Tag Archive: laws


“Locking Teens Away”

Myth or Reality?

Juvenile offenders cannot receive a sentence of life in prison.

In the recent case of Graham v. Florida the Supreme Court barred juveniles from receiving life sentences. However, despite the barrage of media coverage of the case, the ruling obscured the fact that the ban on life sentences only applies to non-homicide cases. Kids who kill can still be put away for life even if they are emotionally immature or mentally unstable.  Take for example the recent conviction and sentencing of John Odgren  in Massachusetts. On January 19, 2007, a then 16 year old John Odgren followed James Alenson, a young boy he had never met, into the bathroom at Lincoln-Sudbury Regional High School, drew out a long knife and stabbed him to death. Because he was16 at the time, Massachusetts law required that Odgren be tried as an adult and he was charged with first degree murder.  Odgren’s attorney defended him by suggesting that he was delusional and psychotic at the time of the murder:  “Why did a geeky, uncoordinated, awkward 16-year-old who had never been in any trouble with the law suddenly and without provocation ferociously stab to death a 15-year-old classmate who he did not even know?”  He further told the jury: “The illnesses that John Odgren suffers from made him lose touch with reality”.    Odgren has attention deficit hyperactivity disorder, depression, anxiety and possibly bipolar disorder, and also suffers from Asperger syndrome, a form of autism whose symptoms include significant difficulties in social interaction, repetitive patterns of behavior and interests, physical clumsiness and atypical use of language.  The prosecution did not deny that Odgren had a history of mental illness but his condition was not serious enough to be considered legal insanity; he was not delusional and knew that his actions were a crime. The jury heard that Odgren had a history of secretly bringing knives to school and enjoying violent novels, as if he were carefully planning the “perfect murder’’. After two weeks of testimony, the jury found him guilty of first-degree murder a conviction that carries a mandatory life sentence without parole.

The Odgren case shows that juveniles can be sentenced to life in prison even if they suffer from serious mental disturbance short of insanity. The Court has ruled that it is illegal to sentence teens to death because of their immaturity and to life in prison for non-capital crimes presumably for the same reason. Yet age is not a bar for a life sentence if the crime committed is murder.

Writing Assignment

In an essay address the issue of whether a minor’s immaturity, lack of judgment and risk taking should affect their treatment. Is it fair to an innocent victim like James Alenson to excuse or shorten the punishment of his teenage killer because he was “immature”?

Source:  Patricia Wen, “Odgren sentenced to life in prison, No parole option for teen killer; Lawyer brands ruling ‘barbaric’,” Boston Globe, May 1, 2010

http://www.boston.com/news/local/massachusetts/articles/2010/05/01/odgren_sentenced_to_life_in_prison?mode=PF

Myth or Reality?

Unattractive defendants get convicted more often than attractive defendants.

By many accounts, beautiful people are more successful. Research has revealed that they get better jobs, earn more, are promoted faster, and so on. Is there any reason to believe the benefits of beauty are limited to careers and finances? According to a soon-to-be-published Behavioral Sciences and the Law study, the answer is no; unattractive criminal defendants are 22 percent more likely to be convicted than their attractive counterparts.

Cornell University researchers Justin Gunnell and Stephen Ceci organized student volunteers into two categories based on personality tests. The members of one group based their decisions on reason and facts; the other group had a tendency to be more emotional and give excess weight to legally irrelevant factors. Then Gunnell and Ceci presented each group with offender case studies, complete with the evidence that would have been presented, details surrounding the case, and of course the defendants’ photographs. Study participants more or less ignored looks in the serious cases and when the evidence was clear. However, when the offense was relatively minor and/or the evidence was shaky, there was a tendency to fall back on looks. When a weak case was combined with an unattractive defendant, the participants were more likely to convict. So it seems beauty pays dividends in the courtroom, too.

Writing assignment: An offender’s appearance is but one “extralegal” factor that seems to influence the likelihood of a conviction. What other extralegal factors affect sentencing? Several of these are discussed in chapter 9 of your book. Of the many extralegal factors that affect sentencing, when and why do they seem to matter? In what types of cases do they matter, and with what types of defendants?

Source: http://www.news.cornell.edu/stories/May10/AttractivenessStudy.html

Myth or Reality?

The television show “Law and Order” presented the “real” criminal justice system.

Law and Order” fans were devastated to learn that NBC cancelled the show on May 14, 2010 after a twenty year run (tying Gunsmoke (1955-1975) for longest running TV show).  How many of you grew up listening to that serious, unseen, disembodied voice (actually Steven Zirnkilton) intoning:

In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.

Law and Order’s popularity may be tied to a faithfully followed formula: A crime is discovered (typically by two people who happen to be walking by and accidentally discover a   body), then the lead detectives arrive and one gets to make a wisecrack just before the first commercial break. An investigation takes place and after a day or two, a suspect is identified who seems guilty, but whose alibi cannot be broken. Finally, using technical evidence collection such as pulling the suspect’s “phone luds” (Who could possibly know what a “lud” is?  Just kidding, “lud” is actually an  acronym for “line usage data”) they find out that someone placed 25 calls to the victim in the last two days, leading to an arrest of the real suspect, indictment, some legal setback (i.e. evidence is thrown out on a technicality), the  ADA depressed and ready to drop the case, a command by the senior DA to quit whining, discovery of some heretofore hidden evidence, the jury trial, an impassioned closing argument by the lead DA – first Ben Stone (Michael Moriarty), followed by Jack McCoy (Sam Waterston), and most recently Michael Cutter (Linus Roache),—and the verdict, which is typically, but not always, guilty as charged.  What drove the show and fueled its success was the promise that the stories were “ripped from the headlines”. The cast of criminals, witnesses and defendants were clever, educated and resourceful.  Few crimes were spontaneous, reckless or unplanned. Few criminals were poor, uneducated, drug addicted or desperate. In fact more seem to go to Hudson University than belong to a gang in my old neighborhood in the Bronx. The cops and attorneys never worried about overtime, families, pensions, promotions, working conditions, salary increases or any of the other things about which most cops seem concerned. No one minded spending all night on a case because no one, neither lawyers nor cops, seem to have had a family or any other sort of non-work obligation (e.g. the bowling league, a date). Most astonishing is that for twenty years just about every case got solved, every “perp” was identified, and most wound up in prison. And that just does not happen. So while we will all miss “Law and Order” a lot, it was in the end only entertainment, not reality.

Writing Assignment:

Since Law and Order re-runs are on TV about 6 hours a week, watch a couple and then using your knowledge of the criminal justice system, point out where the show’s content departs from reality. And giving it their due, point out where the script is faithful to the law (and order).

Myth or Reality?

U.S. prison populations continue to grow.

America has for decades locked up record numbers of offenders. Prison populations have grown year-to-year since 1972. Until recently, that is. For the first time in nearly 40 years, state prison populations have started to decline. According to a recent report by the Pew Center on the States, as of January of this year, there were 1,403,091 people under the jurisdiction of state prison authorities, 5,739 than at the end of 2008. There is still great variation from one jurisdiction to the next. The prison population declined in 27 states, but increased in 23 of them. Also, it is not clear whether 5,739 is a number worth getting excited about, as it is less than one-half of one percent of all prisoners. Finally, though no one knows whether or not this is the start of a new trend, the point is that for the first time in four decades, we have seen a reduction.

What explanations are offered for the overall reduction in state prison populations? One answer is diversion. Prosecutors who divert low-level offenders into probation, intermediate sanctions, and other programs help ensure fewer offenders are put behind bars. Another explanation is improved re-entry programs. Many prisoners are returning parolees, so when parole is improved and released inmates receive the treatment and benefits they need to be successful it is less likely they will go back to prison, which is reflected in prison population statistics. Yet another explanation is that people are becoming less willing to pay for incarceration and prison expansion, and instead favoring treatment and community-based programs.

Writing assignment: How has the current economic climate contributed to prison population reductions? Which states have released the most prisoners and what reasons have they offered for doing so?

Myth or reality?

Arizona v. Gant drastically limits police vehicle searches.

On August 25, 1999, Rodney Gant was arrested for driving with a suspended license. After he was handcuffed and locked in the backseat of a police car, officers searched the passenger compartment of his car and found cocaine in the pocket of a jacket that was sitting on one of the seats. A trial court denied Gant’s request to have the cocaine excluded at trial, but the Arizona Supreme Court reversed that decision, arguing that the search was unreasonable because, since Gant was locked up in the police car, there was no threat to officer safety or risk that the evidence would have been destroyed in the absence of an immediate search. The case then went to the U.S. Supreme Court, which held that the police can only search the passenger compartment of a vehicle following a lawful arrest when it is reasonable to believe that (1) the arrestee may have access to the vehicle at the time of the search or (2) the vehicle contains evidence of the offense of arrest. In essence, the U.S. Supreme Court decided the search of Gant’s car was unjustified and in violation of the Fourth Amendment.

The Gant decision altered the Supreme Court’s earlier decision in New York v. Belton, a case in which officers were essentially given carte blanche to search vehicle passenger compartments following lawful arrests. Belton was controversial because even if an arrestee was locked up safely and did not pose any security threat, officers could still search the vehicle passenger compartment without probable cause. They were basically able to avoid the Fourth Amendment’s probable cause requirement. Because Gant essentially overturns Belton, it has not been well-received by the law enforcement community. Indeed, there is a perception in many corners that the Gant decision strips the police of important aspects of their search authority. But there are always two sides to every story.

Gant is not a case that will forever alter the face of law enforcement. While it restricts police search authority to some extent, it is important to bear certain facts in mind. First, the decision was limited strictly to post-arrest vehicle passenger compartment searches—a relatively narrow type of search, and certainly not the most common. Second, in the event officers search a vehicle passenger compartment following an arrest, so long as they adopt a mindset that the object of the search is related to the arresting offense, they will be in the clear. And even if they seek evidence unrelated to the arresting offense, they may be able to discover and seize such evidence under the well-known “plain view” doctrine (see p. 204 in your book). Finally, if a person is arrested, he or she can no longer drive the vehicle. So what happens? The vehicle gets impounded, and the Supreme Court has long upheld vehicle inventory searches. These searches are not limited to the passenger compartment; they extend to the whole vehicle. If there is any suspicion that contraband is hidden in a car, an inventory search will uncover it.

Writing Assignment: Read the Supreme Court’s decision in Dakota v. Opperman (428 U.S. 364) and summarize the requirements for a valid vehicle inventory search.

Myth or Reality?

Registering sex offenders helps cut down on repeat sex crimes.

Last week our blog addressed the vexing issue of how to treat and control sex offenders. A few days later, on February 28, 2010 17-year-old San Diego high school student Chelsea King was abducted, attacked and killed while running in a San Diego, California park. Police investigators used DNA evidence found on the body to identify John Albert Gardner III, a repeat offender, as Chelsea’s alleged attacker, the same man who in May of 2000 pled guilty to molesting a 13-year-old female neighbor and served five years of a six-year prison term.

As we noted last week, there are now laws that permit state officials to indefinitely confine presumably dangerous sex offenders, even after they have served their prison terms. In addition, a number of promising treatment approaches are now being developed. For example, some sex offenders undergo a process called “arousal reconditioning,” in which a deviant sexual fantasy they may be unable to control is linked with a foul odor such as ammonia or skunk spray, or a disturbing visual image, in order to reduce or neutralize inappropriate sexual feelings. But no single treatment has yet proven totally effective.

Another approach has been to enact Megan’s Laws that create sex offender registration sites that the public can access via the Internet. These laws are named after Megan Kanka, a seven year old New Jersey girl who was raped and murdered by Jesse Timmendequas, a sex offender who had moved into her neighborhood after being released from prison. Today all 50 states operate some form of registration alerting the public to the presence of a known sex offender in their community.

While politically attractive and socially reassuring, does registering sex offenders really work? Not according to careful research conducted by Kristen Zgoba and Karen Bachar who found that while expensive to maintain, the system incorporated in New Jersey did not produce effective results. On one hand, sex offense rates were in a steep decline before the system was installed and the greatest rate of decline occurred prior to the pas­sage and implementation of Megan’s Law. They also found that registering sex offenders did not reduce the number of re-arrests for sex offenses, nor did it have any demonstrable effect on the time between when sex offenders were released from prison and when they were re-arrested for any new offense, such as a drug, theft or a subsequent sex offense.

So while the public may find comfort in knowing that sex offenders in their community are registered and monitored, it may be a false sense of security.

Writing Assignment: What would you do with repeat sex offenders who repeatedly prey on children? Treat and release? Monitor in the community? Or keep them incarcerated until there is absolutely no question they will re-offend? Should sex offenders be treated differently than other criminals?

Source: Kristen Zgoba, Karen Bachar  “Sex Offender Registration and Notification: Research Finds Limited Effects in New Jersey” National Institute of Justice  April 2009

http://www.ncjrs.gov/pdffiles1/nij/225402.pdf

Myth or Reality?

Sex offenders who do their time are released into the community.

While many incarcerated sex offenders are released at the end of their prison terms, some are immediately subjected to a second term of confinement in a treatment facility. Why? Several states have enacted laws that permit officials to indefinitely confine presumably dangerous sex offenders, even after they have been convicted, sentenced to prison, and released. For example, a Kansas law permits additional incarceration of a sex offender if the state proves beyond a reasonable doubt that the offender is “likely to engage in predatory acts of violence.” The Supreme Court, in Kansas v. Hendricks, decided that since Kansas’ law was treatment-oriented (rather than punishment-oriented) it did not violate the Fifth Amendment’s double jeopardy prohibition.

Lawmakers in Minnesota are currently debating whether to allow a $90 million expansion of their civil commitment program. Since its creation 20 years ago, the program has put 551 men and one woman in confinement after their sentences ended. And that number is on the rise, making Minnesota the state with the most civilly committed sex offenders.

States are expanding their civil commitment laws, too. Drug addicts have been subjected to civil commitment, as have people (including juveniles) with mental disorders. This may seem like sound criminal justice policy, and perhaps it is, but it is at least mildly controversial to confine someone twice for the same offense. What’s more, it is expensive. States have to spend more on civilly-committed offenders than prison inmates to ease critics’ concerns that the treatment facilities are simply prisons in disguise.

Writing Assignment: Find out if your state has a civil commitment law. Read the statute and determine which kinds of offenders are subjected to it and what procedures are used to confine them. If your state does not have a civil commitment law, find a nearby state that has one and make the same determinations.



Myth or Reality?

A State Can Legalize Marijuana

Some 700,000 Californians have signed an initiative to get the “Regulate, Control and Tax Cannabis Act of 2010” on the November ballot.  If it becomes law, the Act would allow people 21 years old or older to “possess, cultivate, or transport marijuana for personal use.” Other states have either legalized medical marijuana or tried to enact their own laws that make the drug legal in one form or another. None have succeeded. Why?

Marijuana is illegal under federal law. It is a Schedule I drug (meaning that marijuana is viewed has being highly addictive and having no medical value) under the Controlled Substances Act (21 U.S.C. Section 811). And since federal law supersedes state law via the U.S. Constitution’s Supremacy Clause, it would be illegal for a state to legalize marijuana—for any reason.

Former President Bush used this as justification for having federal law enforcement agencies raid medical marijuana dispensaries throughout the country during the latter part of his term. The Obama administration announced in October 2009 that it would not arrest medical marijuana users who obeyed state laws. Importantly, though, California’s initiative is not limited to medical marijuana. It calls for legalization across the board. This runs flatly contrary to federal law.

Proponents of California’s initiative cite the age-old revenue generation argument in favor of legalization. They claim that California, which is by several measures the most cash-strapped state in the union, could benefit enormously from the taxation of marijuana. If the initiative becomes law, California may profit handsomely from legalization if the Obama administration retains its “hands off” stance, but nothing says a Republican won’t get elected in 2012, or even that the current administration could change its tune at some point down the road. For marijuana to become truly “legal,” federal law needs to change first.

Writing Assignment: Identify another area in which a state has attempted to legalize conduct that is illegal under federal law. What were the consequences of its efforts?