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Schools rethink zero tolerance policies for juvenile offenses

Over the past several years, many schools and school districts have developed so-called zero tolerance policies for a variety of offenses that kids and teens may commit. Some zero tolerance policies are understandable and arguably justified. For example, we live in an era in which children do not necessarily have good reason to feel safe at school. So, a zero tolerance policy connected to the offense of bringing a gun to school makes perfect sense from a public safety standpoint. However, other juvenile offenses affected by zero tolerance policies are arguably overkill. According to the New York Times, teens and kids have not only been given detention but have been suspended and sometimes arrested for minor offenses including shoving matches and cursing on school grounds. When a child or teen is arrested on any charge, the experience may be traumatic and may have a dramatic impact on that young person’s future. This kind of bold response to minor infractions may keep kids from getting into the colleges that they have otherwise earned the right to attend. It may also keep kids from eventually securing housing and employment. As study after study has confirmed that most zero tolerance policies do little but place students at risk for long-term academic and social problems, schools and school districts are beginning to rethink these harsh policies. If you live in a school district where the zero tolerance policies exceed what is reasonable to keep kids safe, do not hesitate to show up at your district’s next school board meeting and raise your voice for change. Because reform in regards to this issue is sorely needed for the benefit of our nation’s youth. Source: New York Times, “Zero Tolerance, Reconsidered,” Jan. 5, 2014

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Rate of arrest among young men in the U.S. is astonishing

A study on the rates of arrest among young, American males was recently published in the journal Crime & Delinquency. Though our readers may find the results of the study to be truly shocking, a criminology professor at the University of South Carolina and one of the study’s co-authors recently explained to USA Today that, “Among criminologists, I don’t think they’re that surprised or alarmed by the findings. The alarm and concern is among people not as familiar with the patterns.” This explanation indicates that those familiar with U.S. incarceration rates are already aware that young, American males are arrested at frustratingly high rates. According to the study, 40 percent of white males and nearly 50 percent of all black males in the U.S. are arrested one or more times for non-traffic-related offenses before reaching the age of 23. We have written frequently about the fact that the U.S. locks up far too many individuals who have committed low-level drug crimes. However, the idea that nearly half of all American men are arrested on non-traffic-related charges before turning 23-years-old is baffling. This study’s conclusions will hopefully inform policy in all aspects of society moving forward. For example, understanding that the U.S. arrests so many young men should help to positively reform employers’ approaches to hiring individuals with an arrest record. This kind of understanding should also help to inform the situations in which law enforcement officers should and should not find it reasonable to arrest individuals generally and to arrest young men in particular. Source: USA Today, “Study: Nearly half of black men arrested by age 23,” Jake Pearson, Jan. 20, 2014

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Please avoid saying these things to a criminal judge

A courtroom is one of those unique places where the customs of the outside world do not always apply. In a courtroom, electronic devices should not be consulted except in cases of emergency and a proper dress code is strongly implied. In addition, you also must only speak when spoken to by a judge, bailiff or other administrative professional, except in the rarest of circumstances. When speaking to a criminal law judge, please keep in mind that every word you utter could impact the outcome of your criminal defense. You should not begin a criminal proceeding of any kind by telling the judge that you will represent yourself. Whether you consult an experienced criminal defense attorney or decide to allow the court to appoint an advocate for you, it is important that you seek professional counsel in regards to your case. The consequences of your criminal case could be life-altering. You almost certainly need an experienced criminal defense advocate by your side. You should also not tell a judge that have you committed any element of the charges against you unless instructed to do so by your attorney. Should you choose to plead guilty, you will enter that plea formally. Saying anything about your case or the charges against you before consulting your attorney is not a good idea. Finally, please avoid swearing and lying. The first offense may inspire the judge to hold you in contempt. The second offense may result in a host of negative consequences, including additional criminal charges. Please, be respectful and calm. If something is amiss, your attorney should be well-versed in how to handle the situation so that you do not have to. Source: Findlaw Blotter, “5 Things You Shouldn’t Say to a Criminal Judge,” Brett Snider, Jan. 21, 2014

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Harsh sentences plague integrity of the criminal justice system

Imagine that you have prior drug convictions but have led a law-abiding life since that time. Then, either because you were wrongfully accused or because you did slip up again, prosecutors come down on your latest alleged infraction harshly. They offer you an incarceration term of 10 years if you plead guilty. If you choose to go to trial, either to fight a wrongful accusation or for some other purpose, prosecutors will use your earlier convictions against you and you will face a mandatory life sentence without the possibility for parole. This decision is hopefully one you will never face. But for a man recently profiled by the New York Times and for countless others, this is the kind of decision prosecutors force. Mandatory sentencing for federal drug crimes and other offenses are being sought by prosecutors less often under the Obama administration. However, individuals accused of criminal wrongdoing continue to face extraordinarily severe and harsh punishments under current law. Mandatory sentencing laws for low-level drug offenders are not the only policies plaguing the integrity of America’s criminal justice system. Enhancements stemming from past convictions also are resulting in over-punishment of accused and convicted persons. One of the main purposes of the criminal justice system is to hold criminal offenders accountable for their actions in ways that are proportional to their crimes. Mandatory minimum sentences, three-strike laws and enhancements often directly subvert this purpose and undermine the integrity of the system as a whole. These approaches are therefore in urgent need of reform. Source: New York Times, “Prosecutors Draw Fire for Sentences Called Harsh,” Erik Eckholm, Dec. 5, 2013

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Hey Mugshots, Pay-Up

This last October we wrote an article about Google changing their algorithm to punish mugshot websites that were publishing people’s photographs.  The article indicated that Google finally realized that these websites were not informative pages disclosing new information, but were simply capitalizing on our society’s voyeuristic tendencies.  Google’s change forced these websites down in the search engine ranks but the sites were still there and were still generating income. Now it is being reported that a settlement with bustedmugshots.com and mugshotsonline.com has been reached.  These websites agreed to a monetary settlement and agreed to take the photos down.  This is a victory for not only these people but for all other people who were paying the blackmail to have their identity removed from the website. This settlement was reached in Ohio, but there are many other states with pending litigation.  To our knowledge this was the first settlement. One of the biggest mugshot websites mugshots.com was not a party to this suit. I cannot tell you how much these websites frustrate me.  They embarrass people who may not even have been convicted and almost blackmail those people who want to have their photos removed.  I personally hope they continue to be sued and continue to settle.

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Your cellphone and law enforcement efforts: Part II

Earlier this week, we began a discussion about the ways in which law enforcement agencies are engaging in large-scale cellphone data captures of individuals who may or may not be involved in criminal investigations. It is almost impossible to fathom that this conduct is in any way condoned by existing criminal law statutes. According to USA Today and Gannett, law enforcement agencies in 33 states are engaging in these types of captures. Agencies may engage in so-called tower dumps. During these operations, agencies are given information about any phone that connects with a given cellphone tower over a set period of time. Among the information collected is the identity of the cellphone owner, the location of that phone and the activity pursued on the phone during the set time period. Other agencies use a suitcase-sized machine called a Stingray. This device is portable and may be driven around in order to capture cellphone information in any given neighborhood. Law enforcement officers argue that Stingray devices and tower dumps can help prevent terrorist attacks, track down abducted children and otherwise enhance public safety. However, respected civil liberties groups are voicing the obvious question that should be associated with these efforts, “At what cost?” The Fourth Amendment protects citizens generally from unlawful search and seizure efforts by the government. When these rights are not protected, both ordinary citizens and criminal defendants can suffer dire consequences. This kind of activity needs to be halted until the justice system can figure out how to insert proper oversight and warrant requirements for large-scale captures. Source: Florida Today, “Special report: Police agencies can grab data from your cellphone,” John Kelly and Britt Kennerly, Dec. 9, 2013

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Forms of mortgage fraud evolve with economy

Among clichés about the crime of fraud, the one about selling swamp land in Florida is one of the most enduring examples. It refers, on its face, to a type of real-estate scam in which someone is offered a supposedly can’t-miss investment opportunity. Real-life mortgage fraud is often quite different than this caricatured scenario would suggest. As we discussed in our recent article on mortgage fraud in Florida, there are numerous types of fraud that go by this name. For example, one of the most common types of mortgage fraud has historically involved using fraudulent information in applications for mortgage loans. In other words, borrowers use false information to obtain mortgage loans, even though they don’t qualify for those loans under the underwriting standards. This type of mortgage fraud may be less likely to occur now than it was a few years ago. That is because banks and other lenders have tightened underwriting standards considerably in the wake of the real estate crisis and the financial crisis that followed it. Those twin crises – the real estate crisis and the financial crisis – were in turn followed by the Great Recession. It was no ordinary recession; it was the biggest economic downturn since the Great Depression of the 1930s. Not surprisingly, the Great Recession had a major impact on mortgage fraud cases. The most common cases now often involve transactions in which there is economic distress, such as foreclosure rescue or mortgage modification schemes. As we noted in our article, mortgage fraud schemes like this frequently target homeowners who are risk of losing their homes. Many schemes try to get homeowners to pay an up-front fee, without any way of knowing that the person or company taking the money will actually do anything to help.

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Your cellphone and law enforcement efforts: Part I

Over the past several months, a great deal of public outrage has been voiced over the fact that the federal government regularly spies on the electronic communications of both Americans and foreign citizens. The privacy implications of this story are so vast that they can be difficult to fully contemplate. They are so widespread as to appear almost abstract. However, the privacy challenges associated with even more personal communications investigation efforts may affect you and any criminal law cases filed against you clearly, immediately and profoundly. Unlike spying efforts conducted by the National Security Agency (NSA) and other federal agencies, local law enforcement spying efforts tend to affect targets in more ways than widespread privacy violations. If a law enforcement agency receives a warrant to track your cellphone communications, those calls may be used against you in cases that are far more minor than the high-level cases that the NSA troubles itself with. And unfortunately, the chances that your cellphone is being tapped either with a warrant targeting your activities personally or within a larger capture effort are fairly high. According to a joint investigation by USA Today and Gannett, at least 125 law enforcement agencies nationwide are making large captures of the cellphone data associated with thousands of Americans. These cellphone customers may be the subject of law enforcement investigations and they may not be. How are these captures being made and what do they mean for criminal defendants? Please check back in with us later this week as we continue our discussion on this pressing and disturbing issue. Source: Florida Today, “Special report: Police agencies can grab data from your cellphone,” John Kelly and Britt Kennerly, Dec. 9, 2013

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Self-incrimination defense may block forced decryption

The Fifth Amendment to the U.S. Constitution helps to protect Americans against self-incrimination. For example, when a criminal proceeding is initiated, accused persons may invoke their Fifth Amendment rights by refusing to testify at trial if they are concerned that their testimony may in any way help lead to their conviction. The Fifth Amendment protections against self-incrimination are sacred elements of both criminal justice law and of individual criminal defense strategies. In an era of electronic communication, the idea of what actions might constitute self-incriminating gestures worthy of Fifth Amendment protections have become more complex. As a result, it is critical that criminal law evolves with the times in order to avoid riddling Fifth Amendment protections with holes like Swiss cheese. In one recent case, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation filed a joint amicus brief in support of a defendant whose Fifth Amendment rights are being threatened by an order from the government. Government officials insist that this man must decrypt his computer, given that law enforcement officers have been unable to do so. The joint amicus brief insists that forced decryption of his computer is a violation of his right against self-incrimination. And the logic behind this argument is sound. Nowadays, Americans express themselves in such a wild variety of different ways that being forced to expose ourselves through actions like decryption can be every bit as damning as testifying on the stand, once a criminal proceeding has begun. It will be interesting to see how this case is ultimately resolved. Source: Courthouse News Service, “Forced Decryption Fought as Self-Incrimination,” Jack Bouboushian, Nov. 1, 2013

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Millions of former felons prohibited from voting

As soon as the holiday season is over, politicians all over the nation will begin campaigning in earnest for both local elections to be held in 2014 and congressional mid-term elections. Americans may not always exercise their right to vote, but it is a right that many have fought and died for. The choice to use one’s vote or to refrain from voting is personal. But the right that one has to make this choice is valuable beyond measure and should not be taken away unless absolutely necessary. According to a recent Sentencing Project report, more than five million American citizens are currently prohibited from voting due to their criminal records. Some bans are temporary, while others are permanent. Florida is one of only a handful of states that prohibit inmates, former felons, parolees and probationers from voting. Most states only ban some of these populations from voting. Once an individual is no longer an inmate, is no longer on parole and is no longer on probation, he or she will be allowed to vote again in the vast majority of states. But in Florida, many former felons may not vote even if they have served out their sentences. Our nation is currently embracing sentencing reform in regards to drug crimes, rehabilitation options for drunk drivers and transition assistance for former inmates struggling to make an honest living as they move back into wider society. Why then, are we still prohibiting so many people from exercising their right to vote, even after years and years have passed since they left prison and successfully completed terms of probation or parole? Source: MSNBC, “Presumed guilty: Ex-felons face barriers to voting rights,” Ari Melber, Nov. 4, 2013

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