A
‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of
Discretion

Mark William Osler

University of St. Thomas – School of Law (Minnesota)

Mark W. Bennett

U.S. District Court (Northern District of Iowa)

2014

7 DePaul Journal for Social Justice 117 (2014)

U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-30

Abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

The U.S. Supreme Court recently agreed to decide whether a city ordinance authorizing police to search hotel and motel guest registries violates the Fourth Amendment. The case is City of Los Angeles v. Patel.

The Los Angeles municipal code requires hotels to maintain guest registries and to make them available to police inspection at any time without consent or a search warrant. Failure to comply with an officer’s inspection demand is a misdemeanor, punishable by up to six months in jail and a $1,000 fine.

Naranjibhai Patel and Ramilaben Patel are owners and operators of motels in Los Angeles. They challenged the city ordinance, arguing it was facially unconstitutional under the Fourth Amendment because it authorizes unreasonable invasions of their private business records without a warrant or pursuant to any recognized warrant exception.

The U.S. Court of Appeals for the Ninth Circuit, ruling 7-4, held that hotel operators have an expectation of privacy in their hotel registries.

Read more here.

But, before you become convinced that this case will decide what privacy rights you have when you stay at the Motel Six, be aware that Los Angles raised a question of whether a “facial challenge” is ever allowed against a law that allegedly violates the Fourth Amendment. In a facial challenge, the test is whether a law can be used in any case, no matter what the facts are.

There are at least seventy laws at the state and local level across the country that permit police to inspect hotel guest records without prior court approval. “These laws,” the Los Angles petition said, “expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers — an authorization which can be vital in the immediate aftermath of a domestic terrorist attack.”

The Washington Supreme Court has ruled that the state cannot put the burden on rape defendants to prove that an alleged victim consented.

The court had previously ruled that when a defendant claimed the contact was consensual, it was up to the defendant to prove there was consent by a preponderance of the evidence. The rulings essentially made consent an affirmative defense to a rape charge, the way a killer can claim self-defense in a murder case.

In a 6-3 opinion, the justices said those decisions wrongly interpreted U.S. Supreme Court precedent. Prosecutors must prove every element of a crime beyond a reasonable doubt, and making a defendant prove that there was consent got that requirement backward, they said.

“Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due-process principles,” Justice Debra Stephens wrote for the majority, saying it raises “a very real possibility of wrongful convictions.”

The full opinion can be found here.

There are states where the ballot expressly provides for a partisan ballot.  But, what if the state has a non-partisan ballot or even a prohibition against partisan politics in judicial races?  In Kentucky, U.S. District Judge Amul Thapar ruled that a candidate for a state district judgeship can say in campaign materials that he’s a conservative Republican.

The ruling in the case of candidate Cameron Blau invalidated a judicial ethics canon barring judicial candidates from stumping for election as a member of a political party, but it was not clear, the Associated Press said, whether the court’s order applied to every judicial candidate.

It also was not clear whether the Kentucky Judicial Conduct Commission would appeal the new ruling. Jeffrey Mando, a lawyer representing the commission, said, “I think that the canon is important because it supports the (state’s) compelling interest in diminishing the reliance on political parties in the selection of judges and it promotes the nonpartisan nature of judicial elections in Kentucky.”

Read more here.

From The Lawblog:

Judicial Elections: Races to Watch

By Joe Palazzolo

Supreme-court justices in 22 states will face the voters this Election Day, although in 14 they will be running in uncontested, yes-or-no elections.

The elections come as the struggle between corporate groups and trial lawyers to influence who sits on state high courts has broadened to include national political groups. Some races could alter substantially the alignment of state courts.

Here are a few to watch… [Keep reading here]

Robert Barnes has published a piece in the Washington Post about fun ways to follow the Supreme Court.

And while a justice’s decisions are drawn from years of legal experience, ideology, constitutional interpretation and a keen attention to facts, Josh Blackman thinks even high school students can predict the outcome. His Supreme Court fantasy leagues let thousands of enthusiasts play along.

…

Blackman, a professor at the South Texas College of Law, started his Scotus prediction site website because “I thought it would be a fun game for Supreme Court nerds.” But he was surprised at how many there were.

FantasyScotus has grown to have dozens of leagues such as “Big Dicta” and “You Can’t Handle the Ruth”–another tribute to Ginsburg, it appears–and players can compete for a $10,000 prize.”

The Associated Press reports:

A Maine judge has given nurse Kaci Hickox the OK to go wherever she pleases, handing state officials a defeat in their bid to isolate her.  The nurse who treated Ebola patients in Sierra Leone called it “a good day” and said her “thoughts, prayers and gratitude” remain with those who are still battling Ebola in West Africa.  The state sought to impose restrictions until Hickox’s 21-day incubation period for Ebola ends on Nov. 10.  The judge is requiring only daily monitoring and said she’s not a threat to the public. In his ruling, the judge wrote that “people are acting out of fear and that this fear is not entirely rational.”

The Associated Press reports:

Maine health officials obtained a 24-hour court order restricting Kaci Hickox’s movement after the nurse repeatedly defied the state’s quarantine for medical workers who have treated Ebola patients.

A judge granted the order Thursday limiting Hickox’s travel, banning her from public places and requiring a 3-foot buffer until there’s a further decision Friday.

The state went to court Thursday, following through with a threat to try to isolate her until the 21-day incubation period for Ebola ends no Nov. 10.  In court documents, the judge indicated further action was anticipated Friday.

Police remained outside her home Friday. Fort Kent Police Chief Tom Pelletier went inside the home briefly Friday morning and said afterward, “We just had a good conversation.”  He said he was not there to arrest or detain her.

Police were under orders to monitor her movements after she twice left home, once to talk to reporters Wednesday and again for a bike ride with her boyfriend on Thursday.

The legal action is shaping up as the nation’s biggest test case yet in the struggle to balance public health and fear of Ebola against personal freedom.

The title of this post is the title of this new paper by Nancy King, now available via SSRN.

Here is the abstract:

This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey.  It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted.

These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants.  For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.

Police in Florida aren’t allowed to use a cellphone to track someone’s movements, according to a sweeping new ruling from the Florida Supreme Court.  The decision can be found here.

The court, by a 5-2 vote, ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

Law enforcement had a warrant that allowed them to monitor the phone numbers of incoming and outgoing phone calls.  But, a majority of justices said that did not give them permission to track Tracey’s movements through location of his phone.

A defense attorney called the ruling an “enormous victory” for privacy rights.

One of the dissenting justices contends that people should have no expectation of privacy if they keep their cellphones turned on.