The Faculty Lounge

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

Chain Gangs Picking Crops. Why Does This Sound Familiar?

The headline says more than enough:  Alabama may turn to prison inmates to replace lost immigrant farm laborers.   Happily, the spokesman for the state's prison system isn't so keen on the proposal.  But for folks like Governor Robert Bentley, who are are trying to clean up the state's immigration mess without, well, cleaning up the mess,  this must sound like an awfully peachy idea.

 

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

No intent needed to be convicted of many federal crimes

Great article on Tuesday in the Wall Street Journal about the ever-increasing number of federal crimes that lack any mens rea, or intent requirement, to find guilt.  As the article details, this leads to a lot of unfair convictions and punishments for acts that most of us would not assume are crimes:

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.  As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

The lack of a mens rea requirement in so many federal crimes, often the result of poor or sloppy drafting, goes hand in hand with the mushrooming number of crimes now punishable by federal, as opposed to state, law.   This vast federalization of crime, which has primarily taken place in the last thirty years or so, makes it more and more difficult for the average citizen to have even a basic working knowledge of what is and is not criminal conduct.   Combined with harsh mandatory minimum sentencing laws, it is no wonder our prisons are full to bursting. 

Cancer Doesn't Discriminate But Federal Law Does

In my morning paper today - the local Charleston Post & Courier - was a surprising story about Medicaid coverage for breast cancer.  Raymond Johnson was diagnosed last month with breast cancer.  Uninsured, he applied under the federal Breast and Cervical Cancer Prevent and Treatment Act of 2000 for Medicaid benefits.  But the state Medicaid agency denied his request.  Why?  Because he is a man.  

The federal law only permits Medicaid benefits to uninsured women who need treatment for breast cancer.  According to the article, the state Department of Health and Human Services has repeatedly urged the federal government to change this policy to no avail.  The American Cancer Society reports that about 2,140 new cases of invasive breast cancer in men are diagnosed each year.    

Democracy and Defense Counsel

On the BBC News this morning, I heard an interview with Geir Lippestad, the lawyer for Anders Behring Breivik.  Breivik has admitted to last week's mass-killings in Norway.  Here is my transcription of a portion of that interview:

[Reporter:] You, as a lawyer, are, in a sense, at the receiving end of a lot of hostility on a massive scale.  How do you feel?

[Mr. Lippestad:] Well, Norwegian people are loving people and caring people and if you look into the Internet right now, you can see that people value the democracy – the principle of democracy – very high. And the legal system is part of that democracy, and I am proud of being part of a system that is strong, and proud to be in Norway now and receive lots of comments that [a]defender’s work is important.

A video of that interview is here.  The (U.K.) Telegraph reports (here) that Mr. Lippestad was reluctant to accept the case, after police notified him that the defendant had requested Mr. Lippestad's services.

For several hours he hesitated and discussed with friends and family whether to defend a man who only hours early had massacred 68 young people on a summer holiday island.

But in the end his civic instincts trumped his initial horror. "I believe that the legal system is very important in a democracy and someone has to do this job," he told reporters this afternoon.

That's moral mettle.

When Sunny Samaritans Sue

On Tuesday an egg donor, Lindsay Kamakahi (on behalf of herself and all others who sold donor services during the past four years), sued ASRM (American Society for Reproductive Medicine), SART (Society for Reproductive Technology), all SART-affiliated clinics, and all egg agencies that agreed to abide by ASRM’s egg donor compensation guidelines.  The suit seeks damages and an injunction voiding the guidelines. You can access the complaint here Download Filed-Stamped Complaint.

This suit has been a long time coming.  Regular Lounge readers will recall that this is an issue I’ve blogged about on numerous occasions (see here and here, for example) and on which I’ve published several articles, including Sunny Samaritans And Egomaniacs: Price-Fixing In The Gamete Market in 2009.

I don’t have time today to go into as much detail as I’d like about the complaint, the history of the pricing guidelines, and why they violate U.S. antitrust law, though I will be back with all of that information over the coming days.  For today, let me simply close with an excerpt from Sunny Samaritans:

This naked price-fixing of egg donor compensation is so unusual in the modern U.S. regulatory environment of unrestrained competition that the most intriguing question it raises is not whether it violates the Sherman Act—under existing precedent it does. Rather, the relevant question is how, given the government’s substantial enforcement resources and the presence of an active and entrepreneurial plaintiffs’ bar, this buyers’ cartel has managed to survive unchallenged since at least 2000. One is tempted to assert that the twenty-dollar bill cannot be real, given that it is still lying on the sidewalk.

Glad to see Lindsay Kamakahi and her counsel reaching for that $20 bill.

Related Posts:

Politics and Profits in the Egg Business (When Sunny Samaritans Sue IV)

When Sunny Samaritans Sue, Part III

When Sunny Samaritans Sue, Continued

 

 

Whitewashed

I've just finished reading John Tehranian's recent book, Whitewashed:  America's Invisible Middle Eastern Minority.  Although known better as an intellectual property and entertainment lawyer, Tehranian has put together a really interesting book about the fate of Americans of middle Eastern descent who are counted as "white" for most purposes as a matter of law, but suffer significant discrimination, particularly since 9/11.  The book is somewhat anecdotal and also contains much in the way of historical and case law analysis.  There is little in the way of empirical work, but, as Tehranian notes, it is hard to do empirical work in this area because it is very difficult to collect accurate statistics.

It's really impressive that Tehranian put this book together while simultaneously producing a book on digital copyright infringement for OUP. 

Anyone interested in critical race theory and the status of Americans of middle Eastern descent (and indeed the difficulties inherent in defining a meaningful concept of "middle Eastern") might find this book a particularly interesting read.

DOMA, ENDA, and Sexual Orientation as an Immutable Characteristic

Last week the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal law purposes as a legal union between a man and a woman.  This development was welcomed by gay rights advocates.  

However, we are still a long way away from establishing comprehensive federal anti-discrimination mandates to protect homosexuals.  The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation and gender identity has been introduced in almost every Congress since 1994 but has failed to pass. 

ENDA would be consistent with other well-established civil rights protections.  The civil rights statutes can be understood to protect discreet and insular minorities with a history of discrimination.  This civil rights model would appear to encompass the gay community. In the alternative, the law can be understood to prohibit discriminatory conduct based on effectively immutable characteristics.  Many now believe that sexual orientation is biological in nature, and I would argue that it is at least as immutable as religion, which is a protected characteristic.

I have written extensively about the concept of immutability in employment discrimination law in an article  that is forthcoming in the William and Mary Law Review.  What do you think, will American society soon be prepared to support legislation such as ENDA?

Cherokee Nation Ruling on Freedmen

Last week, Cherokee Nation District Court Judge John Cripps issued a decision (here) in the case of Nash v. Cherokee Nation Registrar.  Here's how Reuters describes the issue:

A Cherokee Nation tribal court ruled on Friday that the nation cannot exclude the so-called "Freedmen" from tribal membership even though some of them are not blood descendants of the Indians.

The issue arises because when the U.S. government forced Indian tribes to walk from the Southeast U.S. to Oklahoma in 1831, in what the Indians described as the "Trail of Tears", some of them brought their African-American slaves with them.

They brought them because the Cherokee owned plantations in the U.S. South. When the tribe was ejected from the land they were allowed to take their possessions with them, including the slaves.

After the Civil War, those slaves were freed and an 1866 treaty with the U.S. required the Cherokee to admit to the tribe the slaves and their descendants, some with Cherokee blood because plantation owners had fathered children with slave women, and some with no Indian blood.

In 2007, the Cherokee tribe voted for a tribal constitutional amendment that revoked the membership of the slave descendants who could not prove Cherokee blood. This stripped more than 2,800 Freedmen descendants of tribal membership, most of them African-Americans. Friday's ruling invalidates the Amendment.

The full Reuters article is here.  To my eye, one of the most striking passages in Judge Cripps's decision is this:

Upon the entry of the Europeans to the North American continent the Cherokee Nation abided by such agreements [treaties] made with the different entities be they French, Spanish, English, or, eventually, the United States.  In a number of instances, those nations failed to honor their agreements or treaties resulting in loss and harm to the Cherokee people.  One of the most egregious, of course, being the seizing of Cherokee property and the removal of the Cherokee people from their ancestral homes to Indian Territory.  This does not mean that the Cherokee Nation should descend in such manner of action and disregard their pledges and agreements.

The Cherokee Nation issued a news release (here) stating that it may appeal the decision.  There is a separate case pending in the United States Federal court.  

Culture Clashes: Books and Movies

Over the last week, I've enjoyed (for want of a more appropriate word) a book and a movie both of which have somewhat similar themes although each is very different.  The book (with thanks to Steven Lubet for recommending it) was Chloe Hooper's The Tall Man which dealt with the first criminal prosecution in Australia of a policeman for an aboriginal death in custody.  It's hard to believe that such a prosecution didn't occur until a few years ago.  And the detail with which the author investigates the Queensland police culture and the aboriginal indigenous culture is really quite impressive.  She obviously had more access to the Palm Island inhabitants and their legal representatives, but she did her best with what she had with respect to other groups involved in the story including police groups and politicians.  She raises lots of inter-racial issues for which there are no easy answers, but the book certainly makes you think. 

I also watched a movie from 2007 which I hadn't heard of before - actually, I think it might have been a Netflix recommendation.  It's called The Visitor and it stars  Richard Jenkins.  The film deals with an unlikely friendship that develops between a dispirited old college professor and a young couple of illegal immigrants who end up living in his New York apartment.  It deals with themes of racial differences, particularly between Arabs and Americans post-9/11 in the immigration context.  It also deals to a small extent with the relationship between the boyfriend and girlfriend in the illegal couple as the woman is from Senegal and the man is from Syria.  The writing, directing and acting are very subtle and understated, but it is still an engaging film that makes you think about immigration, cultural differences, and to some extent what our goals are/should be both personally and on a larger scale.  I really wasn't expecting to enjoy the movie so much, but I would recommend it - again, hardly light holiday viewing, but maybe sometime in the new year...

The Skilling Saga

Those who continue to follow Jeff Skilling's path down the appellate road may find interesting this story from the local newspaper.  A panel of the Fifth Circuit will hear oral arguments in his case today in Houston (interesting court announcement here).  I tried to find the panel composition, with no luck.  A digital recording of the arguments may be available later today (click here if interested).

"Fugitive Justice"

Congratulations to Steven Lubet on his newly released book, Fugitive Justice.  Details of the book are available on the amazon.com webpage here.

Judge Sharon Keller: The Story Continues (but perhaps now concludes)

Continuing the story that we have been posting on for some time (most recently this post from July 17, 2010):   a judicial panel has ruled that the State Commission on Judicial Conduct did not have the authority to issue a "public warning" against Texas Court of Criminal Appeals Judge Sharon Keller.

Story here and here.

New Jersey Privacy/Hate Crime Prosecutions

I've been recently following the case of the Rutgers student who committed suicide last week after videos showing him engaging in a homosexual encounter were posted on the Internet by his roommate and another student.  Of course, the case raises many issues about cyberbullying and invasions of privacy.  But what particularly interests me - and others may be able to illuminate the law on this - is that New Jersey appears to have very strong privacy laws and hate crime laws which enable state prosecution based on both the invasion of the student's privacy and the fact that the conduct may have been motivated by animus against homosexuals.  According to the MSNBC coverage, the hate crime laws come into play at the time of sentencing, rather than as a separate cause of action, to raise the penalty for the criminal conduct under the privacy laws.  This would seem to make the laws easier to enforce than in some other states (and at the federal level) where many hate crime laws require proof of an intent by the perpetrator to cause harm to the victim.  I'm also under the impression than many existing harassment and bullying laws also require a credible threat of immediate harm to the victim.  Thus, New Jersey's approach seems to be particularly stong in comparison.  Does anyone know anything about the history of the New Jersey criminal laws on privacy and hate crime and why they seem to be different to the laws in many other states, assuming I'm correct about that?

Television Cameras Coming to A Federal Courthouse Near You

The judiciary has approved a pilot program to "evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings."  The three year pilot program will be national in scope and will evaluate the effect of cameras in district court courtrooms.  

Jurist has more here.

An Incredible Two Months for Gay Rights Litigation

Although not necessarily the issues that most impact the day-to-day lives of LGBT people in this country, marriage and military service have been at the forefront of the gay rights movement in recent years.  Efforts to reverse discriminatory policies in these areas at the state and federal levels have included legislative, executive, and referendum-based politics.  So far, those efforts have provided, at best, mixed results.

But this year has been a banner year in litigation efforts to advance gay rights in these areas.  Over the course of the past two months, federal district courts in Massachusetts and California have struck down, in chronological order, the federal Defense of Marriage Act, California's Prop 8, and the federal "Don't Ask, Don't Tell" policy.

Before conservatives cry "activist judiciary" in response to these rulings, it would be best to understand just who the judges are who struck down these laws.  As you can see, this is not a list of your usual suspects of activist judges:

Judge Joseph Tauro (D. Mass.):  Judge Tauro wrote the two opinions striking down DOMA.  Before becoming a judge, Judge Tauro was an army lieutenant from 1956 to 1958 and then an assistant U.S. Attorney from 1959 to 1960 and U.S. Attorney in 1972.  He was appointed to the District of Massachusetts by President Richard Nixon and was the chief judge of the district from 1992 to 1999.

Chief Judge Vaughn Walker (N.D. Cal.):  Chief Judge Walker wrote the opinion striking down Prop 8.  Judge Walker was appointed to the bench by President George H.W. Bush on the recommendation of then-U.S. Senator Pete Wilson, a California Republican.  After law school, Judge Walker clerked for Judge Robert Kelleher, a Nixon appointee, on the Central District of California.

Judge Virginia Phillips (C.D. Cal.):  Judge Phillips wrote the opinion striking down "Don't Ask, Don't Tell."  Judge Phillips is a native of Orange County, California, who became a federal magistrate judge in 1995 (meaning she most likely got her first federal judgeship on merits rather than political connections).  She was recommended for an Article III judgeship by Senators Barbara Boxer and Diane Feinstein in 1999.  She was appointed by President Bill Clinton that year and confirmed later in the year by the Senate, which was controlled 55-45 by the Republicans.

It's impossible to claim that, from their backgrounds, these judges are nothing but a bunch of liberal activists on the judiciary.  Rather, it might just be that the banner year this has become for gay rights litigation results from claims that have undeniable merit under a Constitution that protects equality and liberty.

Cross-posted at Feminist Law Professors.

The Silent Prosecutor: When DA's Refuse to Talk to the Media

It looks like I'm getting to substance more quickly than I expected.  I received a call from a reporter today on a legal ethics issue, I'd love to hear comments from the collective wisdom of the blogosphere.

Here are the facts: 

A District Attorney in California has announced that he will no longer return calls from the media or offer public information about pending cases.  The DA claims that media sensationalism in two high profile cases forced a change of venue and his new media policy. 

The reporter wanted to know:

1. Can the DA decide to not talk to the press?  
2. Is the prosecutor obligated to disclose public information?
3. What are the ramifications of this policy?
4. What recourse does the media have?
5. What can the voters do?  

My sense of this is that the prosecutor is on very firm ground.  As most of us know, the criticism that we more frequently hear is that prosecutors are undermining a fair trial by arguing the case in the media.  So from the perspective of fair administration of justice, this could be deemed commendable conduct.  The critique here seems to be grounded in open government principles.  Let me start with the ethical issues. 

First, recall what Justice Holmes wrote over 100 years ago:  "The theory of our system is that the conclusions to be reached in a case will be induced by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."  Patterson v. Colorado, 205 U.S. 454 (1907).   This theory, or principle informs a prosecutor's decisions to speak to the media and protects a defendants rights by ensuring the case hinges on the evidence, not sensationalism. 

Second, it's ethical for a prosecutor to not speak to the press because it's a fairly well settled principle that publicity has an adverse impact on jurors who may try and conform their verdict to public sentiment, rather than the law.  Moreover, in jurisdictions with elected judges, those judges may (improperly) worry about elections or future judicial appointments, especially in high profile cases.   A prosecutor who refuses to talk about pending cases makes it less likely that the case will receive detailed press coverage by not feeding the fire of speculation and arm chair quarterbacking that seems to surround high profile cases.  (Although the unique nature of the prosecutor's silence may ---at least in the early stages of the policy---generate more scrutiny, rather than less). 

Third, witnesses may be hesitant to testify if there is a lot of media attention or they may reassess or even change their testimony in light of other information they hear or read about the trial. 

Separate from these policy considerations and value judgments are rules governing attorney conduct.  The Model Rules of Professional Conduct, Rule 3.6 which is substantially similar to California Rule of Professional Conduct 5-120, Trial Publicity directs (I'm paraphrasing throughout this post) that a lawyer "who is participating or has participated in the investigation...of a matter" may not make out of court statements that the lawyer knows will have a likelihood of prejudicing the case.  This doesn't prevent the prosecutor from making statements, but it does inform the prosecutors judgment in what to say if he or she chooses to speak.  Furthermore, the rules explicitly allow (but don't require) attorneys to make statements in seven circumstances. 

The prosecutor may make statements about:

1. the claim, offense or defense involved and the identity of the persons involved
2. info in the public record
3. the fact that an investigation is in progress
4. the schedule of the investigation and trial
5. the fact that assistance in obtaining evidence or information is needed
6. a warning of danger concerning the behavior of a person involved, when there is reason to believe there is a risk of harm to the public or an individual
7. the prosecutor may also release info related to:  i) the identity, residence, occupation and family status of the accused; ii) if the accused is at large, info needed to apprehend that person; iii) the fact, time and place of arrest; iv) the identity of investigating and arresting officers or agencies. 

On the flip-side, the commentary to the Model Rules also state what are essentially "no go" statements that are "more likely than not to prejudice" a criminal case.  Those are statements about:

1. the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
2. the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
3. the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be present;
4. any opinion as to guilt or innocence of a suspect
5. information that the lawyer knows or should know is likely to be inadmissible if disclosing it would prejudice an impartial trial;
6. the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and the defendant is presumed innocent until and unless proven guilty. 

Ultimately I told the reporter that it seems that the ramifications of this policy are more fair trials and a lot more work for members of the media, and the only critique is grounded in open government principles.  (I'm guessing he didn't like that comment).  The media does not have much recourse other than critiquing the policy on the grounds that this is contrary to principles of accountability and transparency.  However, the needs for open government do not outweigh the defendant's right to a fair trial.  Of course, the voters can exercise the greatest influence over the DA's judgment by voting him out of office, or making such an issue of this that he rethinks his self imposed gag order.  But short of those democratic means of persuasion, I don't see much that supports the media's case. 

Am I missing something here? 

 

Criminal Justice System Readings

For those who might be looking for books to assign to new law students interested in getting some accessible background perspectives on the criminal justice system, I would recommend two recent publications of the New Press.

The first is Let's Get Free by Paul Butler.  Butler is a prof at GW Law and has previously been a federal prosecutor.  He provides interesting perspectives on the criminal justice system both from the point of view of a federal prosecutor and as an African-American.  The book is short and accessible and can easily be read in a day - it's actually kind of hard to put down.  It's a great introduction to racial issues in the system, how new technologies might impact on future criminal processes, and what criminal procedure might learn from Hip Hop culture.

Another good book is Lynn Powell's Framing Innocence.  This is an account of a situation some years ago in Ohio where criminal (child pornography) charges were brought against a woman, Cynthia Stewart, who had taken nude photographs of her 8 year old daughter in the bathtub.  The book is written by Stewart's friend and neighbor, Lynn Powell, who conducted detailed interviews with many of those involved in the proceedings.  Again, this is an easy read that is hard to put down.  It shows up issues inherent in the criminal justice system and Child Services system involving family law, constitutional law and criminal law - and addresses the difficulties of fairly enforcing criminal laws based on "community standards" of unacceptable behavior.

Both of these books look at the law and legal processes from different perspectives and both would be engaging reading for those embarking on a legal career.

Lying and Consensual Sex

I was listening to an NPR broadcast at lunchtime today and was struck by a talkback portion of the show dealing with a case in Israel where a man was sentenced to an 18 month jail term for rape in Israel because he had lied to a Jewish woman to convince her to have sex with him - he told her he was Jewish when, in fact, he was an Arab.  The judge in the case referred to his conduct as "rape by deception".  BBC story here.

What was particularly interesting to me was listening to a panel of non-lawyers talking about how they perceived the definition of rape.  Most of the talkback part of the show focused on things like the perceived necessity of physical violence to support a rape conviction and/or various social definitions of fraud.  During the time I was listening to the show, no one - not even the host - talked about the concept of "consent" to sex, or discussed whether the sexual act could be meaningfully "consensual" in situations where one party has lied to the other to convince them to engage in sexual activity.  Am I missing something or shouldn't this have been an important part of the discussion?

Incidentally, one person who called into the show made an analogy between lying to someone to get them to have sex and slipping drugs into the person's drink in order to induce them to have sex.  Interesting analogy, but I'm not sure that it works on close examination.  The drug situation physically removes a person's ability to make clear decisions, whereas the lying situation leaves the "victim's" natural ability to analyze the situation intact, but presents the victim with false information.  Is this significantly different or not?