are concerned that the court ruling may negatively impact you, contact a criminal defense lawyer.

Authored by Kristen Johnson, LegalMatch Legal Writer

Lying U.S. Swimmers Get Off Easy in Rio?

With the 2016 Summer Olympics just wrapped up, we can look back at these Olympics and all the medals we won and feel very proud of our athletes. Ultimately we walked away from Rio with 121 medals, the most of any country. But there is one single event that has marred the Olympics and has brought our nation great shame, and it had nothing to do with the competition.

Four Olympians were out until approximately 6 a.m. when they stumbled into a gas station drunk to use their restroom. The four men were all members of the U.S. Swimming Olympic team – Jimmy Feigen, Gunnar Bentz, Jack Conger, and the most famous, Ryan Lochte. According to Lochte, who gave TV interviews after the alleged incident, the four men were robbed and held at gunpoint by men dressed as police.

In reality, the men tried to break into a bathroom at the gas station. When they weren’t allowed access, one or more of the men vandalized the facility and caused damage. An armed security guard at the station demanded that the swimmers pay for the damage. The security guard did pull his gun when one of the athletes appeared “disturbed somehow.” The swimmers paid $20 dollars for the damage they caused before leaving.

Lochte fled Rio before a warrant was issued for his arrest, but the other three were not so lucky. Jack Conger and Gunnar Bentz were pulled from their plane for interrogation, but were later allowed to leave Brazil. The reason? The two swimmers had not lied to police about the alleged robbery. Further, they never spoke to the press to corroborate Lochte’s bogus story.

Jimmy Feigen, however, was ordered by a Brazilian judge to pay a Brazilian charity $10,800 to avoid charges for making false claims about the armed robbery. Brazilian law permits charitable donations to avoid criminal prosecution for minor offenses. Ryan Lochte has recently been charged with filing a false report, but has yet to face any repercussions.

Given Feigen and Lochte’s also allegedly false statements made regarding the incident, did they get off too easily?

White Male Privilege?

It pays to be a white male athlete from an elite swimming program if you commit a crime. Nothing exemplifies this more than the case of Brock Turner, who was convicted of raping an unconscious woman behind a dumpster at a party. The maximum sentence for his crime is 14 years in prison. He was only sentenced to a mere six months.

It is unclear what the sentence is for filing a false report in Brazil, but Lochte will likely be ordered by a Brazilian judge to pay tens of thousands of dollars to a Brazilian charity to avoid criminal prosecution. No such “get out of jail free” equivalent exists in the U.S. judicial system, although some argue that being a white male is the equivalent.

Making false statements to federal agencies is a federal crime. One cannot knowingly and willfully making false or fraudulent statements or conceal information with the intent to defraud. If a false statement is made to a police officer, a person could also be charged with obstruction of justice. Filing a false statement can result in misdemeanor or felony charges depending on the state. Misdemeanors result in jail time of less than one year and may involve small fines, whereas felony charges can result in imprisonment for over one year and can involve heavier monetary fines.

Here, Lochte and Feigen were allegedly intoxicated and may have been drunk while making the false statements. Believe it or not, this can be a defense to a false statement because it negates the intent element of making false statements.

Because neither Lochte nor Feigen will be prosecuted in the United States, it’s unknown what, if any, repercussions they would have faced stateside. If we look at judicial history, the judge who heard Brock Turner’s case gave him such a light sentence because Turner, age 19 at the time of the crime, had no criminal history. The judge further brushed off the incident as an act of “youthful indiscretion.” Lochte, age 32, and Feigen, age 26, cannot argue the same defense. Nevertheless, neither appears to have a criminal record and they were both members of the most elite swimming organization. That may be enough for the American equivalent of a “get out of jail free” card.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Will Claims of Superpowers Get Florida Teen Out of a Double Murder Conviction?

Double homicide, face biting, and superpowers. What more could you ask for in a story?  A Florida teen has been arrested and charged with the fatal stabbing of a couple outside their home.  The 19-year-old boy was found by local police biting the dead’s man’s face. Yes, you read that correctly. According to authorities, Austin Harrouff attacked John Stevens and Michelle Mishcon randomly as they sat in their garage, stabbing them multiple times.

Harrouff’s mother, Mina, had called police a few hours after her son stormed out of a restaurant after a fight with his father. Mina told police her son had been acting strangely for about a week, saying he had superpowers and was “here to protect people.” Unbeknownst to Mina, her son had already been arrested 45 minutes earlier for the murders. It took several officers and a dog to subdue Harrouff, who shook off electric shocks from a stun gun.  Sheriff William Snyder reported Harrouff was “abnormally strong,” incoherent, and making “animal-like noises.”

According to his mother, Harrouff doesn’t have a history of mental illness and wasn’t a heavy drug user. Initial hospital tests run on Harrouff came back negative for a number of drugs, including methamphetamine, but the results for substances known to cause excited delirium are still pending.

Such a strange crime leave you wondering what kind of defense strategy, if any, will the teen claim as the case progresses?

Defenses to Murder Are Few and Far Between

There’s few true defenses to murder, as most defenses only mitigate the crime. In order to mount a possible defense, a defendant would need to negate the “mens rea,” or mental element of the crime. Self-defense, necessity, duress, and crime prevention are a few that, if proven, may prevent a conviction. However, unless further evidence comes out in this case, it doesn’t seem Harrouff will be able to argue any of these.

What’s left? Insanity and intoxication are 2 possible defenses that may mitigate Harrouff’s charges. Even though intoxication, or drug use, can sometimes be used as a mitigating circumstance, many states don’t put much weight into a voluntary intoxication excuse. With his claims of super powers, best guess is that he’ll go for an insanity defense. Will it really work, though?

Defendants Bear the Burden of Proving Insanity

All but 4 states allow the insanity defense against criminal charges. In these states, if proven, a defendant will be found not guilty by reason of insanity. The remaining 4 states require a verdict of “guilty but insane.”

Since Florida does have an insanity defense, Harrouff will have the burden of proving his insanity. Florida law, along with the majority of other states that allow the defense, requires the defendant to successfully argue he/she was insane when the crime was committed. Now, you may be thinking this teen doesn’t have a documented history of mental illness so it’s going to be hard to prove, but Florida does allow temporary insanity pleas. 

Courts vary by jurisdiction on how they determine whether a defendant is legally insane, but there’s generally 2 schools of thought about what it means to be legally insane. The Model Code recognizes insanity when the mental disease causes an inability to either appreciate the wrongfulness of actions or an inability to control impulses. The “M’Naughten” rule considers whether the defendant’s mental disease caused them to fail to understand what they were doing or fail to know that what they were doing was wrong. Florida uses the latter standard.

Proving insanity at the commission of the crime negates the mens rea element because it proves the defendant couldn’t have had the required mental state needed to be guilty of the crime. In other words, although the acts were physically committed, there was no “guilty mind.”

What Will This Mean for the Defendant?

One thing to remember is that the insanity defense has to be argued in front of a jury and that’s a hard sell. Once it reaches this point, a trial then becomes not whether Harrouff committed the crime, but rather what was going on inside his head.  Experts say succeeding is extremely difficult, even when there’s a clear record of mental history, which the teen in this case doesn’t even have.

If Harrouff can successfully argue an insanity defense, it’s not a get out of jail free card—he’ll probably end up in a mental health institution. Although these type of sentences are typically longer than what a prison sentence would have been, Florida law allows judicial discretion in terms of deciding whether to sentence the defendant to an institution or some other type of sentence.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Department of Justice Putting the Kabosh of Private Prisons

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

Landmark U.S. Supreme Court Decision Strikes Down Anti-Abortion 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 43^rd 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