Sunday, February 05, 2017

Trumps Muslim Ban EO vs The Court That Stopped It

Recently during a Twitter discussion about the Muslim ban EO, I was asked what precedent a judge has to block the EO that affects non-citizens & why the US Constitution applies to non-citizens & if it does, why doesn't it apply to everyone in the world? The inquiry was a genuine one, not a troll, so I'm more than happy to answer! In fact, I'm such a nerd, I enjoy getting to explain this stuff. Woohoo, nerd!

Okay, anyway, I'm assuming everyone knows that DT signed an EO preventing non-citizens, including immigrants & refugees (not the same thing, btw), from seven countries from entering the U.S. Unless you listen to only the "alternative facts" provided by the DT administration, you probably know this order was unexpected, causing many people to be detained at the airport when trying to enter and generally causing a clusterfuck at airports all over the county. Lastly, I'm assuming everyone has heard that a federal judge blocked the EO, essentially returning everything back to the way it was before the EO was signed.

Brace yourself...this is going to be a meaty discussion. There are a LOT of things that lead up to the court having the ability to block the EO, so we will have to cover them all.

First things first: how/why can a court block this or any EO?

Going way back to your civics class, you maybe learned about a case called Marbury v Madison. The facts of the case don't matter too much for this topic. What is important is that this case formally established the Court's power of judicial review. Judicial review is the Court's part in the whole checks & balances thing. Essentially, what it does is it allows the courts to review law & if it violates the constitution, the courts get to strike it down & it cannot be law anymore. That's important, because if the other branches of government can create laws or orders that violate the constitution, then the constitution becomes meaningless. So, the courts have the power of judicial review, which allows them to strike down laws/orders that are unconstitutional.

Next part of this whole thing: what exactly did the judge do?

The judge issued a temporary restraining order, prohibiting the enforcement of the EO until a more thorough hearing on the merits of the underlying claim can be heard. Essentially, what that means is that there are ongoing, pending lawsuits about whether the EO is in violation of the constitution or not, but the parties who are suing the federal government asked for an emergency order until they can get into court to argue the constitutional stuff. The court process can take a long time, so it's not uncommon to have these emergency orders available to prevent harm from happening while waiting for your court date. The hearings for these types of emergency orders are usually not as involved as the full hearing on the ultimate issue. The party requesting it just has to show it's likely that they'll win at the full hearing & that they will be irreparably harmed if the court doesn't grant the restraining order. Basically, these types of temporary restraining orders put the law on hold until it can be determined if it's constitutional or not.

So, the judge didn't actually strike down the EO. Rather, he simply said that enforcement of the EO should be put on hold until the litigation about whether it's constitutional or not is done. The judge DID find that it was likely that the plaintiffs (the states that are suing the federal government) will win in their suits, but he didn't actually decide that they HAVE won just yet.

The judge mentioned the court's role as a check on the other branches of government in his order, discussing how the court's role is to ensure the constitution is upheld. So he relied on the court's power of judicial review to issue the temporary restraining order.

Now, onto the specific questions re: the constitution applying to non-citizens.

First, the lawsuits & the request for a temporary restraining order was actually brought by a number of states, not individual non-citizens, so technically the court reviews the harm the EO causes to the states. Since the states are part of the US, they don't have to get into whether constitutional protections apply to non-citizens or not. The states argued that the EO ban affected the states' interest in a number of areas, like tax bases (fewer people in the states = less of a tax base), etc. You can read the order here if you want.

But, that doesn't answer the question about why do constitutional protections apply to non-citizens & if they do, why don't they apply to everyone all over the world? So let's turn to that.

Throughout the nation's history, there have been a number of Supreme Court cases that have specifically held that non-citizens are entitled to the protections found in the constitution. This article gives a nice breakdown on the cases.

The basic reasons that non-citizens get those protections is the wording of the constitution. In the Bill of Rights, we see the following language:

"...the right of the people..."
"No person shall be held to answer..."
"...nor shall any person be subject for the same offence..."
"...the accused shall enjoy the right to a speedy and public trial..."

Note that it never says "citizen." In fact, in the entire Bill of Rights, there is nothing mentioned about limiting the protections to citizens only.

Now, when you get to the 14th Amendment, you see this:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So we have a description of what makes someone a citizen and a prohibition on the states making laws that abridge the privileges & immunities of its citizens. But then, it goes on to say that the government can't do things that deprive any person of the right to due process & equal protection.

Which means, if you are within the jurisdiction of the United States, you are entitled to constitutional protections. They are not specifically limited to citizens only. There are some rights that are for citizens only, such as the right to vote or hold public office. But the protections apply to everyone within the jurisdiction of the United States.

It also doesn't matter if you are here legally or illegally. You get the same protections as citizens. Including the right to due process, which appears to be seriously lacking in the enforcement of the EO (more on that in a moment).

The reason those protections don't apply to everyone in the world boils down to jurisdiction. The US only has jurisdiction, or power/authority, over certain places. Anything considered to be US land or territory is arguably subject to its jurisdiction. So if you are in the physical borders of the United States, you are within its jurisdiction. That means you are subject to its laws & conversely, subject to its protections. It gets a bit more murky when looking at US jurisdiction outside of the physical borders of the nation, such as when dealing with places like Guantanamo Bay. The Supreme Court has ruled that at least some of the constitutional protections apply to places that are US-controlled like that, even though it isn't within the physical borders of the country. But it definitely gets less clear-cut on that front.

However, the main thing the courts look at in those situations is whether that out-of-country location is a place that is considered to be under the jurisdiction of the United States. If it's not, then the constitution doesn't apply. The laws of that government apply. Our constitutional protections apply only to people under our jurisdiction.

Now, let's talk briefly about due process, since that's a major issue in the overall argument against the EO. Due process means that if the government is going to take something from you, you have the right to challenge it and that if the government is permitted to take something from you, the taking needs to be done fairly. That's kind of an obtuse description, so it's easier to explain through examples.

In the criminal court realm, due process typically means "fairness." The right to an attorney to assist you so you aren't going up against the government on your own. The right to a public trial. The right to have a fair trial. Those things go to due process. If the government is going to take away your freedom by putting you in jail or prison, the process by which they do that must be fair.

But due process also applies to other areas of the law that aren't criminal law. For example, if the government wants to take your driver's license away, you have the right to a request a hearing to challenge that. The government can't just take it from you w/o providing you an opportunity to fight it.

This applies to a number of areas. Basically if the government wants to take something, be it your liberty, your property, your benefits, or your rights, they have to provide you with an opportunity to challenge it. They don't get to just snatch it away.

Due process applies even to benefits that the government has given to people, such as government assistance or, in the case of the EO, visas/ability to legally enter the country. In sum, no take-backsies just bc you changed your mind, Government. Once you give it, you can't take it back without due process.

Of course, that doesn't mean the government can never take back benefits its provided. Just that they can't do it w/o due process, where the affected people can challenge it.

Aaaand that's where the problem with the EO comes in. Or at least one of the problems. People had been given visas or other status that allowed them to legally enter & exit the United States. Many people have residences established here, jobs, rent, car payments, family, pets, school, etc. They left the country with the understanding that they were legally allowed to return. Then, for many people while they were in flight, the government suddenly & without notice took that away. They were no longer allowed to enter the country. They had not had any opportunity to challenge this & were suddenly blocked from returning to their lives here in the United States.

That's why the temporary restraining order makes sense. The people affected by the EO that have homes, families, obligations, work, school, pets, mortgages, etc. that were prohibited from re-entering the country were going to be irreparably harmed if the EO were enforced before they had an opportunity to challenge it. Even if they ultimately won the challenge, they may have lost their jobs, been evicted, had their pets die, have their car repossessed, missed too much school, etc. The judge's restraining order puts the EO on hold, which allows the affected people to have due process. And that's so important to our nation's system of government that when the 14th Amendment was written, it was written to provide due process to ALL people subject to the jurisdiction of the United States, not just its citizens.

Okay. Dense enough for you? Good! Then that's it for today.

Tuesday, January 24, 2017

There are rules to this sort of thing

I don't know why it's taken so long for social media to pick up this story from about a year ago regarding a court in Oklahoma ruling that oral sex on an unconscious victim wasn't forced sexual assault under the law, but suddenly it's popping up everywhere. And of course people are all pissed off and screaming about how stupid the court is and how they are blaming the victim and saying it's not sexual assault to take advantage of someone who is unconscious and (insert hyperbole here).

Everybody just slow your roll.

If you've been losing you shit at the court about it, either when the ruling came out last year or recently when it's in the Twitters and the Facebooks and what have you, you are doing it wrong.

I'll explain.

So, th legislatures make laws for their states. They write them, they argue about the particular language, they reach some agreement, it gets signed into law. Then, said law is now subject to interpretation by the courts. This is probably something you heard about in school when they taught you about the different branches of government. The legislative branch makes the law, the judicial branch interprets the law, and the executive branch enforces the law. #CivicsClassThrowback

So courts have to interpret the law that other people wrote. And fun fact: they aren't writing them so it's easy to read or understand. So interpreting them can be difficult.

But! There is something called the canons of statutory construction! Not to be confused with the cannons of statutory construction, where they just shoot books of statutes at you. No, CANONS. A.k.a. RULES. But canons sounds fancier so we use that.

There are a lot of canons. They cover a lot of things and it can be pretty dry and technical. But, the first rule of statutory construction club is we do not talk about statutory construction club. Wait. No. Wrong club. That first rule of statutory construction club is if the language of the statute is clear/plain, the court cannot interpret the statute at all. The plain language controls and there is no further interpretation by the court. Only if the statute is unclear may the court then move on to other canons to try to interpret the law.

For example: if the law said "No one can drink that water from any outdoor man-made pool" that is clear. No drinking from any outdoor, man-made pools. However if the law said, "No one can drink from any pool of water" that is not as clear. "Pool of water" can describe many things. A lake, a puddle, a swimming pool, a bay, a bucket of rain water, etc. So, in the pool of water law, the court could rely on the canons to interpret what the legislature meant. In the first one, they couldn't.

Real world example: in Minnesota, it's illegal to drive a car without insurance in any public roadway. Therefore, according to the plain language, you can drive an uninsured car on a private roadway. I have actually made this argument and won in the past. Plain language is what controls first.

In determining plain language meaning, the court is supposed to rely on customary use of words and dictionary definitions unless the statute says otherwise. For example, the common use of the word "sale" refers to exchanging money for goods or services. In Minnesota, the legislature has defined "sale" for drug charges to mean to buy, sell, give away, barter for, or transfer. So in those cases, the court must use the legal definition for sale because it's been specifically defined.

I haven't been able to find the exact wording of the Oklahoma statute, but from what I understand, the defendant was charged with oral sex by force on a victim who was so intoxicated she was completely passed out and that "by force" was the pivotal word.

Force, in customary usage, means with effort, exertion, something that requires more than ordinary movement, using strength, against resistance. That's why we can open a door or force a door open. One implies it opened with ease. The other implies resistance from the door that requires more effort.

A person who is completely unconscious cannot resist. Therefore, a person performing sexual acts on the passed out person does not have to use force. There's no resistance, no need to exert oneself, nothing beyond routine physical moments.

End of analysis.

But, but, but it's horrible! They took advantage of an unconscious person! It's forceful to do something against the other person's will! Other objection here!

It is horrible, it is taking advantage, but it's not force just because it's against the other person's will. If someone threatens to hurt me if I don't do something, and I do it to avoid getting hurt, I've been coerced. If I'm totally unaware of what's going on, I'm not being forced or coerced.

The first rule of statutory construction club is if the language of the statute is clear, the court cannot do any interpretation & must follow the plain language. End of analysis.

So, yeah, it sucks. It isn't fair to the victim. But the problem isn't with the court's interpretation. The problem is the law sucks. The law needs to be modified. It's not the court's job to make it fit. The legislature needs to do it. They make the laws.

So the court's determination in the case wasn't a tacit approval of the alleged actions. It was a ruling based on the constraints of the law. I'm sure they personally were disturbed by the allegations as any normal person. But that doesn't mean they can ignore the canons. They are bound to follow the rules even if they don't like the outcome.

So blame the legislature for making a law that wasn't good enough. Don't blame the court for doing exactly what it was required to do.

Also, if the court HAD gone beyond the plain meaning, they would have been activist. ACTIVIST JUDGES ARE THE WORST! Well, you can't have it both ways. They can't be activist only when it suits your cause.

Monday, January 23, 2017

New year, new hobby

In an effort to try to find things to help keep my depression at bay I have been taking aerial silks classes recently. I don't know what made me want to do it. It's a lot like climbing the rope in gym class, except prettier (in theory, when done correctly) and I never once was able to climb the rope. I also don't have a lot of upper body strength, which is a lot of what it is. But I have wanted to try it for awhile so I did when I was in Chicago over NYE and had a lot of fun.

So I found classes in Minnesota. I am not very good at it yet but I have managed to get up off the ground and even into a pose that I held for about 30 seconds. It's very hard and I hurt in weird muscles the next day but I am having a really fun time. Even when I look stupid and fall out of the fabrics, it's still fun. And it helps give me something to do that I enjoy and that can help keep me from being too overwhelmed by depression.

Here are some photos of my last class, including the pose I managed to do. My arms and chest muscles hurt a lot the next day!

Saturday, January 14, 2017

Objecting during trial: just because you CAN doesn't mean you SHOULD

Objecting during trial is always shown on tv & movies as a big deal where the attorneys are really upset by the question or answer & when something really important or damaging is about to come out. If you have never seen a trial in reality, the media tells you that if something is being objected to, it's because it's a big deal.

The reality is that oftentimes, objections are about procedural things & are not about some big, hugely damaging piece evidence. The question of what evidence gets to come in or not is dealt with before trial so there isn't typically some surprise damaging evidence. Usually, when I'm objecting, I don't even look up from what I'm writing down for my notes about the testimony. I usually just calmly say, "Objection, hearsay" or "objection, foundation." If I need to say more, I say "objection, may we approach?" So for me, it's never some "oh shit!" deer-in-headlights moment. It generally shouldn't be if I'm doing objections properly, although it could happen every once in a great while.

There's an art to objecting during a trial. The jury is watching everything you do & it's critical to remember that. If you object too much, especially if you are overruled, it looks like you are trying to hide something. That's bad, you don't want that. Sometimes, depending on the situation, you could technically object and even be right about your objection, but it's a better move strategically to not object. Just because you CAN doesn't mean you SHOULD.

I take the following things into account when deciding if I should object:

1. If I don't object, how damaging/improper/problematic will the evidence be? If it's something really minor, or it won't make a difference, maybe it's not worth objecting.

2. How many times have I made this same objection & what has the judge ruled on it so far? If I have made it a lot & lost, maybe I need to either let it go, put a continuing objection on the record, or come up with a different reason for my objection. Obviously, preserving the record is important so if I need to keep objecting on the same basis but I'm not winning, the continuing objection is a good way to get the objection in without looking bad in front of jury. A continuing objection is where you tell the court that you object to the entire line of questioning or of the witness or something like that, so you don't have to say objection every time. It's on the record that you are objecting to all of it.

3. Will objecting be more harmful for my case than not? Sometimes objecting to something draws even more attention to the thing & creates more harm than it does if you just let it go. For example, I've had cases where a witness testified about something & in passing, very quickly mentioned something objectionable. It wasn't great for my cases but it also wasn't super harmful either, especially since it was in the middle of a bunch of other stuff they were saying. I could object, but that may draw more attention to the problem testimony than if i say nothing. Maybe the jurors didn't hear it or maybe they didn't think it was important. By drawing attention to it, I make sure they notice it & that it's likely important. There are times when it's better to let it slide & not put a spotlight on it.

4. Is this worth it? This is where you tell yourself to pick your battles. Often, public defenders & prosecutors & other attys appear in front of the same judges over and over. The judges start to know you & know your style. Like anything, if you're constantly objecting (especially if you're losing) eventually you run the risk of just being the attorney who cried objection. You don't want judges to think that objecting to everything is just what you do & stop taking your objections seriously. As a related example, if a probation officer recommends on every single probation violation that the whole sentence should be served (known as executing the sentence), it loses meaning. If they only recommend execution of sentence on really egregious probation violations, the court is likely to take that more seriously. So, is it worth picking this particular battle?

5. Does it advance or help my case? Lots of time, I could object to small, procedural issues but I don't. For example, if the pros is using leading questions, but the questions aren't about things that I care about for my case, maybe I'll let it slide. Why? Bc it's not that important & I don't want to look like a pain in the ass to the jury.

There are times when it's better to let it go. As an example, let's say that the defense has a paid witness testifying to counter the state's expert. The defense does the direct exam & doesn't mention that the witness is paid by defense. State cross examine & doesn't ask. Back to defense for some redirect & then back to the state for re-cross. During re-cross, the state asks if the witness is paid by the defense for testifying.

Defense objects as outside the scope of redirect. This is technically correct. BUT is this an objection worth making? I would say no. 1. The defense will be able to ask more questions about whether being paid affects testimony, blah, so it will be given context. 2. Overall it's not super damaging to the case bc it's common for experts to get paid to testify. 3 Objecting runs the greater risk of making the defense look bad to the jury, no matter what the judge decides. The question is already out there. You can't unring the bell.

If the judge sustains the objection, the jury may assume you objected bc the witness IS paid & you are attempting to hide that from the jury. That's bad. If the witness wasn't paid, you probably wouldn't object. And if it wasn't important that the witness was paid, you wouldn't object. A jury may wonder if the reason you are objecting is bc you paid the witness to testify a certain way & you don't want the jury to know. And that's if you win the objection.

If the judge overrules you, then it comes out that the witness IS paid and now you really look like you were trying to hide that from the jury. Now they know for sure the witness was paid & that you didn't want them to know about it. And again, that makes you look suspicious.

The best way, in my opinion, to handle that situation? Let the witness answer. Don't object. Would the objection be correct? Yes. But, does it help or hurt me? Is it going to advance my case? Is it worth it?

When it comes to objecting, it's an important tool at trial. But, it should be used intelligently & thoughtfully. Simply because it's possible to make the objection that doesn't mean you always should.

Tuesday, November 01, 2016

Why a juvenile record haunts you forever

Oftentimes, I hear people say things to me like, "It's just juvenile offenses, those don't count." Or "It's a juvenile record so it was supposed to be dropped off." There is a pervasive belief that a juvenile record doesn't count for anything once the kid turns 18. People believe that juvenile records are sealed & can't be used against them in the future. This is a dangerous misunderstanding, bc juvenile records can & do have significant consequences that can last for years.

How can a juvenile record affect someone? Let's review:

1. If the kid is 16 or 17 & charged with a felony, it's public information. It's not confidential, like other juvenile charges. Anyone can find out about it. So the stigma of being labeled as a bad kid/bad person can start very early.

2. Certain juvenile adjudications will have lifelong consequences. Adjudication is what they call convictions in juvenile court. Since juvenile offenses are "delinquency" matters, not crimes, a kid can't be convicted, just adjudicated. In theory... For example, if you get a juvenile adjudication for a felony level "crime of violence" at age 11, you are permanently prohibited from using or possessing a firearm. For the rest of your life. FOREVER. The only way to get that changed is to specifically request that the court grant you the ability to have a firearm again. So, at 11, you can say goodbye to any career goals you had that involved handling a firearm as part of the job. Can't be a cop, in the national guard, can't work in any capacity where you'd need to use a gun. At 11, your career options have already been limited.

3. Planning on working as a CNA, a PCA, a daycare provider, or even just a janitor at a hospital? Make sure you don't have juvenile adjudications (or even charged!) for any number of offenses, because the Department of Human Services will disqualify you from working in any position in any place where you might have direct contact with clients/patients. I.e., the janitor at a hospital. Got into a fight at school when you were 15 & got charged with misdemeanor assault? You're barred from working in those DHS background check required jobs for up to 7 years or more. Doesn't matter that it's not a public record, the DHS can still see it & still ban you. Depending on the charge, it can be a 7 year, 10 year, 15 year, or lifetime ban.

4. If you are a kid who gets charged with an offense that requires an adult to register as a predatory offender, be prepared to register as a predatory offender while you're a kid. And possibly into adulthood depending on how long your registration period is. Even if you end up adjudicated for a different offense that doesn't require registration, if it was from that same incident, you still have to register.

5. If you were adjudicated for two felony level offenses after age 14 & get charged with a felony as an adult under the age of 25, your juvenile adjudications give you a criminal history point, which means your adult sentence is now going to be more serious/severe.

6. In Minnesota, certain crimes are enhanceable. That means having a conviction for that type of offense will automatically make another charge for that offense more serious. So if you've already been convicted of a misdemeanor assault & you get charged with another misdemeanor assault, that now becomes a gross misdemeanor just because you have a prior assault conviction. If you have 2 of them, it becomes a felony, even if it would otherwise be a misdemeanor for someone else. But this doesn't just apply to adult convictions. If you were adjudicated for an assault as a juvenile (fight in school, for example) & then get charged with an assault as an adult, that juvenile adjudication will make the adult charge more serious. Instead of a misdemeanor, you get a gross misdemeanor charge because of your juvenile adjudication.

These are only some of the consequences of a juvenile record. It's simply NOT true that these records are sealed or expunged or dropped off or have not effect on someone after they turn 18. These records can & do follow a person around forever, even if they never get in any legal trouble again.

The more you know.

Sunday, October 30, 2016

Let's Tone Down the Hysteria, It's Not Helping

I read this article today about local Minnesota communities passing restrictive city/town ordinances to prohibit Level 3 sex offenders from living within so many feet of various locations like schools, parks, etc. It's typically a knee-jerk reaction to a notification that a Level 3 offender will be moving into the community. And it's a problem.

First let's talk about the status of the law in Minnesota. Unlike many other states, Minnesota does not have a state law that restricts where someone convicted of a sex offense can live. There is a requirement to register the address(es) that the person lives at, the car they drive, the school they attend, etc. And if they are admitted to a hospital or something like that, they are required to notify the staff of their status as a registered offender. But they can live anywhere. There's nothing in state law that prohibits them from living next to a school or a park or whatever.

That's a good thing, despite what the general public thinks. We'll touch more on that in a minute, after we review more info about sex offense laws in Minnesota.

There are different levels given to certain people convicted of a sex offense, but those levels only are given to people who are sent to prison on the offense. So if a person is convicted of a sex crime & is given probation, they don't get assigned a level. There are 3 levels that the Department of Corrections gives to people before they are released. I don't know how the determination is made regarding what level someone is, but it is meant to label them based on how likely it is that they will reoffend in the future. Level 1 is least likely, Level 3 is most likely. I don't know how accurate those labels are, but it is the system the DOC uses.

When a Level 3 offender is going to be released back to the community, the community gets a notification about that person. They are given the name, age, and general location of where they'll be living & a general description of the crime they were convicted of. It's also possible to search for Level 3 offenders in a particular neighborhood on the BCA website.

Generally, Level 3 offenders have committed violent or multiple sex offenses or offenses against children. Not always, but in general. So when a Level 3 offender is released into a community after serving their sentence, the community usually flips out. They aren't exactly welcoming the person with open arms. Sometimes the person is targeted & attacked, other times they are vilified & harassed, sometimes people avoid them, etc.

But, communities, towns, & cities have started to create local ordinances that do what state law has refused to do--restricting where these people can live. The laws are meant to essentially prevent those offenders from moving into the locality. They are prohibiting a person from living within X feet of a park, school, daycare, etc. In the article, it also notes that the ordinance in Dayton also prevents them from living near an apple orchard or pumpkin patch or a bowling alley, among other places.

More and more ordinances like this are cropping up in Minnesota & it's a bad idea. In an effort to protect the public by passing these ordinances, the community makes it less safe.

First of all, Minnesota has a crazy amount of parks. Even the most podunk town is likely to have at least one within a stone's throw from it. So if the state law had geographical restrictions, these people would end up with no place to go.

Adding in other locations like daycares, school, pumpkin patches, etc. means that there are even fewer places available for these folks to live. Oftentimes, the ordinance effectively bans the person from living anywhere within the community.

Do these restrictions help? Well, according to this:

"The Minnesota Department of Corrections examined the 'sexual reoffense patterns of 224 recidivists released between 1990 and 2002 who were reincarcerated for a sex crime prior to 2006' and concluded that not one of the new offenses would have been prevented if residency restrictions had been in place."

Moreover, it goes on to say that:

"Study findings suggest that those with histories of any kind of criminal offense reintegrate more successfully when they are offered social support and opportunities to reintegrate into society through housing and employment."

And according to this article:

"Without exception, the longer offenders remain offence-free in the community the less likely they are to sexually recidivate."

And in this one:

"Empirical findings indicate that stable employment diminishes the risk for reoffending in sex offenders. A study conducted by Kruttschnitt, Uggen, and Shelton (2000) indicated that sex
offenders who were steadily employed were 37% less likely to reoffend."

"The best evidence linking housing stability and recidivism is found in a study of 81 child molesters(Willis & Grace, 2008): the authors identified housing as a significant predictor of sexual recidivism, even after controlling for other factors."

"With regards to social support, studies having evaluated the effectiveness of Circles of Support and Accountability (COSA) indicate that social support is associated with decreased recidivism in sexual offenders."

So, empirical research shows that people convicted of sex offenses are less likely to reoffend if they have housing, employment, & the social supports provided by a community. But instead of taking the research & implementing it, locales have barred these folks from finding the very things they need to lower their risk.

They can't get a stable place to live bc of housing restrictions, causing some to have live under bridges. They can't employment bc they don't have a residence or a phone for employers to call them for an interview or the employer won't hire someone convicted of a sex crime. The ordinances prevent them from attending church or going to a bowling alley or otherwise join community groups since they can't be in or around those areas. Essentially the ordinances strip away every possible risk-lowering factor available, under the guise of making the public safer.

The Level 3 offenders that are released to the community are under strict supervision. Oftentimes it includes GPS monitoring, curfew restrictions, movement & travel restrictions, etc. They are heavily monitored during the time immediately following their release into a community. The studies show that the highest chance of recidivism is the first few years after release from prison & the longer the person is out in the community without new offenses, the more the likelihood of a new offense goes down. So, getting these folks steady & stable after their release, getting them employment, a residence, and involved in their community all works to make the community safer & the risk lower.

So the ordinances are poor solutions to prevent future offenses from those convicted of sex crimes. They create an environment where these folks are at an increased risk of returning to criminal behavior.

The Minnesota legislature was intelligent enough to not create these types of restrictions in state law. Local ordinances should not be allowed to counteract that decision.

Wednesday, October 05, 2016

Brock Turner & why judicial discretion matters

Recently I was talking about the Brock Turner case on Twitter & a friend asked me to discuss it more in depth in a blog post. So, as requested, that's what I'm discussing today. I take requests now!

So first up, some background details since my friend has actually missed all the hype about this case. Brock Turner was recently convicted of sexually assaulting a woman. Both he & the woman were (are?) in college. It was a pretty bad assault. Two other guys happened to come up on Turner digitally penetrating the victim while she was passed out behind a dumpster & in pretty rough shape. Turner tried to run away when the other guys came up, but if I remember correctly, one of them was able to catch him.

He went to trial & was convicted. After trial (and after most guilty pleas) the defendant usually goes through a pre-sentence investigation of some kind, where a probation agent meets with the defendant & gets info about them & makes recommendations to the court as to what an appropriate sentence should be. The court can follow those or not. In Turner's case, the recommendations were that he be given probation. The state was asking for prison time. The judge went with the recommendation for probation & sentenced Turner to 6 months in jail (he ultimately served 3) followed by probation. The judge noted that Turner was an athlete & that it would be detrimental to his future if he went to prison & that he felt like the probation recommendations for probation were more appropriate.

The entire online world subsequently lost its collective mind over this sentence. There are efforts to have the judge removed from office bc of his ruling in the case. California, where the case took place, passed a law just recently as a result of the case mandating a specific amount of incarceration for a conviction like this in the future, so as to prevent a judge from doing something similar in the future.

So, that's the background info that led to my Twitter conversation about the case. Now onto the discussion portion.

I'm very much in the minority on this, but I don't support the backlash against the judge in this case, or the effort to remove him, or the new law requiring incarceration. I firmly believe judges should have discretion to craft what they determine are appropriate sentences for people. I loathe mandatory minimums. Mandatory minimums are a lazy way of handling the criminal justice system.

Mandatory minimums (referring to laws that require a mandatory minimum amount of time that has to be served if convicted of a specific offense) treat defendants like widgets on a factory line. Everyone gets treated exactly the same no matter what. In theory, that sounds great. No concerns about racism bc everyone gets the same sentence. No concerns about economic disparities bc everyone gets the same sentence. Etc.

The problem is that every case is different, every victim is different, every defendant is different, every set of circumstances is different. Yet mandatory minimums want to treat it as if every case is exactly the same. And the legislature makes mandatory minimums as a way of preventing a judge from making a thoughtful decision about a sentence. It's just, "well, you get this sentence bc it's a mandatory minimum." It's much more streamlined than actually parsing through information & making a decision. That's why it's lazy.

Let's do an example here of why mandatory minimums that treat everyone the same are problematic.

Scenario 1: A 29 year old man breaks into a home & violently assaults the people inside with a gun & gets convicted of a felony level offense for burglary & assault. Goes to prison, gets out. He has a long criminal history of violent offenses. Shortly after getting out of prison, he purchases from a friend a stolen gun that's been modified into a sawed off shotgun, which is illegal. He plans to go break in & assault another family. Because of his felony convictions, he's unable to use or possess a firearm.

Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 yrs in prison

Scenario 2: An 38 year old has a prior juvenile adjudication for a burglary from when he was 14. No other prior criminal history other than his juvenile adjudication. Family man, working full time, went to college, etc. He has struggled with depression for most of his life & one day it gets into his head that he should end things. He tells his friend he can't take it anymore & is going to kill himself. He takes his friend's gun & leaves. Friend calls the police to prevent him from killing himself. Police manage to find him before he hurts himself. Unbeknownst to him, his prior juvenile adjudication makes him a "felon" for purposes of the Felon in Possession of a Firearm law. Therefore, he is unable to use or possess a firearm.

Charge: Felon in Possession of a Firearm
Mandatory minimum: 5 years in prison

Now, those are two very, very different defendants with very, very different facts in their cases. But the mandatory minimum law doesn't care. It requires that both of those men go to prison for 5 years. It makes no difference that one man had a violent criminal history & the other had one juvenile adjudication. It makes no difference that one man was going to hurt others & the other was suicidal. Mandatory minimums do not care.

And in many places, the judges cannot do anything other than give the mandatory minimum, regardless of the circumstances of a case. In Minnesota, judges can depart from the mandatory minimums, but it is the defendant's burden to show why the judge should & it's extremely hard to get the court to do it. In all my time as an attorney, I have only gotten one once unless it was a part of a plea agreement. The requirements are that the court give the mandatory minimum in almost all cases.

The problem is that people & cases are widely different. Not everyone should get the same sentence, even if it's the same charge. In an effort to treat everyone the same, the law has become extremely draconian & unfair.

Judges are in a position to evaluate the person as a whole & the case as a whole. They have the opportunity to hear from multiple people in the case, including the probation officer, the prosecutor, any victims, the defense attorney & the defendant. They get to see confidential info on the defendant, like medical records, mental health records, treatment records, etc. They get to decide what an appropriate sentence is for a particular defendant in a particular case after reviewing multiple pieces of information. A judge may decide that one person should receive a more lenient sentence than another person or a more harsh sentence. That's the role of judges, to decide the sentence. That's judicial discretion.

Mandatory minimums strip judges of their discretion. It doesn't matter what the facts are or what the information is. Everyone is given the same sentence, regardless of whether it's appropriate or not in a given case. It's a cookie-cutter solution to criminal justice.

I'm sure people will say that without mandatory minimums, people will "get off" or not have consequences. But mandatory minimums are a sledgehammer solution. In an effort to make sure no one who should get a harsh sentence avoids punishment, the laws end up hammering people who don't deserve that severe of a punishment.

Judges are supposed to use discretion. They are supposed to craft sentences they feel are appropriate for a particular case & particular defendant. If we continue to chip away at judges' discretion & force them to give everyone the same sentence regardless of the situation, we may as well just get rid of judges altogether, since we'll just be an assembly line justice system, fully automated, no need to review each case individually. And that is a scary way of doling out "justice."

Thursday, September 15, 2016

I'm still hanging on

I'm still here. Still hanging on. It's not easy. Every day feels like a mountain to climb. But I'm still climbing. I don't really know why on some days but I do it.

I am still stuck in the sticks, which is soul crushing. But I do get to go to DNA training, which I've been wanting to do for awhile but didn't think I'd get the chance. Only a few of us get to do it & then we are supposed to help with others' cases involving DNA. So my boss wasn't sure if he wanted to burn a spot on me, knowing I don't want to stay in the area. I didn't expect that he would, although I really wanted to go. So it was a big surprise that he picked me as one of the people to go. It's pretty cool. I'm really excited about it. It's like one of the few silver linings I've got going for me lately.

I'm leaving for vacation tmrw, a road trip with my mom. Should be pretty good. Going to a couple national parks. It will be nice to get away for awhile. Maybe a change of venue for a bit will help brighten my mood, at least temporarily.

Thank you to all of you who have reached out in the comments to tell me you're thinking of me & sending good thoughts my way. It really means a lot. It helps me to feel less down. You all are the best. Thank you more than I can say.