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African-American Teen Imprisoned at Rikers Island for Three Years After Being Falsely Accused of Stealing a Backpack
By Whitney Robinson, Associate Editor Vol. 20 In May of 2010, 16 year-old Kalief Browder was walking home from a party in the Bronx with a friend. Suddenly, Browder and his friend were being stopped by police officers operating on a dubious tip from a man accusing Browder of stealing…Jon Burge, Torturer of Over 100 Black Men, is Out of Prison After Less Than Four Years
By: Andrew Goddeeris, Online Production Editor Vol. 20 Yesterday, Jon Burge, who in 2010 was convicted of lying about the tortures of more than 100 black men during a reign of terror on the Chicago police force from 1972-1991, was released from prison after serving less than four years in…President Obama: Mistrust of Law Enforcement Greatest in Communities that Need it Most
By: Whitney Robinson, Associate Editor Vol. 20 President Obama shared a powerful and important message during his address to the Congressional Black Caucus Foundation this past Saturday. According to Obama, the fatal shooting of Michael Brown in August, and the ensuing unrest in Ferguson, exposes a…The Right to Free Exercise of Religion in Prisons: How Courts Should Determine Sincerity of Religious Belief Under RLUIPA
Religion plays a vital role in the daily lives of many prisoners. For incarcerated persons, a connection to the divine can provide comfort during periods of isolation from their family and community. From a policy perspective, spiritual development and religious practice promote rehabilitation and reduce recidivism in inmates. While prisoners forfeit many of their civil liberties, Congress has ensured that religious exercise is not among them. As Congress enhanced religious freedom protections for prisoners, prison facilities became increasingly concerned that prisoners would feign religiosity to gain certain religious accommodations. To counter this concern, prison facilities conditioned accommodations on the sincerity of an inmate’s religious belief. Some facilities, however, instituted problematic methods for determining sincerity of religious belief, such as requiring physical evidence of doctrinal adherence or removing lapsing prisoners from religious accommodations.Racialized Policing in Ferguson, MO
The law operates differently for people depending on their skin color. What we are witnessing in Ferguson is an especially horrifying reminder of this insidious truth. Here’s some essential reading on this latest crisis: “What I Saw in Ferguson” – Jelani Cobb “In Ferguson, the Blurred Line Between Law Enforcement…The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings
The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of over-sight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive— consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.From Arbitrariness to Coherency in Sentencing: Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars
Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on the sentencing systems in the United States and Australia. The suggested changes would result in a considerable reduction in incarceration numbers, lower crime, and a reduction in the expenditure on prisons. The key concrete recommendations of this Article are that the criminal justice system should move towards a bifurcated system of punishment, reserving imprisonment mainly for serious sexual and violent offenses and reducing the terms of imprisonment in general.Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?
Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel.
In the News: Warrantless Use of GPS
Today, the U.S. Court of Appeals for the Second Circuit ruled that the U.S. Drug Enforcement Agency’s warrantless placement of a GPS device on a vehicle was constitutional because probable cause existed to believe the car was being used for criminal purposes. A three judge panel for…The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”
This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.
