Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?

(Lyrissa Lidsky) Does the First Amendment protect lies that cause only diffuse and intangible harms? That’s the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a “gross misdemeanor” to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. ThoughAlvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I’ve long been interested in this topic (see my essay, Where’s the Harm?), so it is particularly nice to come across Christina Wells’ new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.

Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value–whether they make any positive contribution to public discourse–then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.

First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms–lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause–pollution of the stream of information available to voters about candidates and issues and possible distortion of electoral outcomes–is sufficient to justify government regulation. 

Visit Maurodrdo.Wordpress.com for more legal articles and laws.

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“The Right to Counsel: Badly Battered at 50″ (At a Great Moment for Hope and Change)

(Douglas A. Berman) The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday’s New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes….

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak criminal defense lawyers who fail to push back….

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A Zombie in the Wild

(Eric Rasmusen) I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the “Standard Story” that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I’d spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.

Gunderman starts with the standard it-isn’t-crime explanation:

Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.

His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that’s 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2

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But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can’t just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.

Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don’t necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters.

For more crime related updates, call or visit Best Detroit Lawyers. 

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“Sex Offender Seeks Admission to Kentucky Bar”

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

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The Myth of the Trial Penalty?

(Dan Markel) Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this oneto the file. Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

 

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

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Prosecutorial Discretion in Bond

(Richard M. Re) Who would have thought that Bond v. United States – today’s much-awaited decision involving the Chemical Weapons Convention — would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court’s consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, the defendant Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn’t reach Bond’s conduct. A major theme of the majority opinion is that Bond is an “unusual” and “curious case” that is “worlds apart” from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the “common law assault” at issue in Bond would normally be handled by state and local government. But if that’s so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded — contrary to the intuitive view — that the Convention’s implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court’s statutory holding wouldn’t have harmful effects. “[W]ith the exception of this unusual case,” Bond noted, “the Federal Government itself has not looked to section 229 to reach purely local crimes.” Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to “assassination, terrorism, and acts with the potential to cause mass suffering,” and the Court declined to “disrupt the Government’s authority to prosecute such offenses.”

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Detroit Criminal Lawyer: Get Experience On Your Side

If you have been falsely accused of domestic violence (DV), or if you have simply made a mistake, there can be very serious consequences if you are convicted. The penalties for DV have increased Detroit Domestic Violence Lawyer, and a conviction can follow you as you apply for jobs–or even cost you the job you have now. The most important thing you can do for yourself is to hire a Detroit criminal lawyer with who is knowledgeable and experienced in DV cases to vigorously defend you against these charges.

Many people charged with DV experience a considerable amount of humiliation, especially if they are arrested in a public place. Your family, neighbors or coworkers may have witnessed the arrest. You may already have been put on leave by your employer or have had a restraining order filed against you. It may be tempting to try to handle things on your own, hoping to make the situation go away as quickly as possible.

Often people who try to handle serious charges on their own wind up with more serious convictions than those who engage a seasoned attorney to fight on their behalf. Hiring a Detroit domestic violence lawyer means having a strong advocate to defend you. An experienced attorney may be able to get the charges reduced or even dropped, possibly saving you from losing your job or your right to see your children. If the charges are reduced or dismissed you may also avoid having a serious conviction on your permanent record.

Detroit-Domestic-Violence-Lawyer

An experienced Detroit domestic violence lawyer can work on your behalf in several different ways. His or her knowledge of the justice system and local courts means that your attorney can negotiate with the prosecutor and, in the best case scenario, get the charges dropped before your case ever goes to court. If it does go to trial, your attorney will attempt to negotiate a plea deal, where you are able to plead to a lesser charge. If that option fails, your attorney will put on the strongest defense possible to the judge or jury.

What to expect when you contact a defense attorney

Once you contact an attorney, you will have an initial conversation, free of charge, to discuss the circumstances of your case. You will have an opportunity to ask questions. The lawyer will advise you on the best course of action and discuss their role and the costs associated with defending you. If you engage the lawyer to take on your case, they will discuss your situation in more detail to find out what happened, the strength of the case against you and any special circumstances. You will be in charge at all times. The lawyer will explain all of the options available to you and make recommendations, but ultimately you will be the one to decide which steps the lawyer will take.

Don’t wait–if you have been charged with domestic violence, contact a criminal lawyer in Detroit, with an expertise in domestic violence now to find out how you can best defend yourself.

Top Chicago Criminal Lawyer – Launches Website as Educational Portal

Are you looking for the top Chicago criminal lawyer possible to handle your case? Are you unsure where to go for answers, or even know where to start? You’re not alone.

Chicago Criminal Lawyer aims to change that feeling of despair and helplessness that immediately follows being charged with a crime. And with glowing pride, they recently announced the launching of their new website designed specifically to help anyone charged with a criminal offense, get on the right path. To provide the best possible chance of a positive outcome through accurate information.

No matter what legal issue you are facing, getting the right information at the right time is the key to a successful result.

Not only is having a strong, aggressive best chicago criminal lawyer, and experienced lawyer on your side key to getting your freedom back. We believe that knowing and understanding the law as it pertains to your case trumps everything else, especially in the early stages.

Chicago Criminal Lawyer recently launched the site designed for education. The new website is designed specifically to help negotiate those turning and twisting roads that will inevitably be part of your life for the foreseeable future.

Before the Internet, people relied heavily on referrals to find the right product or service; consumers depended on experts to provide guidance and set the direction.

Today, we have information at our fingertips. Providing the right information is precisely what they are trying to achieve; to become your only source of information to help you make the most educated decisions possible, while providing only the topChicago criminal lawyer for your case.

About Chicago Criminal Lawyer

Criminal Lawyer of Chicago’s skilled attorneys know their way around every court system in Illinois, exactly what you need help in. Calling one of our attorneys is the BEST decision you will ever make.

Chicago Criminal Lawyer

Michigan Avenue

Chicago, Illinois United States 60601

(877) 293-6028

petewest2014@gmail.co

http://criminallawyerchicago.org

Criminal Defense Attorneys at Your Service

There are different types of lawyers according to their field of specialization. Not all lawyers are equipped to represent you when you are charged with a crime or are being investigated because of one. The federal system pursues the most serious crimes and gives out severe sentences as compared to other guidelines. These are the reasons why it is very important for a person charge with a crime to hire the best possible criminal defense lawyer who has the full understanding of the federal system and its procedures. There are also the same reasons why a criminal defense attorney El Cajon is available to come for your rescue.

Do You Need a Criminal Defense Lawyer? – Clawson & Clawson, LLP

www.clawsonlawfirm.com5/28/12

Have you been charged with a minor criminal offense, such as trespassing, offensive conduct or property damage? You may be wondering if it's really necessary to hire a criminal defense lawyer for such a crime, but these

Find a Federal Criminal Defense Lawyer – How to Make the Right

www.lewisandclarkne.org12/21/12

When you are either investigated for a federal crime or charged with a federal crime, you need a lawyer that understands federal criminal law. Not all criminal lawyers are prepared to defend you in a federal criminal case.

Many people use the cliché ‘the truth will eventually come out’. But, when it comes to court cases and proceedings, the argument must be supported with justifications and presentation of evidences. This is where the judge would base his decisions regardless of what the real truth is. It is therefore vital for a person charged with a crime or the defendant to choose not just a very good general lawyer, but an expert and experienced criminal defense attorney to help him prove himself innocent of the charges. That is just how the court system works!

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