We don’t usually talk about sentencing on this site because sentences can vary widely between jurisdictions and from defendant to defendant based on the facts of the case and the particularities of the defendant.  But this is different.  On August 3, 2010, President Obama signed into law the Fair Sentencing Act which makes profound changes to the Anti-Drug Abuse Act of 1986.  These changes will help to make the criminal justice system more fair and help erase some of the built in racism of the 1986 measure.

The Anti-Drug Abuse Act of 1986, among other things, created the 100:1 ratio of crack to powder cocaine.  The 1986 law punished the sale of 500 grams of powder cocaine or 5 grams of crack cocaine with a 5 year mandatory minimum sentence.  Someone caught with 1,000 grams of powder cocaine or 10 grams of crack cocaine faced a 10 year mandatory minimum sentence.

Some of you may remember (and others of you probably learned in history class) that in 1986 the country was in the midst of “The War on Drugs.”  In 1983, the D.A.R.E. (Drug Abuse Resistance Education) was founded.  President Ronald Reagan called drugs a menace to society and vowed that there would be strong law enforcement.  First Lady Nancy Reagan made this her crusade, founding the “Just Say No” campaign aimed at school aged children.  During the 1980’s drug arrests in the United States rose 126%.

In the midst of this fervor, Congress passed a bi-partisan bill that was approved with almost no consideration of scientific evidence or the realistic consequences in money and human lives.

Looking back over the last three decades, we are seeing that this law disproportionately affects young black men.  Statistics show that African-American men are more often targeted by law enforcement for drug related offenses.  Almost 80% of the person’s sentenced under this law are African-American, even though most crack users are not black.

This disproportionate impact on one race, coupled with the staggering 18.4 billion federal dollar drug-control budget in 2000, the public disillusionment with the War on Drugs—finding that in October 2008 3 out of 4 Americans thought it was a failure, and President Obama’s promise of reform; combined to give us the Fair Sentencing Act of 2010 that was signed into law by President Obama on August 3, 2010.

This new law increases the amount of crack cocaine triggering a mandatory minimum sentence of 5 years to 28 grams and 280 grams is required to trigger the 10 year mandatory minimum.  The law also eliminated the 5 year mandatory minimum sentence for simple possession of crack cocaine.

For those of you that think this is a liberal easy on crime law, the new law increases the penalties for drug offenses that involve vulnerable victims, violence or a number of other aggravating factors.  The law will not be applied retroactively.  And for those of you looking at the federal budget, take a look at this stat:

The estimate from the Federal Bureau of Prisons is that it costs $25,895 a year to house each prisoner. According to the U.S. Sentencing Commission, eliminating the sentencing disparity between powder and crack cocaine would reduce the prison population by over 13,000 in 10 years.

That is a nice chunk of change to put towards something else that might make a difference in the lives of United States citizens.

New legislation puts Massachusetts in the forefront of States when it comes to criminal history records.  On August 6, 2010, Governor Duval Patrick signed a new bill into law overhauling the administration of the state’s Criminal Offender Record Information (CORI) system.

Here are a few of the highlights that will become effective February 6, 2012:

What is Reported

Under the old system, once you are arraigned on criminal charges, these charges appear on your record forever, even if the charges were eventually dismissed or you were found not guilty, unless you bring a court action to request sealing by a judge.

Under the new law, non-convictions will no longer appear on your record.

**However, we have yet to see how this will be implemented.  It is unclear whether cases where there has been an admission of guilty followed by a dismissal will be included or not.  For example, there is a common disposition in Massachusetts called a Continuation Without a Finding (CWOF).  How this works is that a defendant admits to guilt in open court.  The judge then finds that the person has admitted to sufficient facts for a finding of guilty; however, the judge does not find him guilty.  The judge instead puts the person on probation for a period of time.  If this individual successfully completes probation; then the case is dismissed.  If the person does not successfully complete probation; then they can be brought back before the judge who can then find them guilty and impose a sentence with no additional trial necessary.

Automatic Sealing

Under the old system, a person who was convicted of a felony could petition the court for sealing after 15 years so long as he has not been convicted of another crime during that time period.  A person who was convicted of a misdemeanor could petition the court for sealing after 10 years so long as he has no other convictions.  This was a difficult process because one often had to show some type of hardship for a judge to allow sealing.

Under the new law, felony convictions would automatically be sealed after 10 years and misdemeanor convictions after 5 years of the date of completion of any sentence so long as the person has not been convicted of any additional crimes.  This new law would eliminated having to hire a lawyer and file a formal petition with the court.

The Exceptions

Murder

This new provision does not apply to convictions for any type of murder.

Sexual Offenses

People with convictions for sex crimes will only be able to take advantage of this new law IF (1) they have no duty to register as a sex offender for a crime in Massachusetts; (2), they were never classified as a level 2 or 3 sex offender AT ANY TIME and (3) at present, are not required to register as a sex offender.  These are stiff requirement.  It will be virtually impossible for the vast majority of individuals in this predicament to qualify.

Crimes Against Public Justice

Convictions for things like perjury, witness intimidation, bribery of public officials, etc. are never sealable.  However, some common crimes are also unsealable under this exception like resisting arrest and firearm offenses.

(We will have to wait and see how this plays out in the real world.  Lawyers and defendants will need to keep this in mind when negotiating dispositions of cases in which there are multiple charges—some for sealable offenses and some for unsealable offenses.  It will also be important to track whether this new law changes what charges are taken out by law enforcement officials and prosecutors.)

Changes Affecting Employment

One of the biggest, most novel aspects of this new law takes effect this November 2010:

Employers will no longer be allowed to ask in initial job applications about a person’s criminal history.  This is key because most standard job applications asked applicants if they had ever been charged or convicted of a crime. If an applicant who had been convicted of a crime answered “yes,” he was almost always immediately eliminated from consideration for the job.

The exception to this of course is for (1) positions for which a federal or state law or regulation disqualifies an applicant based on a conviction; or (2) employers who are subject to an obligation under a federal or state law or regulation not to employ persons who have been convicted.

This does not mean that employers cannot ask about criminal history backgrounds in a face-to-face interview.  Nor does it mean that an employer is forbidden from basing a decision not to hire on a person’s criminal history.  However, if the employer is basing their decision not to hire on someone’s criminal history, that person must be so informed and provided with a copy of the records used by the employer to make this decision.

The new law also places limits on the amount of time one’s criminal history report may remain in an employer’s files.  An employer may not maintain a person’s criminal history report for more than 7 years from the date of decision not to hire or from an employee’s last date of employment.

Who Will Have Access to and Use of Sealed Records

Most employers will not have access to sealed records.  However, if you are searching for employment with the government, a government agency, in health care or with children; these employers will still be provided access to sealed records.

Courts will still have access to sealed records.  If after an in camera review by a judge (this means the judge and only the judge looks at the records) relevant sealed convictions will be admissible in restraining order cases, adoption, guardianship, child custody or other cases where custody, visitation, or safety of a person are at issue.

Last Note

This does not mean that the old sealing procedures have been replaced or are no longer needed.  People will still have the opportunity to petition a court for sealing prior to the date for the automatic sealing if they can show the court that sealing is in the interest of justice in their case and that they suffer a real hardship from there being general access to their criminal history.

In honor of our Independence Day celebrations I decided it would be appropriate to discuss an amendment that usually takes a back seat to constitutional conversations but has now jumped into the spotlight: The Second Amendment. The Second Amendment states:
“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

When I was in law school I remember being told not to worry about this one—It would not be on the bar exam and no one really knows what it means. Well, ladies and gentlemen, it has been resurrected and constitutional law professors will definitely be teaching it and classes will debate its meaning.

Quick History Lesson:
After we won Independence from England we ratified a Constitution and quickly thereafter we adopted a Bill of Rights. Originally this Bill of Rights, which included the Second Amendment, only applied to actions by the Federal Government. After the Civil War, the northern States were concerned about protecting the rights of the newly freed slaves from Southern oppression and passed the 14th Amendment. The 14th Amendment contained two important clauses: (1) Due Process, and (2) Privileges or Immunities.
During debates on the passage of the 14th Amendment, a recurring theme was the right of all citizen, white and black alike, to bear arms in self defense. However, shortly after the passage of the 14th Amendment, in the late 1800’s, the United States Supreme Court ruled in a number of companion cases that the 14th Amendment’s Privileges and Immunities Clause did not work to apply the Second Amendment to actions by the States.

Over the years the Due Process Clause of the 14th Amendment has been used to apply almost all of the rights guaranteed in the Bill of Rights to actions taken by state governments as well.
In 2008, the Supreme Court decided District of Columbia v. Heller, which used the Second Amendment to shoot down a ban on firearms. Keep in mind, D.C. is not a State, only federal law applies.
This year we learn that the Second Amendment applies to the States as well.

Amendment 1 Freedom of Speech, Assembly, Religion
Applies to both the Federal and the State governments
Amendment 2 Right to Bear Arms
After McDonald v. City of Chicago, this applies to both Federal and State.
Amendment 3 Protection Against Quartering Soldiers
The Supreme Court has never decided whether this applies to States.
Amendment 4 Freedom from Unreasonable Search and Seizure
This applies to both Federal and State governments.
Amendment 5 Double Jeopardy, Privilege Against Self Incrimination, Right to a Grand Jury Indictment and Right to a Lawyer Except the right to a Grand Jury, which applies only to the Federal, these rights are also applied to the State.
Amendment 6 Right to Jury in Criminal Cases, Speedy Trial, Right to Confront Witnesses, Right to a Lawyer
These rights apply to both Federal and State, except that you do not have a right to a unanimous jury verdict in State
Amendment 7 Right to Jury in Civil Cases
This has not been applied to the States
Amendment 8 Right Against Cruel and Unusual Punishment, Against Excessive Fines
The cruel and unusual punishment clause has been applied to the States but it has not decided on excessive fines

The Case: McDonald v. City of Chicago
A number of organizations and individuals challenged Chicago city ordinances that made it virtually illegal to own a firearm in Chicago. A city ordinance forbade ownership of unregistered handguns in the city of Chicago. Another city ordinance then prohibited the registration of almost all handguns; thereby making it virtually impossible to own a handgun with in the Chicago city limits.
The main plaintiffs, Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson, were all people who owned firearms but could not keep them in their homes because they lived within the area covered by the city ordinance. Some of these people had experienced violence first hand. Otis McDonald is a community activist who was working to rid his high crime neighborhood of gangs and gang violence. He had been the subject of numerous threats by drug dealers. Colleen Lawson was the victim of a home invasion. They all allege that they desired to keep a registered firearm in their home for self defense.

Relying heavily on the conclusions in Heller, the Court found that self defense is a basic, fundamental right. The Court also found that self-defense is at the heart of the Second Amendment. Handguns are the most preferred type of firearm to keep for self defense.
The Court held that through the Due Process Clause of the 14th Amendment, the Second Amendment applies to the States; and, therefore, the right of an individual to bear arms may not be completely abridged.

What does this mean
It is clear that this decision has the potential to be a nation wide shift in law making. However, it is difficult to say exactly how this change will come to pass. What we do know is that in the short run it means that Chicago must revamp their ordinances to comply with the constitutional requirement. But where is the line in the sand? This Court will undoubtedly allow some type of regulation, it will not be a free for all; but what exactly will be allowed has not been determined. The Court’s decision did not provide for a large degree of guidance in an area that has lain dormant for over 100 years.

Back in March I wrote an article explaining the Miranda warnings and what these rights are.  At that time I said that you could probably invoke your right to remain silent by just remaining silent.  Well, this has changed.  As of last week, you now must verbally tell the police you want to invoke your right to remain silent.

On June 1, 2010, the U.S. Supreme Court issued a ruling in Berghuis v. Thompkins.  One of the issues addressed in the case was whether the police had violated the defendant, Van Chester Thompkins, constitutional right to remain silent and whether the statement made by Thompkins was admissible against him at his trial.

THE FACTS

Thompkins was suspected of being the shooter in a drive-by shooting that left one man dead and another wounded.  During his interrogation, the police provided Thompkins with a written Miranda form that properly described his right to remain silent.  The police had Thompkins read one of the warnings out loud to make sure that he could read, write and understand English.  The police then read the entire form out loud to him.  The police then asked Thompkins to sign the form acknowledging that he understood his rights.  Thompkins refused.

Thompkins then remained virtually silent for 2 hours and 45 minutes of the interrogation.  At that point the police asked him if he believed in God.  Thompkins said “yes.”  The police then asked if Thompkins prayed to God.  Thompkins said “yes.”  The police then asked “Do you pray to God to forgive you for shooting that boy down?”  Thompkins said “yes.”

15 minutes later the interrogation was over.  Thompkins refused to sign a written confession.

THE DEFENDANT’S ARGUMENT

The defendant’s argument was that by remaining silent for such an extended period of time, he had invoked his right to remain silent and the police were required to ‘scrupulously honor’ this invocation by ceasing questioning.

The defendant further argued that since he had not waived his right to remain silent, the statement he gave was done so involuntarily and therefore is inadmissible against him in court.

THE COURT

The Court disagreed with the defendant.  The Court found that he had NOT invoked his right to remain silent and that by choosing to speak he had waived his right to remain silent and the statements could be used against him.

MEANING FOR US

What this ruling means in the real world is that in order to invoke your right to remain silent you need to say so out loud.  It is no longer enough to just sit in silence.  You MUST say to the police “I do not want to talk to you,” or “I am invoking my right to remain silent,” or something like that.  As of right now there is no rule about how long the police can interrogate you if you just sit quietly.  The Court said if you don’t say so, the police can’t know if you are invoking your right or if you are just trying to decide what you want to do.

Logically this makes sense.  However, what it does in effect is place the burden on the defendant to speak up before being worn down by police questioning.

If you are ever arrested, at the earliest possible moment tell the police that you want to invoke your right to remain silent and your right to an attorney.

The portion of the new law that is at issue states:

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

What does this mean for anyone living in Arizona or who plan to travel to Arizona?

What this means is that if you are approached by an officer you will probably have to show identification or risk arrest. 

Proponents of the law point out that it requires that the police be engaged in “lawful contact” and have “reasonable suspicion.”  Kris Kobach, a University of Missouri Kansas City Law School professor who helped draft the statute, said that ‘lawful contact’ limits the application of the law because it “means the officer is already engaged in some detention of an individual because he’s violated some other law.”

This is not the full answer though.

‘Lawful contact’ could also be interviewing a witness, interviewing a victim, security detail and investigation among other things.  Police engage with the public on a regular basis for multiple purposes.  Not every person that an officer engages with is suspected of cimmitting a crime.

Some people have started to voice concerns about the implimentation of this law.

A police officer in Tucson, Arizona filed a civil complaint to challenge the constitutionality of the law.  In the complaint he alleges that there is no way to enforce the law that would not involve racial profiling and stereotypes especially with respect to the highly visible and prominent Hispanic areas of the city:

“the skin color and/or physical features…the clothing worn by any person…a person’s linguistic capabilities in Spanish and/or English…listening to Spanish-language radio, watching Spanish-language television or playing Spanish-language music…the vehicle a person is in…the use of public transportation, commuter vans or commercial carriers…the license plate on a vehicle…does not provide any race neutral criteria or basis to suspect or identify who is lawfully in the United States.”

(For the full text of the Complaint go to:  http://lawprofessors.typepad.com/files/escobar-complaint.pdf)

In addition to concerns about racial profiling and police abuse, there are some real concerns that this new law could have some unforseen negative consequences.  Critics have pointed out that: (1) it adds to the distrust that already exists between people living in minority areas and the police, (2) it will further marginalize a segment of the population already lacking in a public and political voice, and (3) it will impede the reporting and investigation of crime.

In low income, minority neighborhoods police already enjoy a healthy amount of distrust from the public.  Police already have trouble investigating crimes because people are reluctant to help out of fear of deportation, harassment and retaliation from the criminals who live in the neighborhood. 

Despite these concerns….

This new law enjoys a 70% approval rating by Arizona voters.

What might be fueling this sentiment?

Here are some statistics that might be on the minds of the citizens of Arizona:

-          The federal government estimated that Arizona had one of the fastest growing illegal immigrant populations in the country, increasing from 330,000 in 2000 to 560,000 by 2008.

-          The Maricopa County Attorney’s Office has found that 22 percent of felonies in the county are committed by illegal immigrants. Illegal immigrants are estimated to be 10 percent of the county’s adult population.

-          Analysis of data from State Criminal Alien Assistance Program showed that illegal immigrants were 11 percent of the state’s prison population. Illegal immigrants were estimated to be 8 percent of state’s adult population at the time of the analysis.

-          In 2007, the Center for Immigration Studies estimated that 12 percent of workers in the Arizona are illegal immigrants.

-          In 2007, the Center estimated that illegal immigrants and their U.S.-born children (under 18) comprise one-fifth of those in the state living in poverty, one-third of those without health insurance, and one out of six students in the state’s schools.

Throughout American history citizens have sometimes enacted laws a s a gut reaction to fear or hot button topics.  Prohibition and the internment of Japanese-Americans during World War II are just two examples.  It is yet to be seen how the passage of time will affect our view of this new law.  We have yet to see how Courts will apply this law to the facts of individual cases and we are likely a number of years from a final decision regarding the constitutionality of the law.  For the moment we have to rely on the police officers entrusted with enforcement of the law do so with fairness and discretion.

For more facts and statistics check out:

Center for Immigration Studies

http://cis.org/Announcement/AZ-Immigration-SB1070

http://www.cis.org/ImmigrantCrime

Population Estimates http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2008.pdf

In 1966 the United States Supreme Court issued its decision in Miranda v. Arizona (BTW Miranda is a guy, his full name was Ernesto Arturo Miranda).  In that case the Court made a new rule that whenever someone is in custody and under interrogation, the police must inform them of the following rights:

1.         You have the right to remain silent.

2.         Anything you say can and will be used against you in court.

3.         You have the right to an attorney.

4.         If you cannot afford an attorney one will be appointed to you.

Different states have augmented this list to suit their respective constitutions and the makeup of their citizenry.  For example: In Massachusetts police often inform the person that they can stop questioning at any time.  And in a number of Border States like Texas and New Mexico, a person is informed that if they are not a United States citizen they have the right to contact their consulate.

But what do these rights really mean?

First off, the police are only required to provide you with these warnings when you are (1) in custody, AND (2) under interrogation.

“In custody” does not necessarily mean “under arrest.”  You are ‘in custody’ when you are not free to leave.  For example: A police officer stops you on the street and starts asking you questions.  If you can turn around and walk away from the officer and he lets you leave, you are not in custody.  If, however, you turn and start walking away and the officer says get back here and answer my questions or I am going to arrest you; then, even without being handcuffed or physically restrained, you are in custody.

“Under interrogation” means that the officers must be asking you questions or doing something to try to get you to talk.  This means that if you are arrested and the police are driving you to the police station and the police do not say a single word on the car ride yet you decide to shoot your mouth off and say things – you don’t get to argue that you didn’t receive your Miranda warnings.  However, this does apply in some circumstances where the police are having a conversation loud enough for you to hear that is really just a rouse to try to get you to talk.

Also keep in mind that this only applies to the police.  A Department of Social Services agent usually does not have to provide you with Miranda warnings, yet often what is told to that person is used in court against the speaker.

You have the right to remain silent.  Anything you say can and will be used against you in court.

This means exactly what it says.  Just because the police are asking you questions does not mean you have to answer them.  And, trust me, EVERYTHING you say WILL be used against you.  If you are arrested on a rape charge and in the car you are talking to the police about the Red Sox; the police will then testify about how cocky and sociopathic you are for chatting on about the Red Sox when you have just been told you are being charged with rape.

You have the right to an attorney.  If you cannot afford an attorney one will be appointed to you.

This one is a little trickier.  You do have the right to a lawyer.  However, you only have the right to a free lawyer if you are determined to be indigent.  And, in any event, you do not have the right to a lawyer right now.  Indigency is very low on the economic scale.  If you have a job you probably don’t qualify and it is up to you to hire your own lawyer (take a look at my article on how to hire the right attorney).  If you do qualify for an attorney, you will not be appointed one until you get to court.  Which means if you were arrested Friday evening you won’t be talking to a lawyer until sometime Monday morning.

Police Obligation

If you invoke your right to remain silent or your right to a lawyer, all questioning must immediately stop.  If you invoke your right to remain silent, after a period of time has passed the police can re-Mirandize you and continue questioning.  If you invoke your right to an attorney, all questioning must stop until you have been given access to an attorney.

There is no special language that you need to use to invoke this right.  However, you must be explicit enough so that the police cannot argue that they did not understand you were invoking your right.  There is a ton of case law about when a person’s language is enough to invoke a right.  Is it enough to say “I think I need a lawyer”?  Is it enough to say “I don’t think I want to talk about this anymore”?

It is always best to be explicit, say “I am invoking my right to remain silent and I want a lawyer.”