LegalMatch: Criminal 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

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

Judge Michael Cicconetti and Creative Sentences

Have you ever watched the news or read an online article and wished a defendant received a tougher sentence? Criminal punishment is a sentence a defendant could face once he or she was convicted of a criminal act. Criminal sentences vary from incarceration to fines.

In recent years, more focus has been on alternative sentencing. An alternative sentence gives a judge more options than the typical jail, fines or probation. Alternative sentencing include work furloughs, electronic monitoring, and community service.

Alternative sentencing is a way to relieve the overcrowded criminal justice system. Traditional criminal punishment often don’t give victims or the general public the satisfaction of a defendant getting a “deserved” punishment.

Creative Sentencing

Crime and punishment should be a little creative to really drive home the point that criminal acts are wrong. Creative sentencing is a form of alternative sentencing. Creative sentencing differs from a traditional sentence and alternative sentencing in that it is often tailored to the criminal act committed. The sentence "drives home" the point to the defendant.

The problem with creative sentencing is that it can go too far and violate the Eighth Amendment, which prohibits cruel and unusual punishments. An example of cruel punishment is sentencing a defendant to death for a theft conviction. Another problem is the punishment may not be unfair. A creative sentence can’t be too unusual that it doesn’t fit the crime. However, a punishment must be both cruel and unusual to violate the Eighth Amendment.

Is Judge Michael Cicconetti’s Creative Sentences Fair?

In the upcoming blogs, we are going to take a look at creative sentencing by looking at the criminal sentences of Ohio Judge Michael Cicconetti. In some people’s opinion, he may be the most creative judge in the history of the criminal justice system. He offers convicted defendants a chance at a personal punishment rather than a traditional or typical alternative sentence.

For example, in 2013, Judge Cicconetti offered Jonathan Tarase a creative sentence. Tarase was convicted of drunk driving. He was arrested after allegedly injuring a husband and wife when he failed to yield at a stop sign.

Tarase faced the traditional criminal punishment of five days in jail. Cicconetti offered another option. According to the judge, he thought of the sentence after the victim testified. During the testimony, she showed him pictures of the wrecked car. Tarase could complete a three-day alcohol treatment course and view the bodies of fatal accident victims.

Tarase chose to avoid jail.

The punishment did fit the crime when you consider the judge’s reasoning. Tarase didn’t kill anyone, but he could have. The judge wanted to drive home the point of what drinking and driving could really do—what Tarase could’ve done.

Did the punishment violate Tarase’s Eighth Amendment rights? No. The sentence wasn't cruel in any context. While it was a little different from traditional criminal sentences, spending time in an alcohol treatment course is not unheard of and viewing bodies of victims is related to the DUI involved.

Is it Fair for Judge Cicconetti to Make These Offers?

A judge has a lot of sentencing options as discussed. The hidden issue is: should the Ohio judge be making these deals with defendants. They’ve been convicted of a crime. They didn’t choose the first and most correct option—not to commit the crime at all. It’s not fair for them to get to choose their sentence.

Many judges just sentence the defendant to the alternative or traditional sentence, not ask them. For some people, a defendant having a choice of between punishments is going too far. Of course, a person would choose the alternative to jail, even if they had to view bodies in a morgue.

An In-Depth Look Into Judge Cicconetti’s Creative Sentences

The judge has made a lot of creative sentences. Here is a short list:

• A teenager, who played music too loud, to sit alone in the woods in silence
• A man convicted of shouting obscenities at the police and calling them pigs to stand among real pigs for two hours
• A woman, convicted of animal abuse for abandoning a litter of kittens, agreed to sleep in a park without shelter or a blanket for one night.

In the next blog we’ll look at if it was OK for the judge to sentence a girl to walk 30 miles.

Authored by Taelonnda Sewell, LegalMatch Legal Writer

New Mexico’s Three Strikes Law

New Mexico’s “three-strikes” law is heading to the state senate for an overhaul after House Bill 56 recently passed. New Mexico currently has a “three-strikes” law in place that automatically increases the sentences of three-time violent felons to life imprisonment.

A third-time New Mexico offender faces life in prison regardless of where the previous two felonies took place. There are five different criminal acts listed within the current statute:

• murder in the first or second degree,
• shooting at or from a motor vehicle resulting in great bodily harm,
• kidnapping resulting in great bodily harm,
• aggravated sexual assault
• robbery while armed with a deadly weapon resulting in great bodily harm.

The purpose of the statute is to protect society from repeat violent criminals. If you take a closer look, you’ll notice the statute weighs heavily on crimes that result in “great bodily harm.”

How Would the Proposed Bill Amend the Three-Strikes Law?

House Bill 56 proposes to add 16 new crimes to the list that would warrant a life sentence. Among those crimes added is voluntary manslaughter, aggravated assault with intent to commit a violent felony, third-degree aggravated battery, second or third degree shooting at a dwelling or occupied building, second or third degree criminal sexual contact of a minor, armed robbery, aggravated arson, and aggravated battery upon a peace officer to name a few. In addition to the expanded list of crimes, the bill also removes language referencing “great bodily harm” within that statute itself.

Is This a Good Idea?

The financial implications of more inmates with a life sentence are great. A greater chance of life imprisonment means more offenders will opt for juries adding even more costs and clogging the already full New Mexico court dockets. On the flip side, less crime means avoiding expenses related to victimization. However, financial and administrative implications don’t outweigh the safety of our communities.

Aside from the financial and administrative effects, opponents of the bill state that the removal of the great bodily harm requirements potentially puts repeat non-violent offenders at risk for a life sentence that don’t truly deserve it. The best example in support of this argument is kidnapping. Under the current law, one must be convicted of kidnapping resulting in great bodily harm to the victim to earn a life sentence. The new bill removes the great bodily harm requirement, which means any kidnapping will essentially suffice.

First-degree kidnapping involves only “injury” and not great bodily harm. No actual harm is needed to fall within second-degree kidnapping. Those against the bill argue that you could be unnecessarily sentenced to life imprisonment by simply holding someone by the arm to take money from them. But, do we really want kidnappers to be released simply because they didn’t cause great bodily harm? Keep in mind that this would only count if it were their third violent felony.

If you take a closer individual look at each crime added, you will find that most require great bodily harm as a factor within their defined statutes. For example, let’s take a look at statute 30-17-6:

Aggravated arson: Aggravated arson consists of the willful or malicious damaging by any explosive substance or the willful or malicious setting fire to any bridge, aircraft, watercraft, vehicle, pipeline, utility line, communication line or structure, railway structure, private or public building, dwelling or other structure, causing a person great bodily harm.   

The key distinction between arson and aggravated arson is the harm involved; it’s the harm that escalates arson to aggravated arson. The majority of the crimes added to House Bill 56 are violent in nature themselves, so removing the great bodily harm language isn’t really necessary to change the intent of the bill, but leaving the language in isn’t really harming anything either.

Other states that have three-strikes laws allow life sentences for non-violent crimes because their statutes are written and applied broadly. However, New Mexico is not one of them. New Mexico’s three-strike laws is very narrowly applied. So much so that no one offender is currently serving a life sentence under the current statute.

Allowing additions of violent crimes that would warrant a life sentence seems reasonable in order to prevent repeat violent offenders from further harming society. Should the language be modified to protect non-violent defendants from unintentional consequences? Probably. Allowing room for judicial discretion for individuals that may not deserve such a harsh sentence would be a great start and keeping the great bodily harm requirements ensures the statute will be applied narrowly and only to violent offenders as originally intended.

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

 

Children Automatically Sentenced to Die in Prison Could Get Second Chance

Children who create heinous crimes are often tried as adults. In many circumstances, it’s the right thing to do. Children who are “old” enough to kill are old enough to receive an adult punishment. That punishment is life in prison or death at the government’s hands. Is that tough punishment the correct punishment? According to the U.S. Supreme Court, the answer is no.

In a 6-3 decision, the Court made a 2012 ruling retroactive. That ruling made mandatory life imprisonment without the possibility of parole unconstitutional. Justice Anthony Kennedy wrote prisoners should be given the opportunity to show their crimes don’t make them permanently corrupt.

Can Little Killers Become Law-abiding Adults?

Justice Kennedy also mentioned restoring hope for children to live their lives outside prison walls. Children who commit adult crimes are just like other children. They are constitutionally and fundamentally different from adults in:

• Level of culpability
• Diminished culpability
• Greater prospect of being reformed into law-abiding citizens

There’s one problem. Is it possible those prison walls will change the childrens' prospects for being reformed? They’ve spent their lives with adult criminals. They’ve spent most of their informative years behind bars. They are working from a deficit. Is it too much to ask them to become law-abiding citizens when some adults can’t resist become repeat offenders?

Of course, there’s statistics to prove and disprove the questions asked. The bottom line is this: Children should be allowed to receive a second chance. Living a childhood behind bars is punishment enough.

Dissenting Justices See Another Issue at Play in Freeing Child Inmates

The dissenting judges, or the three who voted against the ruling, saw a bigger issue in the decision. The 2012 and current decision are a bid at getting rid of life without parole and the death penalty for children altogether. In fact, the justices claimed it was a “devious” way of eliminating the life without parole for juvenile offenders.

Both decisions may ultimately make it hard to sentence children who commit harsh crimes. The 2012 decision eliminated the death penalty for juveniles. Now the current decision essentially takes away life without parole. The question becomes how will juveniles who commit heinous “adult” crimes be punished? Life with parole isn’t tough enough. 

It gives juvenile offenders a chance to commit an adult crime without worrying about the future. At some point, when they are ready, they’ll repent for their crimes. The parole board will set them free. For some of them, they’ll be able to do the time.

What about state’s rights? States do have a right to sentenced children to life without parole. It’s unknown what will happen in the nine states that have disproportionally sentenced children to life in prison without the possibility of parole. It takes away all the state’s right to sentence minors in whatever manner the state(s) want.

The Court Cited the Eighth Amendment as a Reason to Strike Down the Without Parole Option

Whether you oppose the justices’ decision or not, it’s an Eighth Amendment issue. The Eighth Amendment of the U.S. Constitution focuses on cruel and unusual punishment. In criminal cases, no one is allowed to be subjected to punishment deemed too cruel, such as excessive bail or fines. Life without the possibility of parole is cruel and unusual because children who commit crimes mature. Once they are adults, they are serving disproportionate sentences.

In Montgomery v. Louisiana, the petitioner was 17 years old when he killed a deputy sheriff in 1963. He received life without the possibility of parole. Almost 50 years later, he’s still servicing his sentence. If he’d receive life with the possibility of parole, he would have a second chance by now. He could’ve built his life. The keyword is “built”, not rebuilt. He was a teenager who committed an adult crime, but he never had a chance to become an adult outside of prison.

It’s hard for many victims of child killers to agree they deserve a chance at a new life. However, the Constitution guarantees everyone the right not to receive a cruel sentence. It’s the criminal system that has decided children who commit adult crimes should be sentenced to adult punishment. The juvenile justice system is supposed to reform children committing crimes. However, many believe adult sentences are a way to cast off these children because are useless to society. It’s only a matter of time before the focus is placed on giving children life with the possibility of parole. It doesn’t guarantee they will be freed. It gives them a chance.  

Authored by Taelonnda Sewell, LegalMatch Legal Writer

The Basics of Hiring a Criminal Defense Lawyer

Criminal Defense Lawyer Basics

Is Lifetime Post-Release Supervision for Juvenile Sex Offenders Too Harsh a Punishment?

A recent U.S. Supreme Court case is considering this very issue. In Kansas v. Dull, defendant Bryce Dull was charged with rape for having sexual intercourse with a 13 year old girl. Dull was 17 years old at the time. The Kansas District Court sentenced Dull to 45 months imprisonment followed by statutorily mandated lifetime post release supervision for aggravated indecent liberties with a child. “Aggravated indecent liberties with a child” includes sexual intercourse with a child younger than 16. The case was upheld on appeal.

However, the Kansas Supreme Court reversed, holding that a mandatory lifetime post release supervision for a sex offense committed by a juvenile is too harsh and violated the “cruel and unusual punishment” clause of the Constitution. The State of Kansas appealed.

What Does Mandatory Lifetime Post Release Supervision Entail?

If mandatory lifetime post release supervision is imposed, Dull must register and report to a local sheriff’s office and parole officer for life, be subjected to polygraph tests and searches of his home, vehicles, and property for life, and cannot drink alcohol or travel out of state without permission from his parole officer. If ever convicted of new crime in the future, regardless of severity, Dull would be faced with a possible prison sentence of life without parole eligibility.

Does Mandatory Lifetime Post Release Supervision Violate the Eighth Amendment?

The Eighth Amendment was added to the Constitution to prevent the Federal Government from using cruel punishments as a means to oppress people.

What is considered “cruel and unusual punishment” is evaluated on a case-by-case basis. The goal is to make the punishment proportionate to the crime. A punishment which is grossly disproportional to the offense is considered “cruel and unusual.”

In holding that Dull’s mandatory lifetime post release supervision was cruel and unusual, the Kansas Supreme Court evaluated two U.S. Supreme Court decisions. In Graham v. Florida, the defendant (16 years old) was convicted of armed robbery and sentenced to life without parole. The court ruled that a sentence of life imprisonment without parole for a juvenile convicted of a non-homicidal crime violated the Eighth Amendment.

The Kansas Supreme Court also evaluated Miller v. Alabama. In Miller, the defendant (14 years old) was convicted of capital murder during the course of arson and sentenced to a mandatory sentence of life imprisonment without the possibility of parole. Notwithstanding, the U.S. Supreme Court held that the Eighth Amendment prohibits mandatory sentencing of life in prison without the possibility of parole for juvenile homicide offenders. In so ruling, the court concluded that a mandatory life sentence for a juvenile is unconstitutionally disproportionate punishment.

Kansas will argue that Graham and Miller are not the same case because Dull evaluates whether mandatory post release supervision is too stiff, whereas Graham and Miller assessed whether juveniles who were imprisoned for life without the possibility for parole was appropriate. Notwithstanding, the core of the Graham and Miller decisions is the idea that defendants’ punishment is disproportionate because it implies the juvenile will forever be a danger to society. This principle is present in this case.

Even though Dull will not be physically confined, mandatory lifetime post release supervision will significantly restrain him. He will be subject to a number of restrictions for the remainder of his life, regardless of whether he demonstrates he is no danger to society after incarceration. It marks him forever as a dangerous person without any hope of removing the mark.

Moreover, lifetime post release supervision will mean that if Dull commits any crime in the future, no matter the severity, he will be imprisoned for life without possibility for parole. It is the very penalty that the Graham and Miller courts found cruel and unusual. 

Further, Dull demonstrated diminished moral culpability. Dull is mentally impaired and arguably has the mental capacity of a 13 year old. He was also charged based only on the victim’s age, who was Dull’s girlfriend at the time, not because of any allegation of force or nonconsensual conduct.

Many states find mandatory lifetime post release supervision too strict a punishment for juveniles. Iowa is the only other state besides Kansas that imposes mandatory, non-terminable lifetime supervision for juvenile offenders. Four states allow parole boards or courts to terminate mandatory lifetime post release supervision. Five states allow lifetime post release supervision, but supervision can be eliminated through a post-conviction application. There are also four states which exempt juvenile offenders from mandatory lifetime post release supervision altogether.

For these reasons, mandatory lifetime post release supervision for Dull is cruel and unusual punishment.

Should Juvenile Sex Offenders be Subject to Mandatory Penalties?

The Eighth Amendment requires that the punishment fit the crime and must be evaluated on a case-by-case basis. If the minor committed a crime of high moral culpability, such as forcible rape, a mandatory lifetime penalty may be warranted. In cases where the charge is a lesser sexual offense and the juvenile demonstrates diminished moral culpability, mandatory penalties violate the Eighth Amendment.

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

Unusual Judge’s Decision Almost Set Back First Amendment Rights by Several Decades

A recent Florida case nearly set First Amendment free expression back to a time before the Nixon administration. Fortunately, the Appeals Court reversed the decision.

Frederick Cobia was a well-known informant to the Palm Beach police. During his incarceration at the Palm Beach County Jail, his telephone conversations with his attorney and close family members were monitored and recorded. Although this is not unusual procedure in most jails, the recorded calls somehow wound up with the attorney for another inmate and the Palm Beach Post, a local newspaper. The Palm Beach Post then proceeded to post the transcripts on their website.

Judge Jack Schramm Cox ordered that the Palm Beach Post remove the transcripts from their website and placed a protective order against any future publication of the transcripts, citing the prisoner’s right to privacy. However, since the post is considered a newsworthy topic, many media lawyers considered the judicial order a violation of the First Amendment and the established precedent on prior restraint.

What Is Prior Restraint?

Prior restraint is basically a form of censorship on any expression before the expression actually takes place. Prior restraint prevents censored material from being heard or read by a third party at all. The government is not permitted to place prior restraint unless the reason falls under one of the few exceptions.

These exceptions mainly include information that protects national security, especially during wartime. Another exception is if the information may affect an ongoing legal case. Any exception must be reviewed under strict scrutiny so that the First Amendment is not violated. “Strict scrutiny” means that the government must have a compelling reason for censoring free speech and the law used must be narrowly tailored to that purpose. 

In this case, the information produced in the telephone transcripts did not affect any legal case and was not going to endanger national security. Instead, the judge ordered the censorship of the transcripts because they were taken from a prisoner who did not give permission to disseminate this information to a third party.

One factor in determining whether a prior restraint should be used is whether it would be effective. Since the transcripts were published online, taking them down from the single website does not prevent their circulation. In fact, several copies of the transcript appeared on various websites since the Palm Beach Post removed them from their site.

Does the First Amendment Trump the Right to Privacy?

The First Amendment provides free speech and press. The freedom of the press prevents the government from interfering with the publication of information and the punishing of those who publish their opinions. It not only covers newspapers and other news outlets, but it also covers individuals as well.

The freedom of speech is the right to communicate your opinions and ideas without fear of repercussions from the government. In general, the government cannot punish you in retaliation or censor what you say, as long as the ideas and expression are considered protected speech. There are very few exceptions to protected speech, but lesser protected speech does exist (defamation, obscenity, fighting words).

In contrast, the right to privacy is not found within the Constitution. Instead, the Supreme Court has found that a right of privacy is implicit in the Constitution. This right mainly covers certain civil liberties (such as compulsory education, procreation, and marriage laws). The other forms of privacy, including the right to keep private information about yourself private, are usually addressed in state laws.

The First Amendment and the right to privacy are often in conflict with one another. While privacy advocates argue for the ability to protect personal information like health issues from the public, journalists and media lawyers argue for the general public’s right to know about public figures and newsworthy issues.

Cobia’s Case

Although a prisoner may have some rights to keep certain information private, this particular prisoner Frederick Cobia is a witness to a murder case that remains pertinent in the Palm Beach area. Furthermore, as a prisoner, Cobia is already aware that his calls are monitored and recorded by prison officials. Once incarcerated, a prisoner receives several forms of notice that his telephone calls are monitored and/or recorded.

The combination of Cobia’s knowledge that his calls were already monitored plus the broadness of Judge Cox’s order is probably the reason behind Florida’s Fourth District Court of Appeal’s decision. Furthermore, by the time the transcripts were published online, they were made public record. The defense attorney in the murder trial in which Cobia was a witness had already submitted the transcripts as part of the court filing. For the most part, public records are considered fair game for news publication.

Authored by Emily Yu, LegalMatch Legal Writer

Trial by Tweet: The Effects of Social Media on the Courtroom

There are very few people who get excited when contacted for jury duty. Jury duty can be time consuming and can result in missing work. So, some people go to extremes to try to avoid serving any time on a jury. In one case, a juror in Florida tried to add the defendant on Facebook as a means of being removed from the jury. Once that juror was removed, he then bragged about how he was removed from the jury on Facebook. Consequently, he was jailed for criminal contempt.

In other instances, jurors are usually instructed by judges not to communicate with anyone besides other jurors during trial. But, some jurors succumb to the temptation of posting their opinions on social media outlets like Facebook and Twitter.

In Detroit, a woman posted on Facebook her opinion that a defendant in a local trial was guilty. The only problem was that the woman was a juror, and the trial was not over yet. The result for this woman? The judge had to remove her from the jury and made her write a five page essay on the constitutional right to a fair trial.

While some judges may scold a juror for their indiscretion, other judges may hold the juror in contempt, or the indiscretion can even result in a mistrial.

The attorneys for Boston Marathon bomber Dzhokhar Tsarnaev are appealing for a new trial because they argue that social media and publicity surrounding their client led to his guilty conviction.

As one court recognized, the exposure to prejudicial communication can be much higher “when a juror comments on a blog or social media website . . . given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.”

Solutions to the Social Media Problem

The negative effects of social media on juries has been well publicized, but few discuss solutions or the possible benefits of social media prevalence and trial. There is an emerging industry of companies that can search and monitor users’ online social media activities during trial. Such solutions may be costly, and if a jury member refuses to provide their account information, judges may be forced to either dismiss them from the jury or find them in contempt of court.

Instead, judges have also simply requested that jurors refrain from using social media until the trial is over. Activities such as friending the victim or defendant (or their respective friends and family) online can be mentioned and discouraged explicitly. Attorneys on both sides of the case can also include jury instructions that explain to jurors that they should ignore social media and only use the evidence provided in court to make their decisions.

In a 2011 Federal Judicial Center survey, most judges already take some steps to prevent jurors from using social media. Out of 508 judges surveyed, only 30 judges reported any social media use by jurors during trial after the judge explicitly warned jurors not to. Although the prevalence of social media is much greater today, most jurors still hold a level of respect and deference toward judges and other officers of the court. A warning from a judge to the entire jury may be sufficient to curb most social media activity during trial.

Selecting Jury Members Using Social Media

Traditionally, attorneys use a questioning procedure among a group of potential jurors called “voir dire.” Attorneys will ask a series of questions to the group or to an individual potential juror to see whether the juror is biased, if the juror can make judgments fairly and reasonably, and if there is any reason the juror cannot serve on the jury.

With Facebook and Twitter, an attorney can research a potential juror for personal biases. Attorneys can better determine if a person would be an ideal juror or if that person should be dismissed.

Critics of the use of social media argue that it is an invasion of privacy. However, if attorneys request social media account names from potential jurors and remain transparent about why they want the information, then attorneys can avoid privacy violations.

Social media can have a substantial effect on the results of a trial, but the effect can also be mitigated through transparency and due diligence by the court.

Authored by Emily Yu, LegalMatch Legal Writer

New Federal Drug Sentencing Guidelines Help Some Inmates Gain Freedom

Last year, the U.S. Sentencing Commission made major decisions in felony drug sentencing. In April 2014, the Commission lowered many sentences for non-violent drug crimes. Months later, it made the decision retroactive, affecting some convicted felons already in prison. At the beginning of November 2015, the first group of 6,000 inmates was released from custody based on this new policy. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016.

How Does the New Sentencing Law Work?

The new sentencing policy is often referred to as “Drugs Minus Two.” The Sentencing Commission has long used a “drug quantity table” to find guideline sentences for drug possession based on weight. Often, these guideline sentences were much higher than the mandatory minimums for the same crimes. Now, the Commission will downwardly adjust all sentences by two levels on the table. The Commission estimates that the average sentence reduction will be approximately 25 months for qualifying drug crimes.

For current prisoners, release is not automatic. Prisoners must apply for relief and a judge must determine that the prisoner is eligible for resentencing. The judge must then decide on a case-by-case basis whether or not a prisoner merits a reduction.  

Several types of prisoners will not qualify for resentencing. For example, those who have been found guilty of drug crimes that resulted in death or serious bodily injury cannot be resentenced. Inmates whose sentences were based on a career offender status or another higher guideline (based on aggravating factors) also do not qualify. 

What Will Become of the People Getting Released?

Most of the people released will first go to halfway houses or home confinement before being reintegrated into society. This step is intended to ensure a more successful transition out of prison. However, about 1,700 of the individuals are undocumented immigrants who may face immediate deportation to their country of origin upon release. 

Has the Federal Government Now Done Enough for Non-Violent Drug Offenders?

Many sentencing reform activists say that this policy, while a step in the right direction, does not go far enough to make sure that drug offenders face reasonable and humane federal sentences. There are many things that still contribute to overly punitive sentences, including the guideline sentencing grid and mandatory minimums. One former Assistant U.S. Attorney, who later became a sentencing reform advocate, calls the process overly mechanical and says that it is therefore like “stacking bodies up” regardless of the facts of the individual crime. There are still roughly 90,000 individuals serving federal time for drug crimes.

Activists point to several factors in harsh sentencing:

• The law does not distinguish between small-time dealers and couriers and major players like cartel leaders, so people are often sentenced for the quantity of drugs involved in a much larger scheme rather for the quantity they actually handled.
• The government still uses the weight of drug-containing compounds to determine sentencing. For example, for possession of Lortab, a pill containing 95% aspirin and around 5% hydrocodone, courts consider the entire weight of the pill.  For LSD-laced sugar cubes, courts consider the weight of the sugar cube.  
• Due to harsh potential sentences, defendants are often convinced to plea bargain rather than go to trial. Human Rights Watch says that federal drug defendants who go to trial receive sentences three times as long as those who plead and avoid time-consuming trials.
• “Three strikes” and other repeat offender laws are still in effect.  For a drug addict who has not yet received proper counseling and treatment, a few drug possession felonies could lead to a sentence of multiple decades or even life in prison.

Moving Towards Rehabilitation

Our society may begin to consider less incarceration-oriented sentencing for nonviolent crimes, including drug crimes. Trying to genuinely rehabilitate rather than “warehouse” drug offenders would be both cost-effective and compassionate. In 2013, the average yearly cost of housing a single federal inmate was $29,291.25.  Ironically, this would be enough money for a young adult to pay tuition at an inexpensive college. Many inmates are only in their late teens or early twenties and may never be able to show that they have given up the drug lifestyle and can be responsible, productive adults.

Further sentencing reforms should allow courts to consider background and individual facts of each case. They should also give more defendants a meaningful opportunity to have a second (or third, or fourth) chance. “Drugs minus two” may be the first step in a long road ahead.

Authored by Alexis Watts, LegalMatch Legal Writer