Ask ChatGPT: What rights do you lose if you are charged with a felony?

This question came up in a conversation about an hour ago. No need to give you details :)

It seems to fit in with our conversation today about the need to educate people in order to preserve civil liberties. Many rights and liberties are lost however if someone is charged - not even found guilty - of a felony. 

You become a second class citizen.

The problem with this answer is that it does not distinguish between being charged with a crime and being convicted of a crime, so it doesn't accurately answer the question I asked. 

Check it out: 

If you're charged with a felony, several rights may be affected, depending on the jurisdiction and whether you're convicted. Some of the common rights lost or restricted after being charged or convicted of a felony include:

1. Right to Vote: In many states, individuals convicted of felonies lose the right to vote while incarcerated, and in some cases, even after they have completed their sentence or parole. The rules vary by state.

2. Right to Own Firearms: A felony conviction generally prohibits you from purchasing or possessing firearms. This is a federal law, though some states may allow certain rights to be restored after a period of time or through a pardon.

3. Right to Serve on a Jury: Felony convictions can disqualify you from serving on a jury. This is based on the belief that convicted felons may have biases or credibility issues in determining the facts of a case.

4. Right to Hold Certain Jobs: Some careers, particularly in government or law enforcement, may be unavailable to individuals with felony convictions. Licensing for certain professions, such as healthcare, law, or education, can also be restricted.

5. Right to Receive Government Assistance: Convicted felons may be ineligible for certain government benefits, such as food stamps (SNAP), public housing, or student loans. Some restrictions may vary depending on the type of felony.

6. Right to Travel: Convicted felons may face restrictions on international travel, especially if they are on probation or parole. Certain countries may also deny entry to individuals with felony convictions.

7. Right to Access to Public Services: Some states have laws restricting access to public services, such as certain public housing programs, for those with felony convictions.

8. Parental Rights: In certain situations, felony convictions, especially those involving abuse, neglect, or violence, can result in the loss of parental rights or restrictions on custody and visitation.

These restrictions are often tied to the conviction itself or the completion of certain conditions (like parole or probation). In some cases, felons may have the opportunity to restore certain rights through legal processes such as pardons or expungements, but this depends on local laws.

_____

If you are up for it: 

AskChatGPT: 
- When were individual rights first recognized?
- Do all citizens have the same rights and liberties?
- Do citizens and non-citizens have the same rights and liberties in the United States?

Think of a few.

What is a pre-sentencing hearing?

It happened to Trump on 6/10/24. 

- Trump completes mandatory presentencing interview for hush money conviction.

For more: 

- From the Southern District Court of Texas: Presentence Investigation.

- From Brazoria County: Pre-sentence Investigation Reports 

- The U.S. Probation Office Western District of Texas: The Presentence Report.

Links to the original penal and criminal procedure codes in Texas

From 1857, both adopted by the 6th Session of the Texas Legislature and printed up in Galveston.

From the Texas Reference Library:

 In 1854 the fifth Legislature passed an act requiring the Governor to appoint a commission to codify the civil and criminal laws of Texas. The Commission proposed four codes, but only the Code of Criminal Procedure and the Penal Code were adopted by the Legislature. They are commonly referred to as the Codes of 1856 or the Old Codes.

It would be worth comparing these with the current versions.

- Penal Code

- Code of Criminal Procedure.

From the Dallas News: How police felt stonewalled by Dallas Diocese at every turn in sex abuse investigation

An example of due process, specifically a search and seizure. The back and forth between Dallas police and the Diocese interests me.

- Click here for the article.

An affidavit Dallas police used to obtain a search warrant Wednesday to raid Dallas Catholic Diocese offices laid out allegations against five priests and suggested the church subverted police efforts to obtain more information.

The affidavit, signed by Detective David Clark, who is working full-time on sex abuse allegations within the Diocese, sought to seize Diocese records because the church hadn’t handed over all the records it had about allegations against the priests.

All five priests are on the Diocese’s list of 31 “credibly accused” priests, which the church released in January. That list included only accusations against priests that the Diocese concluded were credible after a review by former law enforcement officials and the Diocean Review Board.

From the Texas Tribune: U.S. Supreme Court rules in favor of Texas death row inmate

For our look at federalism and civil liberties in both 2305 and 2306.

The case is Moore v Texas.


- Click here for the article.

The U.S. Supreme Court ruled in favor of a Texas death row inmate Tuesday, sending his case back to the appeals court and invalidating the state's current method of determining if a death-sentenced inmate is intellectually disabled and therefore ineligible for execution. Texas' method relies on decades-old medical standards and a controversial set of factors.

The high court's 5-3 ruling in the case of Bobby Moore, a 57-year-old man who has lived on death row for more than 36 years, said Texas’ refusal to use current medical standards and its reliance on nonclinical factors violates the Eighth Amendment, which prohibits cruel and unusual punishment. Justice Ruth Bader Ginsburg wrote the opinion, with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissenting.

As the court has previously instructed, "adjudications of intellectual disability should be ‘informed by the views of medical experts.’ That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus," Ginsburg wrote.

. . . In 2014, a Texas state court used current medical standards to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 as well as several other factors to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on those factors, that Moore doesn’t have the disability.

Included in those factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie should be exempt from execution. The state has argued the reference was an “aside;” critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

For more:

- Scotusblog: Moore v Texas.
- The decision.
- Oyez: Moore v Texas.

From Slate: Should Police Bodycams Come With Facial Recognition Software? A technology embraced to protect citizens could have major civil liberties implications.

The latest from the intersection of technology and civil liberties.

How are due process and privacy rights secured in during a time when its so easy to identify and track people?

- Click here for the article.

Imagine you’re at a large protest, thousands of demonstrators gathered. Police stand nearby, tasked with protecting those speaking out and maintaining safety. At each officer’s chest, a red light shows a body camera is recording, ensuring the officers do not engage in improper conduct. But what if that red light also meant a program was scanning, recording, and cataloging the face of every person in the crowd. Would you feel safe?

It would be a sad irony if police body cameras, brought into communities to check police power, became tools that improperly expanded it. But as they are rapidly being deployed in cities across the country, often without clear policies designed to protect privacy, we may be failing to fully consider the risks of pervasive surveillance these devices pose. And in addition to existing concerns, a huge new issue is rapidly approaching: body cameras that use facial recognition technology.

And body cameras that incorporate facial recognition technology are certainly on the horizon. This summer Taser International, by far the nation’s biggest producer of police body cameras, announced plans to incorporate facial recognition technology into its cameras in the future. And so far, not a single city places adequate limits on its use. Even if these enhanced technologies don’t lead to a world where “every cop will be RoboCop,” as Taser vice president Steve Tuttle once suggested, we need to talk about the real ways in which facial recognition devices could be used—and misused—and what limits should be put on their use.

. . . The least controversial use of facial recognition would be to identify individuals in relation to emergencies—setting police cameras to scan the city for the face of a missing child or a suspect in an ongoing kidnapping during an Amber Alert, for example, or for an active shooter. It’s hard to imagine persuasive objections to this specific use of the technology, since responding to an imminent threat is a commonly accepted exception to Fourth Amendment rules that generally require warrants for certain police action.

Law enforcement agencies might also use this biometric data to try to identify other fugitives at large in nonemergency situations—sending out face prints of individuals that have outstanding arrest warrants to body cameras, which could then scan police footage for chance matches. Such a system could take “Most Wanted” posters into the 21st century and help catch dangerous fugitives much more efficiently. The requirement of an active warrant would also give judicial oversight to the technology’s deployment.

. . . Beyond ability to target anyone with an outstanding warrant, this technology could also offer a powerful new means for location tracking and monitoring of the entire public. Law enforcement agencies commonly use location tracking for investigations—following an individual in public, attaching GPS tracking devices to cars, or obtaining cellphone locations from telecommunications companies, for example. But each of these methods requires intensive resources or, with some methods, a warrant.

By enhancing police-worn body cameras with facial recognition technology, beat cops themselves could be turned into a citywide mass automated tracking tool. But without judicial oversight, location tracking will not necessarily be limited to suspected wrongdoers. Law enforcement could use the technology to identify, monitor, and intimidate individuals involved in nonillicit activities absent any judicial review or prior arrests.

Most disturbingly, this could occur not only by tracking an individual, but also by targeting sensitive locations or events. Think if police were able to review body camera footage and use facial recognition to catalog every participant in a protest or every person that walked into a local mosque. Facial recognition and body cameras could quickly create a much more powerful, digital version of J. Edgar Hoover’s secret “enemies” lists.

Argued today in the Supreme Court: Buck v Davis

We discussed this briefly in 2305 today. Its - another - due process / death penalty / racial discrimination / ineffective counsel case from Houston.

- Click here for info about the case from ScotusBlog.

The defense attorney admitted evidence from a psychologists that sent his client to death row. The psychologist argued that the defendant was likely to be dangerous in the future because he was African-American. That raises its own set of issues, but the case seems to primarily be about effective counsel, and whether

Here's the narrow issue presented to the court:

Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.

For more: Justices to consider role of racial bias in death penalty case.

A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.

A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.

Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death.

The procedural history of Buck’s case is, to put it mildly, complicated. After his conviction and death sentence were affirmed on appeal, Buck (now represented by a new lawyer) filed a motion for post-conviction relief in the Texas courts. However, the motion did not challenge the decision by Buck’s trial counsel to introduce Quijano’s opinion that, because of his race, Buck was more likely to be dangerous in the future.

A year after the post-conviction motion was filed, Texas filed a brief in the U.S. Supreme Court in which it conceded that similar statements by Quijano in another capital case violated the defendant’s “constitutional right to be sentenced without regard to the color of his skin,” and that the references to race in the defendant’s sentencing “seriously undermined the fairness, integrity, or public reputation of the judicial process.” In a press release in June 2000, the Texas attorney general announced that his office had identified six other cases – including Buck’s – in which Quijano had testified about future dangerousness based on race. The attorney general also indicated that the state would not object if the inmates in those cases “seek to overturn the death sentences based on” Quijano’s testimony.

For even more:

- Texas lawyer who never won a capital murder case calls it quits defending 'the very worst' clients.
- Texas Ends Deal With Psychologist Over Race Testimony.

And what is a Certificate of Appealability anyway?

From Politifact: Donald Trump and Lester Holt clash over whether stop-and-frisk is constitutional in New York

More detail regarding an issue brought up in Monday's debate.

Turns out Trump and Holt are kinda right and kinda wrong.

For 2305 this illustrates the role of the federal courts in overseeing local policing, and it touches on the 4th Amendment, due process, equal protection, constitutional interpretation among other topics. For 2306, this helps us look ahead to criminal justices and the local use of police powers, in addition to federalism.

- Click here for the article.

As it turns out, Holt and Trump are both a little bit right and a little bit wrong. But Trump's more wrong than Holt.

Stop-and-frisk is the practice of a police officer stopping and questioning a person (the stop), then patting the person down for weapons (the frisk). Stops and frisks are legal, in New York and everywhere else.

In its decision in the 1968 case Terry vs. Ohio, the Supreme Court ruled 8-1 that an officer can legally stop a person if the officer has reasonable suspicion that criminal activity is afoot. And if the officer has a reasonable suspicion that this person is armed, he or she can legally frisk the person for weapons. Because of that reasonable suspicion standard, the court said these stops would be consistent with the Fourth Amendment, which protects against unreasonable search and seizure.

A 2013 case before the U.S. District Court in Manhattan, Floyd vs. City of New York, raised the issue of the constitutionality of New York City’s stop-and-frisk policies between 2004 and 2012.

Judge Shira Scheindlin found that New York City had been conductingunconstitutional stops and frisks on two grounds: Officers were stopping and frisking people without reasonable suspicion, in violation of Terry and the Fourth Amendment; and a disproportionate number of those stopped and frisked were minorities, in violation of the equal protection clause of the 14th Amendment.

"Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites," Scheindlin wrote in her opinion. "For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

So Holt was right to note that a court found New York City had an unconstitutional stop-and-frisk policy because police had been disproportionately targeting black and Hispanic people.

But the Floyd case was specific to New York City’s particular way of conducting stops and frisks between 2004 and 2012. Scheindlin did not rule all stops and frisks unconstitutional, and her findings were consistent with the Supreme Court’s decision in Terry. Scheindlin ruled that New York City could continue to conduct stops and frisks as long as they made some changes.

"Stop-and-frisk was not outlawed," said Andrew Schaffer, former deputy commissioner for legal matters for the New York Police Department and an adjunct professor at New York University Law School. The ruling only sought to correct a supposed problem of officers making stops without a reasonable suspicion of criminal activity and disproportionately stopping black and Hispanic people.

Schaffer added, "The Floyd decision in New York did not and could not overruleTerry."
"The judge made it very clear that she was not finding stop-and-frisk as a general practice unconstitutional," said David Rudovsky, a leading civil rights attorney and senior fellow at the University of Pennsylvania Law School.

So Holt’s claim — "stop-and-frisk was ruled unconstitutional in New York" — isn’t quite precise because it makes it seem as if the judge decided that all stops and frisks were unconstitutional in New York, when really her ruling said New York had to stop and frisk differently. New York cops still stop and frisk today.

But it also isn’t quite correct for Trump to call Holt’s claim "wrong" because that implies there was no finding of unconstitutionality in New York’s practices or that Scheindlin’s ruling was tossed out, when really it still stands.

From the Washington Post: Fifty years later, the Miranda decision hasn’t accomplished what the Supreme Court intended

For out look at civil liberties - as well as the power (or lack thereof) of the courts.

- Click here for the article.

Fifty years ago today, the Supreme Court handed down the landmark case Miranda v. Arizona. The decision requires police to inform suspects of their constitutional rights to remain silent and obtain an attorney before being questioned.

Miranda remains perhaps the most well-known case in criminal law, thanks in no small part to such TV shows as “Law and Order” and movies like “21 Jump Street.” But that’s a bit like saying the electoral college is widely familiar. Most Americans know it’s important, but they are a little fuzzy on the details.

So, in honor of the anniversary, here are two underappreciated sides to Miranda.

1 - Miranda is an important test of how much power and influence the Supreme Court actually has.

2 - But the Supreme Court’s achievements in Miranda may be less than meets the eye

For a look at the case itself click here for Oyez's page on it.

And a few other cases related to the rights - which conservatives have been trying to overturn for years.

- The right to remain silent, brought you by J. Edgar Hoover and the FBI.
- Miranda rights for children?
- You have a right to a lawyer — but can’t assert it yet.

From Texas Lawyer: Report Recommends More Prosecutor Oversight

I came across this story while following up a few searches related to the story below about the lack of ex-defense attorneys on the Supreme Court. One of the cases mentioned - Brady v. Maryland - established that it was unconstitutional for prosecutors to withhold exculpatory evidence from defense attorneys in a trial. But it still happens.

The article points out that there are no mechanisms in place to force the issue. This points out that just because the courts rule on something, there is no necessary reason to believe that the decision will be enforced - which points to a basic weakness of the judicial branch.

- Click here for the article.

Even when prosecutors engage in intentional misconduct to win convictions, there are nearly no government systems to hold them accountable, according to a new report by the New-York based Innocence Project.

"Our investigation revealed a severely inadequate, essentially non-functioning external disciplinary process and a problematic lack of transparency," said the March 29 report, "Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson."

The report said that most prosecutors do their jobs in good faith, wanting to fulfill their constitutional and legal obligations. But they're subject to stress, demanding jobs, biases and other human realities, it said. Mistakes occur and in rare cases, a prosecutor commits deliberate violations and it leads to a wrongful conviction.

Among other things, the researchers studied judicial findings and attorney disciplinary cases about prosecutorial error and misconduct between 2004 and 2008 in Texas, Arizona, California, Pennsylvania and New York. They found 660 cases where courts identified prosecutorial misconduct. The errors were harmless in 527 cases, but they were harmful and lead to reversals in 133 cases. Only one of those prosecutors was disciplined.

. . . The report made recommendations to improve oversight over prosecutors.
One set of recommendations is aimed at prosecutors' offices. They should have written policies about discovery and other defendants' rights matters; provide more ethical training to prosecutors; create internal review procedures to find misconduct; file annual reports that identify errors and misconduct; and make sure to correct such problems during a prosecutor's annual employee review.

Other recommendations are for the courts. Judges should issue orders requiring prosecutors to produce all mitigating or exculpatory evidence and require that prosecutors certify that they've asked law enforcement for favorable evidence. Judges should be reporting instances of prosecutor misconduct and error, and state supreme courts should enforce reporting requirements.

Some of the recommendations are for state bar disciplinary authorities. It should be easier for claimants to make grievances about prosecutor misconduct and ineffective assistance of defense counsel, the report said. When a court finds unethical behavior by a prosecutor, a disciplinary committee should automatically file an ethics complaint.

Among other recommendations, the report said that states should pass open-file laws, like in Texas, requiring prosecutors to share most evidence with defense lawyers. An independent state agency should have oversight over prosecutors. It also suggests that lawmakers should pass legislation to limit prosecutors' immunity from civil lawsuits.

Some related material:

- Do Supreme Court Justices Understand How Prosecutors Decide Whether to Disclose Exculpatory Evidence?

From Grits for Breakfast: Bail reform roundup

The quality of criminal justice for the poor in Texas has become a sudden theme. Is bail being used for the right reason? Another item likely to be on the agenda of the next session of the Texas legislature.

- Click here for the post.

See a writeup from a symposium at UH-Law School symposium held earlier this year titled "Police, Jails, and Vulnerable People: New Strategies for Confronting Today's Challenges." They've published fairly detailed notes from the event and videos of each speech and panel. From the release:

Texas state Sen. John Whitmire, D-Houston, gave a keynote address expressing strong support for bail reform in the next legislative session. "Bail is not supposed to be punishment," he said. "It is to make sure you show up." He argued that people charged with low-level, nonviolent offenses should not be jailed simply because they are poor, and that jail should be reserved for dangerous people. Whitmire, chairman of the Senate Criminal Justice Committee, said bail reform would be his "highest priority next session," adding that he would have "zero tolerance" for jail suicide.

The Texas A&M Public Policy Institute is conducting a study of pretrial practices in Travis and Tarrant Counties for the Judicial Council, reports UH law prof Sandra Guerra Thompson. The report is due out later this year. Lynda Frost of the Hogg Foundation had an op ed in the McAllen Monitor in which she declared, "The pretrial process does not need to be a trap into which low-income people with mental illness disproportionately fall."

From the Atlantic: A Near-Epiphany at the Supreme Court: The justices come close to recognizing the perilous state of the American public-defense system.

The case was Luis v. United States.

- Here's what Scotusblog has to say about it: Click here.

- And here's what Oyez has: Click here.

The question in the case: Does the pretrial restraint of assets that are not directly related to the crime at issue and are needed to retain counsel of choice violate the defendant’s Fifth and Sixth Amendment rights?

And the holding: The pretrial freeze of a criminal defendant's legitimate, untainted assets violates the Sixth Amendment right to counsel of choice.

- Click here for the Atlantic article.

In a 5-3 decision in Luis v. United States on Wednesday, the U.S. Supreme Court forbade the government from seizing legitimate funds defendants could use to hire a lawyer of their choice. Along the way, the justices came close to asking a more troubling question: Does America’s underfunded public-defender system meet the Sixth Amendment’s standards for adequate legal counsel?

The case itself had nothing to do with public defenders, at least on the surface. Sila Luis, who brought the appeal before the Court, was indicted for federal health-care fraud to the tune of $45 million in 2012. Luis had $2 million in assets when a federal grand jury indicted her; she said she hoped to use the funds to pay for her legal defense.

But prosecutors sought a court order barring her from using any of her funds—even those wholly unconnected to the crime—in hopes of acquiring them after conviction for restitution and possible criminal penalties. Luis argued that seizing those untainted funds would violate her Sixth Amendment right to seek assistance of counsel of her choice. Lower courts disagreed, so she appealed the order to the Supreme Court, which agreed to hear the case last year.

Five justices agreed on the ruling itself: The Sixth Amendment forbids the government from seizing untainted assets before trial when defendants need those assets to hire lawyers of their choice. Four of them, led by Justice Stephen Breyer, ruled the right to counsel of choice outweighed the government’s interest in restitution and fines. Justice Clarence Thomas supported the result but saw a clear command from the Sixth Amendment instead of a balancing act.

In his plurality opinion, Breyer expressed alarm at the right-to-counsel implications in the government’s position. “How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer—particularly if they lack ‘tainted assets’ because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect?” Then he made an interesting divergence. Indeed, what would happen if Luis and others like her could no longer afford to pay for a lawyer?

“These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders,” he continued. “As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. And as one amicus points out, ‘[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources.’”

“The upshot,” Breyer concluded, “is a substantial risk that accepting the Government’s views would—by increasing the government-paid-defender workload—render less effective the basic right the Sixth Amendment seeks to protect.”

From CityLab: The Death of Jeffrey Pendleton: A homeless man was found dead in a jail cell in Manchester, New Hampshire. What killed him? The criminalization of poverty.

Something to think about as we cover the due process of the law. I posted a similar story below about whether we have de facto debtor's prisons in the United States. Do criminal justice procedures place additional burdens on the poor?

Might low pay be a civil rights issue?

- Click here for the article.

New Hampshire has no state-set minimum wage, so it abides by the federal government’s woefully low $7.25 per hour rate. State legislators killed bills last month that would have established state-issued minimum wages—livable wages. It can’t be ignored that Pendleton would probably still be alive if he made enough money to afford his bail.
 The federal government has recently come to accept that that the criminal justice system’s policies around bail and court fines are exacerbating the nation’s poverty and incarceration crises.

“When bail is set unreasonably high, people are behind bars only because they are poor,” said U.S. Attorney General Loretta Lynch at a White House convening last December. “Not because they’re a danger or a flight risk; only because they are poor.”

After dressing down Ferguson, Missouri, for the city’s reliance on fining low-income residents into jail and to death, the U.S. Justice Department realized that Ferguson was no anomaly. Many cities and their court systems have been imposing exorbitant fines and fees on people who’ve been arrested for the pettiest of crimes, like jaywalking. Lynch said at the White House in December that it has become “painfully clear” that “in so many instances, an individual’s access to justice has become predicated on their ability to literally pay for it.”

This point is made more disturbing by the fact that cities are increasingly using criminal justice debt—court fines and fees—to service municipal debt, with low-wage individuals bearing the brunt of these economic burdens. A report from the White House’s “Council of Economic Advisors on Fees, Fines, and Bail” points out the ways this has built up over time:

From Vox: Being sleep-deprived makes people much more likely to give false confessions

For our look on GOVT 2305 at civil liberties and the due process of the law. I'm unaware of appellate decisions - or anything from the Supreme Court - related to sleep deprivation.

- Click here for the article.

Why in the world would someone confess to a crime he didn't commit?
It's a baffling question that has long confounded the criminal justice system. Confessions are powerfully convincing evidence for juries — but false confessions are also relatively common. According to the Innocence Project, one in four people who have been exonerated for crimes they didn't commit confessed to that crime.

Psychologists have documented several reasons this might occur. The big one is that interrogating police officers can impose their suggestions on suspects: "We have evidence proving you were there!" "Your fingerprints were found!"
But there may be another reason people will confess even when they're innocent: They're exhausted.

Law enforcement "really needs to be super careful when a person is being interrogated after they have been up a long time," says Elizabeth Loftus, a co-author on a new study on sleep deprivation and false confessions in theProceedings of the National Academy of Sciences.

According to Loftus's study, the majority of false confessions occur when interrogations last more than 12 hours. That fact made her and her colleagues wonder: How much of a role does sleepiness play? Sleep deprivation, after all, is awful for the body and mind, decreasing our abilities of reason and judgment.

For items related to the Supreme Court and false confessions:

- Implications of a Supreme Court Ruling for False Confessions. 
- False and Coerced Confessions.
- Overturned Conviction Upheld in False Confession Case.

Due process in the news

A few cases related to terms you should be familiar with.

Probable Cause:

- Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home. 

In April 2012, a Kansas SWAT team raided the home of Robert and Addie Harte, their 7-year-old daughter and their 13-year-old son. The couple, both former CIA analysts, awoke to pounding at the door. When Robert Harte answered, SWAT agents flooded the home. He was told to lie on the floor. When Addie Harte came out to see what was going on, she saw her husband on his stomach as SWAT cop stood over him with a gun. The family was then held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn't find any such operation. So they switched to search for evidence of "personal use." They found no evidence of any criminal activity.

Search Warrants:

- U.S. Supreme Court considers legality of DUI breath tests.

The U.S. Supreme Court is considering whether a person can be charged with a crime for refusing a breath, blood or alcohol test if the police do not have a search warrant in what could have huge implications for drunk driving cases.

Aaron Delgado, a criminal defense attorney in Daytona Beach, said that he is anticipating the U.S. Supreme Court’s ruling is going to benefit about 50 clients he is defending in DUI cases. Delgado said a breath, blood or urine test is a search and people are protected against searches by the Fourth Amendment. “If the police came to your house and wanted to search and you said, ‘Gosh no, I’m sorry. You can’t come in without a warrant and I’m not going to answer any questions without a lawyer,’ they couldn’t use that against you,” Delgado said. “But in the case of a DUI they can and there’s no real difference legally between those two.”

Grand Jury Indictments:

- Backlash against Tamir Rice shooting decision. Are grand jury reforms ahead?

After the Cuyahoga County Prosecutor's Office announced on Monday that a grand jury did not indict the officer who fatally shot Tamir Rice, age 12, online backlash was immediate, reflecting deep divides over the fairness of the US justice system for African Americans.

"Tamir Rice was not on trial, but he might as well have been," the Huffington Post's Daniel Marans wrote, reflecting many observers' view that the boy's size and race fueled officers' decision to shoot him within two seconds of arriving at a park, where they were responding to a 911 call about a young man pointing a "probably fake" gun at others.

Self Incrimination:

- Defendant’s Platinum Teeth Not Protected by Self-Incrimination Clause.

Ramon Gonzalez was required to show the jury his platinum teeth during his trial for battery against a fellow jail inmate. Recently, the state Supreme Court rejected Gonzalez’s argument that this violated his right against self-incrimination. The victim had testified that one of his attackers had platinum teeth. In general, defendants have a constitutional right to avoid “testifying” in response to questions that could self-incriminate, a right under both the U.S. and Wisconsin constitutions. Although Gonzalez was not “testifying” when he showed the jury his teeth, he argued that his teeth had a testimonial aspect – they conveyed a negative message by looking “fierce” – and physical evidence with a testimonial aspect is constitutionally protected.

Due Process:

- Here's Why the ACLU Is Suing the Government over the No-Fly List—and Winning.

Last night, President Barack Obama made it abundantly clear in his speech that his administration is behind the push to deny guns to those who show up on federal no-fly lists. He said, "Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security." 

Obama, a constitutional scholar, knows full well about this little thing called "due process," which prohibits the government from simply depriving people of their rights on the basis of just official suspicion. And he also knows full well that the lack of due process with the no-fly list is causing the Department of Justice and the Department of Homeland Security some serious legal headaches. It's not the National Rifle Association (NRA) that's keeping the administration from depriving people on the no-fly list their rights; it's the American Civil Liberties Union (ACLU).

Double Jeopardy:

- 'Affluenza' teen caught, but will he get off easy?

Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years of probation for a 2013 drunk driving crash that killed four people. Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy. As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday.

. . . The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."

Takings Clause:

- SCOTUS Orders Just Compensation for a Regulatory Taking: Agency Regulations Could Endanger the Public Fisc.

The United States Supreme Court (SCOTUS) today ruled inHorne v. Department of Agriculture that the government must give just compensation for personal property actually taken in agency price support programs. Horne clarifies how the United States Constitution’s “Just Compensation” or “Takings” clause limits one regulatory program. Future litigation applyingHorne’s teachings to other agency regulations may foist the government on the horns of a regulatory or fiscal dilemma.

Confrontation Clause:

- The Supreme Court Splinters Apart Over the Confrontation Clause.

The United States Supreme Court Monday morning, in a relatively simple case about the scope of the Confrontation Clause, displayed virtually all the dysfunction the justices' most vocal and powerful critics ever could realistically contemplate.

The case, styled Williams v. Illinois, generated no fewer than four separate opinions, no clear and meaningful majority ruling, and another plain-spoken dissent from Justice Elena Kagan, who called out her colleagues for "endorsing a prosecutorial dodge."
Here's the dodge: At Sandy Williams' Illinois rape trial in 2006, a trial held without a jury, prosecutors got an expert witness to testify that there was, indeed, a DNA "match" between samples from Williams and from the victim. However, the witness against Williams that day was not the laboratory analyst who had compiled the scientific information upon which the testimony was based. The incriminating trial testimony came instead from a "state-employed scientist" who had no relationship whatsoever with the contents of the report.

Right to Counsel:

- Right to counsel doesn't require 'perfect advocacy,' SCOTUS says; murder conviction is reinstated.

Lawyers for a criminal defendant were not constitutionally required to predict the demise of bullet analysis that was once widely accepted, the U.S. Supreme Court ruled this week in a per curiam opinion.

The Oct. 5 decision (PDF) reinstates the murder conviction of James Kulbicki, convicted for the 1993 fatal shooting of his mistress, the Baltimore Sun reports. Maryland’s top court had cited ineffective assistance of counsel when it overturned Kulbicki’s conviction.

Cruel and Unusual Punishment:

- Cruel and Unusual Punishments Before the Supreme Court.

On Tuesday the Supreme Court heard cases involving the two most extreme punishments in the American criminal justice system: life without the possibility of parole and the death penalty. The capital case comes to the justices, as it often does, from Florida. Only last year the court struck down the state’s rigid, unscientific law that tried to skirt around the court’s ban on executing intellectually disabled people.

This time the issue is the jury’s role in capital sentencing. Florida, alone among the states and the federal government, allows a non-unanimous jury to vote for a death sentence — which is why a man named Timothy Lee Hurst sits on the state’s death row even though five of the 12 jurors in his case voted against the death penalty.

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What was Lochner v New York?

It was a case the inferred that a right of contract existed within the scope of due process clause of the Constitution and that this was sufficient for the U.S. Supreme Court to overturn a New York law establishing a 60 hour work week.

We will discuss these further in class, but these are links relevant to the story. Not only do they touch on issues related to a specific era of American constitutional history, it may foreshadow where we may be going in the near future.

- Click here for the Wikipedia on Lochner v New York.
- The Lochner Era.
- Why the consensus against Lochner v. New York is beginning to fray.

From Radley Balko: Sorry about your time on death row, pal. Nothing we can do.

I've posted a few things on the problem the innocence of a convicted felon poses for the Texas criminal justice system. Here's another - though it is targeted to the problem nation-wide. It turns out that it is very difficult for prosecutors to be held responsible for misconduct.

- Click here for the article.

If you’ve been wrongly convicted through prosecutorial misconduct, there are a few ways you can try to hold the government accountable. The most obvious way would be to sue the prosecutor himself. This is just short of impossible. Anything a prosecutor does in his official capacity is protected by absolute immunity — a mighty, nearly impenetrable shield created by the Supreme Court in the 1970s. Your best hope is if your prosecutor committed the misconduct while acting as an investigator — that is, while performing tasks more associated with policing than with prosecuting. If so, your prosecutor would then be protected “only” by the qualified immunity the courts have given to police. But even that is still a pretty high bar to clear.

You could also try to sue the municipality that employs your prosecutor. It’s called a Monell claim. But this, too, is difficult. You’ll have to show that not only did your prosecutor commit misconduct that violated your constitutional rights but there’s also a system-wide pattern or practice of misconduct in that particular jurisdiction. It isn’t enough merely to show that your prosecutor did this to you. You’ll likely to need to show that other prosecutors in the same office did similar things to other people.

Since judges and prosecutors probably aren’t going to open the files of other cases for you, winning a claim like this is likely to happen only once other people have already shown misconduct from the same office and, presumably, hadn’t yet found enough examples to establish a pattern. If the misconduct is bad and persistent enough, presumably at some point — a point that isn’t really clear but appears to be wholly up to the subjective interpretation of whatever federal judge happen to hear your case — enough people will have shown enough misconduct to establish a pattern. Provided you include them all in your claim. But no matter how many cases come after, those people who filed first, and lost, probably won’t get to have their cases heard again.

From the Washington Post: Department of Homeland Security cancels national license-plate tracking plan

Here's some good news:

Homeland Security Secretary Jeh Johnson on Wednesday ordered the cancellation of a plan by the Immigration and Customs Enforcement agency to develop a national license-plate tracking system after privacy advocates raised concern about the initiative.

The order came just days after ICE solicited proposals from companies to compile a database of license-plate information from commercial and law enforcement tag readers. Officials said the database was intended to help apprehend fugitive illegal immigrants, but the plan raised concerns that the movements of ordinary citizens under no criminal suspicion could be scrutinized.

The data would have been drawn from readers that scan the tags of every vehicle crossing their paths, and would have been accessed only for “ongoing criminal investigations or to locate wanted individuals,” officials told The Washington Post this week.

“The solicitation, which was posted without the awareness of ICE leadership, has been cancelled,” ICE spokeswoman Gillian Christensen said in a statement. “While we continue to support a range of technologies to help meet our law enforcement mission, this solicitation will be reviewed to ensure the path forward appropriately meets our operational needs.”

Lawmakers and privacy advocates reacted with approval.

The best advice you'll get in this class

And a preview of what you'll look through in the section on civil liberties.

An Ex-Cop's Guide to Not Getting Arrested.

Dale Carson is a defense attorney in Jacksonville, Florida, as well as an alumnus of the Miami-Dade Police Department and the FBI. So he knows a thing or two about how cops determine who to hassle, and what all of us can do to not be one of those people. Carson has distilled his tips into a book titled Arrest-Proof Yourself, now in its second edition. It is a legitimately scary book—369 pages of insight on the many ways police officers profile and harass the people on their beat in an effort to rack up as many arrests as possible.

"Law enforcement officers now are part of the revenue gathering system," Carson tells me in a phone interview. "The ranks of cops are young and competitive, they’re in competition with one another and intra-departmentally. It becomes a game. Policing isn’t about keeping streets safe, it’s about statistical success. The question for them is, Who can put the most people in jail?"

Rule #1:

Be Invisible to Police

Carson has four golden rules, the first of which is, "If police can't see you, they can't arrest you." The simplest application of this concept is that if you plan on doing something illegal, you should do it in the privacy of your home. Yes, you can be arrested while at home, but you can't be profiled sitting in your living room, and profiling is what you're trying to avoid.

The best part:

If crying fails, and you're willing to do whatever it takes to not go to jail, Carson advises you to "foul yourself so that the police will consider setting you free in order not to get their cruiser nasty." Vomit on your clothes. Defecate and urinate in your pants. Then let the officers know what you've done. If they arrest you anyway, you'll get cleaned and reclothed at the jail.

From Mother Jones: How Every Part of American Life Became a Police Matter

This touches on issues we raise in 2306 when we talk about criminal justice policy and the tendency of legislatures to try to solve certain problems by criminalizing them.

The author outlines the range of activities now criminalized and questions how far this has gone. Are we now, for all practical purposes, a police state?

If all you've got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves "solving" social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago.

By now, the militarization of the police has advanced to the point where "the War on Crime" and "the War on Drugs" are no longer metaphors but bland understatements. There is the proliferation of heavily armed SWAT teams, even in small towns; the use of shock-and-awe tactics to bust small-time bookies; the no-knock raids to recover trace amounts of drugs that often result in the killing of family dogs, if not family members; and in communities where drug treatment programs once were key, the waging of a drug version of counterinsurgency war. (All of this is ably reported on journalist Radley Balko's blog and in his book, The Rise of the Warrior Cop.) But American over-policing involves far more than the widely reported up-armoring of your local precinct. It's also the way police power has entered the DNA of social policy, turning just about every sphere of American life into a police matter.