Workplace Violence? Making Sense of Annie Le’s Murder

(Jonathan Simon) Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn’t think the murder of Annie Le had anything to do with either New Haven or Yale?  In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime?  Last time I checked New Haven counted as a city (maybe not a major city).  Does this just mean that the accused, Raymond Clark, happens to be white?  He was after all otherwise a local.  University crime? I’m not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants.  Domestic crime?  Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark.  But where does the Chief get off hinting darkly that there is a growing problem of “workplace” crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there.  That is particularly true of domestic violence.  When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation.  Many workplaces, like retail stores, are targets for robberies.  Here’s a copy [Download Workplace Violence] of the federal government’s last published report on workplace violence.  Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years.  In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of.  Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists). College or university teachers already enjoy the lowest level of  occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers. 

If you have been falsely accused of domestic violence (DV), or if you have simply made a mistake, the most important thing you can do for yourself is to hire a Domestic Violence Lawyer in Detroit.

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The Duty to Rescue and the Registry for Caregivers: A Guest Post

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

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 (DetroitCriminalLawyer.org) means having a strong advocate to defend you.

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Help Wanted: Clearing the Troubled Assets of the Penal State

(Jonathan Simon) I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title “Careers in Criminal Law: Beyond Defense & Prosecution.”  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late ’60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous “legacy” costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I’m not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

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Pre Crime: Why are we so confident that we can prevent acts of terrible violence?

(Jonathan Simon) As politicians and officials in Washington (state) and Arkansas battle over who should have stopped Maurice Clemmons before he apparently shot to death four Washington state police officers outside a strip mall coffee shop near Tacoma last weekend before being shot dead by Seattle police, we can observe a very enduring if not endearing American obsession– our conviction that we might have stopped the tragedy (read William Yardley’s summary of the blame game in the NYTimes).  Clemmons, sent to prison with a hundred year plus term for violent crimes as a teenager, received clemency and parole from then Arkansas governor Mike Huckabee (who made no secret of his religious belief in the possibility of redemption and change).  Both Washington State and Arkansas officials appear to have missed opportunities (in retrospect) to turn up the control pressure on Clemmons.  More should be learned over the next news cycle or two.  

As an overall trait, this American confidence that better technique and method could stop violence is largely admirable, small “d” democratic, and great for the criminal law and policy reform business (which includes fairly or not, academics).  Overall it may make us prone to waves of generally temporary civil liberties destruction in the name of personal security (as we have seen).  My objection, however, is limited to two points.

First, our obsession with the “recidivist”.  Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after.  This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances.  Ironically, the one trait that really may help us track future violence–evidence of major mental illness combined with acts of violence–seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

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Crime Decline Conundrum

(Jonathan Simon) With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday’s NYtimes (read Al Baker’sreporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken’s article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide “spike,” with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski’s reporting in the Providence Journal). This is good news in a year with little of it. 

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they’ve been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year’s speculation list of the top three “positive” factors underlying declines in urban domestic violence

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course. 

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

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Judge Brown’s Sleight-of-Hand in Al-Bihani–And Why It Matters…

(Steve Vladeck) It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it.  Thus, I thought I’d take a minute to blog about the Government’s very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v. Obama, filed yesterday in the D.C. Circuit (and discussed by Lyle Denniston @ SCOTUSblog here).  [Full disclosure: I co-authored an amicus brief in support of rehearing en banc.]

The Government’s brief is telling in two distinct respects.  First, as Lyle notes, the Government all-but concedes the principal ground on which al-Bihani is seeking rehearing en banc — i.e., that the panel’s sweeping holding that detention authority under the September 2001 Authorization for Use of Military Force (AUMF) is not informed (or constrained) by the laws of war is thoroughly inconsistent with the Supreme Court’s analysis in Hamdi (and, to a lesser extent, Hamdan). 

But the second telling feature of the Government’s brief, which is perhaps even more significant, is its full-bore defense of the al-Bihanipanel’s procedural discussion (which held, in effect, that Guantanamo detainees are entitled to exceedingly few procedural protections in their habeas cases notwithstanding Boumediene). In particular, at page 13 of their brief (page 17 of the PDF), the Government notes that “The panel simply recognized – correctly – that the habeas review mandated by Boumediene need not match the procedures that apply to habeas challenges to criminal convictions.”

This statement is an entirely fair summary of what the al-Bihani majority actually held. But, like the panel opinion itself, it is an incredibly deceptive reading of Boumediene. Here’s the relevant passage from al-Bihani, with citations omitted (and emphasis added):

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial.” It instead invited ‘‘innovation’’ of habeas procedure by lower courts, granting leeway for ‘‘[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.’’ Boumediene’s holding therefore places Al–Bihani’s procedural argument on shaky ground. The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.

Do you see the sleight-of-hand? In the quoted passage, Boumediene was referring to the procedural protections that attach to criminal trials themselves, not to “habeas challenges to criminal convictions.” Indeed, the procedural protections that attach to post-conviction proceedings (especially non-capital cases) pale in comparison to those that the Constitution and various statutes require in criminal trials, especially these days. So, the al-Bihani majority conflated criminal trials with criminal (post-conviction) habeas, suggesting that, because Boumediene held that Guantanamo habeas petitions need not have the protections attendant to criminal trials, they also need not have the (far lesser) protections attendant to post-conviction habeas petitions.

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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

Screen Shot 2013-06-24 at 10.41.18 AM

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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