Unfortunately, mounting evidence suggests that federal sentencing guidelines for white collar crimes do not adhere to this foundational principle of predictability, nor are they often terribly proportionate to certain infractions committed by offenders. As a result, a highly influential judge is insisting that these guidelines be substantially reformed in the name of fairness and consistency.
]]> As they are currently constructed, federal sentencing guidelines for these offenses are set via a mathematical formula. One would imagine an arithmetic formula to be quite predictable. Unfortunately, the system is flawed in practice, producing highly illogical and irrational sentencing mandates. It is not the numbers themselves that are unpredictable but the ultimate sentences that they produce.For example, one fraudulent offense might be worth two points under the system and a very similar offense is worth four. In this scenario, two like-offenders will face very different sentencing mandates. Thus, the influential New York judge and many other criminal law experts are calling for a complete overhaul of the white collar sentencing guidelines. Because ultimately, only by ensuring predictability in sentencing on a practical level will the system operate justly.
Source: Thomson Reuters News & Insight, “Rakoff says sentencing guidelines should be 'scrapped',” Nate Raymond, Mar. 11, 2013
]]>These registries are meant to inform the public. But do the practical costs of registration outweigh the benefits? Recent studies suggest that at least with regards to teen offenders, the answer to this question may be yes. Teens are often charged with relatively minor sexual offenses. Many are convicted of illegal sexual activity after engaging in consensual acts with teens near to them in age. However, they are often forced onto registries and the consequences can be catastrophic.
]]> Depending on how much of their personal information is aired, former teen offenders may be subjected to repeated harassment, discrimination and even homelessness as a result of their presence on these registries. When they age and commit to family life, they may be prohibited from playing with their own children at parks or attending any events at their schools.Certainly, the public has a vested interest in remaining safe from harm. However, many former teen offenders branded after relatively minor and even consensual sexual acts are punished for life as a result of registration requirements. If they are deemed to pose no likely future threat to public safety, perhaps it has become time to take these former teen offenders off these lists.
Source: CNN, “Report: Registry does more harm than good for teen sex offenders,” Emanuella Grinberg, May 1, 2013
]]>Investigations into alleged drug crimes often involve private residences. Entering a residence without a search warrant can result in the violation of Fourth Amendment rights. There are some exceptions that allow officers to enter a home without obtaining a warrant such as "hot pursuit" or exigent circumstances -- exceptions that did not apply in this situation.
]]> On May 13, 2007 two officers arrived at the private residence of an Orlando resident. There, the officers arrested the resident's son for a routine misdemeanor in the garage attached to the home. When she realized what was going on, she reached out to her son as any mother might. The officers then followed the woman into her home, forced her to leave and placed her in custody for resisting arrest.This was not the first incident involving the two officers that appeared at her home. Other situations involved sexual touching of a woman while on duty and pushing another down a flight of steps at a nightclub.
The mother in this instance took the claims as far as civil court, and a jury found a violations of her rights. The result: her criminal charges were dropped and she was awarded civil damages.
Source: Click Orlando, "Orlando police ordered to pay woman $88,000," Tony Pipitone, April 26, 2013
]]>A challenge had been placed before the Court which questioned the ability of the federal government to legally eavesdrop on citizens' international e-mails and telephone calls. The Court turned the challenge back in a 5-4 vote. In essence, the Court has declined to rule on the constitutionality of the law that currently permits the federal government to engage in such action.
]]> This critical privacy issue may profoundly affect certain criminal cases in which evidence is brought forth by prosecutors obtained during these secret international data searches. In declining to rule on the challenge to the law that permits this behavior, the Court has effectively ruled that it may continue to the detriment of American privacy rights in criminal cases.Granted, this action may only be permitted in certain alleged anti-terrorism and related situations. However, limiting the ability of the public to challenge behavior under the law may ultimately lead to its abuse. Sometimes, as in cases like this one, the silence of the Supreme Court fosters significant policy actions even more so than when it speaks clearly.
Source: New York Times, "Justices Turn Back Challenge to Broader U.S. Eavesdropping," Adam Liptak, Feb. 26, 2013
]]>In recent years, it has become apparent that even strong criminal defense strategies cannot always keep those who have been wrongfully accused from facing convictions. Both in honor of those who have been wronged and in an effort to repair the integrity of the criminal justice system, law enforcement and prosecutors are increasingly making efforts to aid persons who have been wrongfully convicted.
]]> Last year, 63 Americans wrongfully trapped in the criminal justice system were exonerated. Prosecutors and law enforcement aided or initiated over half of these successful exoneration cases. This percentage marks a highpoint in a trend that has been growing stronger over the past 25 to 30 years. During this time, law enforcement and prosecutors have initiated or aided in successful exonerations only 30 percent of the time on average. However, participation in these cases has jumped in recent years.The editor of the National Registry of Exonerations recently explained that "We see a clear trend. This is as it should be. The purpose of law enforcement is to seek truth and pursue justice. I'm glad to see they are now doing so more often after conviction, to help correct some of the terrible mistakes we sometimes make."
A well-functioning and just criminal legal system benefits everyone. Thankfully, law enforcement and prosecutors seem to be placing heightened emphasis on ensuring that the system is run with integrity, accuracy and justice for all.
Source: The National Law Journal, "Report: Police and prosecutors getting more involved in exonerations," Karen Sloan, Apr. 3, 2013
]]>This right is critical to ensuring that one's criminal defense is the subject of just and proper due process. Unfortunately, there are exceptions to this right and related rights that can bite an accused person if he or she is not careful. Currently, the United States Supreme Court is considering arguments related to one potential "right to remain silent" exception.
]]> In many cases, prosecutors seek to use a person's silence against him or her in court, whether or not that person ultimately takes the stand. The Supreme Court has upheld prosecutorial discretion to use invocation of silence against an accused person if he or she takes the stand. But the question of whether or not prosecutors may do so if the accused does not take the stand remains unsettled.After a person's Miranda rights are read, generally prosecutors cannot use invocation of this right against an individual. However, if a person refuses to answer questions before he or she has been arrested and read these rights, a right to remain silent may or may not exist.
When the Supreme Court rules on this issue, lower courts will be able to enforce a consistent approach. Until then, accused persons will continue to be treated differently in varied jurisdictions.
Source: ABA Journal, "Court weighs whether a prosecutor can use a defendant's refusal to answer a question," Mark Walsh, Apr. 1, 2013
]]>Late last week, authorities --- including Eustis, Tavares and Leesburg police, SWAT teams and DEA agents -- raided two homes, one on East Gottsche Avenue and the other on Clifford Avenue. They said they found "materials used to sell drugs," marijuana, crack cocaine, a firearm and ammunition.
]]> Those arrested are:They have been charged with a dizzying array of offenses, including possession of a firearm by a convicted felon, possession of marijuana with intent to distribute and possession of crack cocaine.
We have worked with people who have been accused of crimes long enough to be reasonably certain in our assumption that the defendants, especially the younger ones, are likely feeling a little dazed after their experience. First, gun-toting agents storm their homes, seize their belongings and arrest them, and now they find themselves at the mercy of the court system, caught up in process they likely do not really understand. It's enough to put even a well-informed, responsible person completely off-balance.
In situations like what we just described, the guidance and assistance of an experienced criminal defense attorney can be very valuable. Many people feel a sense of relief and assurance knowing that they have qualified help in their corner. That way, their questions get answered and the process often seems a bit clearer.
Source: The Orlando Sentinel, "Police: Four arrested in drug-houses busts," Eloisa Ruano Gonzalez, March 21, 2013
A state senator recently introduced the "Youth in Solitary Confinement Reduction Act" into the legislative agenda. The bill seeks to both limit the use of solitary confinement for juvenile offenders and to minimize the catastrophic physical and mental impacts that continued use would have on Florida youths.
]]> Specifically, the bill would prohibit use of solitary confinement for minors except in very specific situations. When minors are placed in solitary, they will not be held there for more than 72 hours, will be given time away from their cell, will be subject to mental health evaluations and will be treated in the least restrictive manner necessary to maintain the safety of the juvenile and those around him or her.Should Florida pass this bill, the state could serve as a model to others. The way that the criminal justice system treats juvenile offenders greatly influences how these individuals will live the rest of their lives. By mitigating the destructive impact that solitary confinement has on these individuals, the state could certainly inspire these youths to live healthier and more adjusted lives in the future.
Source: ACLU, "Legislation Filed Responding to Crisis of Florida Minors Subjected to Harmful, Counterproductive Solitary Confinement," Feb. 20, 2013
]]>More than 2 million people are currently serving time behind bars. About half of those serving time in a federal prison are there for drug-related crimes. The United States has the highest incarceration rate compared to every other country in the world. However, that wasn't always the case. Incarcerations for drug crimes increased significantly after President Richard Nixon declared a war on drugs in the early 70's.
]]> A study by an Ohio University sociologist shows that incarceration may increase a person's chances of succeeding in illegal activity after they are released. In fact, a person could earn about $6,000 more each year through criminal activity after they have served time behind bars.In addition to being around other people who have engaged in criminal activity, someone with a criminal record who has served time in prison often doesn't have the necessary skills to obtain a good paying job. Employers are also reluctant to hire someone with a criminal past.
Instead of putting more people behind bars, some question whether it would be beneficial to enforce strict probation. A person could then gain skills to further themselves. In addition, it would create connections to people outside of the criminal world.
Unfortunately, prosecutors and law enforcement in Florida and beyond are often eager to punish those convicted of drug crimes to the fullest extent. A defense strategy for those currently facing drug charges could be a push for less severe penalties and a stronger focus on rehabilitation.
Source: CNBC, "Flush With Crime: Study Shows Prison a Career Boost," Jeanine Ibrahim, March 7, 2013
]]>At this time, the GPS units will only affect cases in which permanent injunctions have been ordered. However, this policy has the potential to morph and spread until it affects other kinds of cases in the future. As it stands, this policy is likely the first of its kind nationwide, given the nature of the offenses being targeted.
]]> No one can dispute the idea that if an order of protection is in place, it should be respected. However, the tagging and tracking of individuals with GPS units for an undetermined amount of time is likely to be opposed by civil liberties advocates. Especially because many of these cases are solely civil in nature and affected persons have often not technically been found guilty of any crime. To-date, only criminal defendants are outfitted with GPS units throughout the U.S.Roughly ten percent of alleged domestic violence cases in these counties could be affected by the new policy. It was inspired in large part by the spike in domestic partner homicides that have occurred in Florida in the past year. This trend is certainly a problem and must be addressed. However, tracking individuals who have not been convicted of criminal activity via GPS for an uncertain amount of time is not likely to be the best solution, especially given legitimate concerns about the privacy of those affected.
Source: Orlando Sentinel, "GPS tracking will warn domestic-violence victims when abuser is approaching," Kate Santich, Feb. 8, 2013
]]>The Florida Supreme Court recently heard arguments in a case centered on the reliability of breathalyzer devices. The outcome will assuredly impact a high percentage of drunk driving cases brought in the Sunshine State. At the heart of the case is the CMI Inc. Corporation, which supplies Florida law enforcement with the only models of breathalyzers whose results are considered admissible evidence in the state's criminal courts.
]]> Three drunk driving defendants are arguing that they should be granted access to documents that pertain to CMI's breathalyzer software. However, there is a procedural dispute before the court about how one must go about obtaining this critical information. Yet, it is not the procedure that is of great interest to DUI defendants and criminal rights activists all over Florida.Rather, concerned parties are focused on the fact that absent access to this documentation, it is difficult to justify allowing potentially defective or biased software to be admitted as evidence for a serious crime. However, the Florida Supreme Court must clear up this procedural hurdle before the documentation can be obtained at all. Only then can it be analyzed and appropriately challenged or accepted by those it affects.
Source: Sunshine State News, "Will Florida Supreme Court Make DUI Breathalyzers Inadmissible?" Eric Giunta, Feb. 6, 2013
]]>Double jeopardy protection is a constitutional right guaranteed by the Fifth Amendment. As a general rule, double jeopardy protection prevents individuals from being prosecuted for the same crime more than once. However, this protection is riddled with nuance.
]]> First, being prosecuted in criminal court for a given act does not preclude an individual from being named as a defendant in a civil suit related to the same act. The criminal and civil justice systems are distinct, so one may lawfully be held accountable for the same act in both broad systems.In addition, the same action can result in multiple charges in multiple jurisdictions. This means that one act of alleged homicide could lawfully be tried at the federal level and again at the state level. In addition, the same act could result in various charges tied to the same act. You could be charged with homicide, with domestic battery, with conspiracy and a whole host of other charges by committing one single act.
Double jeopardy protection does prevent a single government from charging you with the exact same crime more than once. However, this protection does not necessarily prevent you from being tried for the same act in a multitude of ways.
Source: Findlaw Blotter, "What Is Double Jeopardy?" Deanne Katz, Feb. 11, 2013
]]>The defense attorneys for the Ontario, Canada, citizen successfully argued that although the suspect owned the truck he was not the one who placed the drugs inside of it. Defense attorneys presented evidence that included paperwork that showed there was enough opportunity for someone else to have planted the drugs. The delivery date for the orange juice was scheduled four days prior to what can be assumed to be the discovery of the drugs.
]]> The paperwork presented at trial included invoices, manifests and logs which demonstrated the there was enough opportunity for someone else to have planted the drugs without the defendant's knowledge. The defense argued that unless federal prosecutors could prove that the truck driver knowingly and intentionally participated in transporting the drugs into the United States, the jury must find him not guilty of the charges.During the truck driver's trial, federal prosecutors presented a number of witnesses, including Department of Homeland Security agents who provided testimony that only included finding the drugs inside the truck. In court papers filed prior to the trial, government prosecutors referenced a 2009 investigation involving the defendant and Canadian law enforcement but were forced to acknowledge that the investigation did not result in a conviction.
This case demonstrates that not everyone accused of a crime is actually guilty of that crime. With an experienced criminal defense attorney it is possible to beat the odds as this truck driver did when the jury found him not guilty of smuggling drugs across the U.S. border. Federal drug charges can carry serious consequences beyond a lengthy prison sentence. A criminal conviction can have a significant and long-term impact on a person's life, including personal relationships and future employment opportunities.
Source: The Buffalo News, "Jury acquits trucker of drug and smuggling charges," Phil Fairbanks, Jan. 29, 2013
]]>New software currently being used in some eastern jurisdictions illustrates the complexity of criminal behavior prediction analysis especially well. This software aims to predict the potentially criminal actions of former offenders of violent crimes before they occur. While there is obvious benefit to law enforcement in engaging in such analysis, acting on this analysis could potentially compromise an individual's right to be presumed innocent until proven guilty.
]]> Currently, the software is being used to track and predict behavior of individuals on parole. The idea is that by using predictive software, the level of attention and effort exerted by parole officers with regard to any given parolee can be tailored accordingly. The prediction analysis is reached by using an algorithm constructed from roughly two dozen distinct variables.By determining an individuals' geographic location, age at which the individual committed former offenses, criminal record and other factors, the software can allegedly predict whether or not the offender is likely to reoffend. Again, this predictive technology may be somewhat helpful to law enforcement, but it may also potentially pigeonhole parolees and compromise their rights in various ways.
Source: The Mary Sue, "Minority Report precog-like software being tested in Baltimore and Philadelphia to predict crimes," Jill Pantozzi, Jan. 12, 2013
]]>These synthetic versions of marijuana can be very dangerous. They have caused hallucinations, paranoia, and psychotic episodes. Users are smoking substances that are created chemically and have no real way to determine what it is that they are consuming.
Making these substances illegal is appropriate. They are having a terrible effect on the users, and are particularly being abused by younger users. However, perhpas there is a better way to prevent people from using synthetic cannabis and be subject to all the problems associated with these harmful chemicals. If Florida followed the growing trend of decriminalizing or legalizing marijuana, the use and abuse of synthetic marijuana would likely decline rapidly. It is time that our Florida legislature rethink the way marijuana is treated.
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