By Lisa Riordan Seville
The Crime Report and the Lloyd Sealy Library at John Jay College of Criminal Justice launch a collaboration examining the history of crime and punishment.
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By Cara Tabachnick
The DOJ is marking “Sunshine Week” with claims of improved access to government records. Critics beg to differ.
Read full entry »A new study shows that federal judges are issuing widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results...
Read full entry »The federal government is under no obligation to release mugshots of accused criminals under the Freedom of Information Act, even though many states and...
Read full entry »By Lisa Riordan Seville
After years of relative inaction, the government is stepping up prosecutions under the Foreign Corrupt Practices Act.
Read full entry »A new report from the National Association of Criminal Defense Lawyers looks at New York and Colorado as models for change in the grand jury system.
Read full entry »With a growing number of federal criminal statutes, it's become increasingly easy for Americans to end up on the wrong side of the law, says the Wall Street Journal. Many of the new laws set a lower bar for conviction than in the past: Prosecutors don't necessarily need to show that the defendant had criminal intent.
Some examples: father-and-son arrowhead lovers couldn't argue they made an innocent mistake on protected federal lands. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband's lover faces federal charges tied to an international arms-control treaty. Roscoe Howard, a former U.S. Attorney for the District of Columbia, argues that the system "isn't broken." Congress, he says, took its cue from a public less tolerant of certain behaviors. The full article is available only to paid subscribers.
The annual cost of keeping someone imprisoned in a federal facility during the last fiscal year was $28,284.16, says a new compilation issued by the federal court system. The annual cost of probation supervision was $3,938.35. The figures work out to a daily cost of $77.49 for incarceration and $10.79 for supervised release. As of last month, the federal prison system's population was nearly 216,000, about 38,000 of whom were in private or contract facilities.
In its budget proposal now pending in Congress, the U.S. Bureau of Prisons projected that if current trends continue, its prisoner population would near 248,000 by fiscal year 2018. The court system report listed the daily cost of holding a criminal defendant in pretrial detention last year as $70.56, and the daily cost of pretrial supervision as $6.62.
Read full entry »Despite conventional wisdom that Philadelphia has a "no-snitch" reputation, federal prosecutors there have long been relying on cooperators to make cases, says the Philadelphia Daily News. One third of three federal criminal cases involves cooperating defendants, almost three times the national average for federal cases, according to the U.S. Sentencing Commission. "There isn't anybody facing mandatory minimum sentences that we have not urged to cooperate," said Assistant U.S. Attorney Robert Zauzmer.
When defendants cooperate and provide information the government deems useful, prosecutors make a motion at sentencing based on "substantial assistance." The motions generally mean a reduction in the prison time a cooperating defendant would otherwise have to serve. The model has proved to be a win-win for the feds: Philly prosecutors are getting lots of cooperation and nearly double the national average of prison time. Several factors conspire to make the Philly feds look like bad-asses. For one thing, a higher percentage of violent crimes are charged than the national average, and those crimes often carry mandatory minimum sentences of 10 to 30 years, meaning defendants have a greater incentive to cooperate. (In 2010, 61 percent of federal criminal cases in Philadelphia involved drugs, guns and robbery or a combination, compared with 39 percent nationwide.)
Read full entry »Federal investigators in Detroit have taken the rare step of obtaining search warrants that give them access to Facebook accounts of suspected criminals...
Read full entry »Many in the federal judiciary are rebelling against the application of a new law addressing the sentences for people convicted of selling crack cocaine, says the New York Times. The Fair Sentencing Act or 2010 narrowed the vast gap between penalties for crimes involving crack and powder cocaine. The law seems to reduce sentences only for offenses committed after it went into effect in August. The usual rule is that laws do not apply retroactively unless Congress says so, and here Congress said nothing.
That seems to mean that hundreds and perhaps thousands of defendants who committed crack-related crimes before August will still face very harsh sentences. About 30 federal trial judges have protested that result. The only appeals court to directly address the question so far, the U.S. Court of Appeals for the Seventh Circuit in Chicago, said only Congress could apply the new standards to old cases. “We have sympathy,” Judge Terence Evans wrote, "for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair."
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Chief Justice John G. Roberts Jr. released the year end report on the federal judiciary highlighting two problems judicial vacancies in “critically overworked districts” and the economic downturn that has “imposed budgetary constraints throughout government.”
Read the full report here.
Use the Crime Report for more information on courts.
Read full entry »A Coronado, Calif., police officer used excessive force when he shot a Taser dart at a young driver who was stopped for a seat belt violation, a federal appeals court ruled Tuesday. The motorist, Carl Bryan, then 21, fell to the asphalt after being struck by the dart, breaking four teeth and suffering facial cuts, reports the Los Angeles Times. He later sued the Coronado Police Department and Officer Brian MacPherson. The excessive-force ruling by the U.S. 9th Circuit Court of Appeals could have consequences for police use-of-force policies across the West, legal experts predicted.
Two other lawsuits over Taser incidents are still pending before the appeals court, including a case in which a pregnant woman in Seattle was subjected to the device in a routine traffic stop. Police must have reasonable grounds for using a Taser on a suspect, the appeals panel said, noting that Bryan was wearing only boxer shorts and tennis shoes and was clearly unarmed. The appeals panel, while deeming the Taser use excessive and unjustified, said the officer nonetheless deserved immunity from prosecution because the circumstances in which the weapon could be reasonably deployed weren't clearly defined at the time.
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A new bill before Congress aims to overhaul the nation’s legal aid systems
A bill introduced in Congress last week offers long overdue help to the country’s beleaguered public defenders.
The omnibus Justice for All Reauthorization Act of 2010, introduced by Senator Patrick Leahy (D-VT) contains language earmarking $20 million between fiscal years 2011 through 2015 for the country’s under-funded and over-worked legal aid providers. Including a two-year program of technical assistance, the amendment to Bill S3842 is aimed at ensuring that states comply with Sixth Amendment guarantees of the right to counsel, and it allows the Attorney General to sue states who are deemed to be not in compliance.
The bill, a larger and more substantive version of justice reform legislation enacted in 2004, probably has little chance of approval this Fall. Observers say S3842 has come too late in this Congressional session to have a chance of passage, and any decision to reintroduce it will depend on the political landscape following the November midterm elections.
Nevertheless, the fact that the bill was introduced at all suggests that Justice officials are now willing to “bring in the resources, prestige and power of the government to this problem,” says Robert C. Boruchowitz, founder of the Washington Defender Association, and author of Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Court.
Boruchowitz and other experts contacted by The Crime Report say the staggering case load for the few public defenders available has created one of the most egregious gaps in the U.S. Justice system.
They say that thousands of poor people, many of them minorities, have been left with a stark choice: plead guilty and accept whatever punishment is meted out; or put themselves at the mercy of the court.
And more troubling still, many public defenders or attorneys assigned by the court do not have the training or time to build an adequate defense.
Boruchowitz, now a professor at the Seattle University School of Law, cautioned that while the Attorney General has long had the power to enforce Sixth Amendment compliance in the juvenile justice system, the power has yet to be used in indigent defense cases. It would be rare for the DOJ to sue states, he notes, adding that it was more likely they would try to first come to a compromise.
This latest legislative attempt to fix systemic problems throughout the nation’s public defense system comes on the heels of the September 2010 Bureau of Justice Statistics release of the first study of such programs.
5.6 million cases
Using information from the Census of Public Defenders to produce the reports State Public Defender Programs, 2007 and County-based and Local Public Defender Offices, 2007, Bureau of Justice Statistics (BJS) researchers found that approximately 1,000 offices across the nation employing 15,000 attorneys processed 5.6 million cases that year, the last year statistics were tracked.
Almost a quarter of the 530 county-based public defender offices reported a lack of resources and attorneys to process the 4 million cases tried at a local level. And only four of the 17 reporting state programs had enough attorneys to meet caseload standards.
This wasn’t news to David Carroll, the director of research for the National Legal Aid & Defender Association, a Washington D.C. based not-for-profit group which unites individual legal professionals and legal organizations working to ensure indigent defense.
“In many states there is public defense in name only,” said Carroll, who has conducted research on public defense systems in Michigan and Louisiana, and says the crisis is “much worse” than indicated by the BJS reports.
Although the right of access to counsel was reinforced by the groundbreaking 1963 Supreme Court decision, Gideon v. Wainwright, state public defense or legal aid systems widely vary in quality, standards and structure around the country. The public defender may be employed by a state office, an individual counsel assigned to the court or outsourced to a local law firm which signs a contract with the court.
The patchwork system is aggravated by the chronically under-funded and under-staffed legal aid offices around the nation. The result: an untold thousands of cases have ended with wrongful convictions. Most of the public outrage over the situation has focused on death penalty exoneration cases, where DNA evidence or more sophisticated legal teams have been able, on appeal, to undo the harm committed in initial trials by either the lack of legal aid help or a poorly mounted legal defense.
But experts contacted by The Crime Report say some of the most blatant injustices occur in misdemeanor courts or in cases where defendants are brought up for relatively minor charges.
‘Running people through the mill’
“In some jurisdictions they just not assigning public defenders in misdemeanor courts,” said Carroll. “If we are just running people through mill and not worrying about fairness, then we are sending innocent people to jail and leaving real perpetrators in the communities.”
A roadmap for change has been available since 2002, ,when the American Bar Association (ABA) issued “ten principles” of a public defense delivery system—highlighting judicial independence and quality control.
Several states have indeed responded to the ABA’s call. This July, Maine opened its first statewide Commission on Indigent Legal Services, running it as an office separate from its judiciary. “This is giving us assurance that every client is getting quality representation to the extent that we can,” said Executive Director John D. Pelletier.
But the majority continue to ignore it. A 2009 report, Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel, published by the think tank Constitution Project’s National Right to Counsel Committee, charged to find solutions, noted that lawsuits highlighting failures in the public defender system have been filed in 29 States.
The nature of the lawsuits varies. At least seven more states more than the 29 mentioned in the report face pending litigation on indigent defense. In Michigan and New York, lawsuits have been brought challenging entire systems for the delivery of indigent defense services. In Florida, Kentucky, and Tennessee, litigation is pending in which defense lawyers have challenged the actions of trial courts in seeking to require public defense programs to handle excessive caseloads alleged to be excessive.
Things are likely to get worse as states face new demands for budget cuts in today’s strained economic climate.
“There are still lots of needs, caseloads are too high, and benefits are too low, (and) budget problems can push them further into abyss,” says Boruchowitz. “But maybe this [federal bill] is a light shining into the darkness.”
Cara Tabachnick is news editor of The Crime Report.
Photo Via County.org
The US Supreme Court has made it easier for some death row inmates to overcome a one-year statute of limitations for filing a federal appeal of their capital sentence, reports the Christian Science Monitor. The high court ruled 7 to 2 on Monday that under certain extraordinary circumstances courts should allow an appeal to be filed even after the one-year deadline has expired. The decision came in the case of Florida death row inmate Albert Holland, who lost his right to file a federal appeal of his death sentence when his lawyer missed the one-year deadline established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
In another ruling issue Monday, the Supreme Court ruled that judges can order restitution payments in criminal cases even after a 90-day deadline has expired. At issue in the case was how to interpret the federal statute that authorizes the imposition of restitution payments, and which includes the provision of the 90-day deadline. The court split 5 to 4 in the decision. Writing for the majority, Justice Stephen Breyer embraced a flexible view of the statute. He stressed that as long as a judge made clear that restitution would be part of the sentence, the judge could take longer than 90 days to impose that penalty.
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