Friday, September 4, 2015

Feds require warrant for StingRay cellphone surveillance

The Justice Department announced a policy that will require its law enforcement agencies to obtain a warrant to deploy a StingRay, a cellphone-tracking devices in criminal investigations and inform judges when they plan to use them, reported the Washington Post. The Justice Department policy does not apply to other departments or overseas investigations by the FBI and other agencies.
The new policy should increase transparency around the use of the controversial technology by the FBI and other Justice Department agencies. It imposes the highest legal standard for the device’s use and a uniform standard across the department.
The policy change is an acknowledgment by the Justice ­Department that the use of the devices — sometimes called StingRays, the name of one popular model — raises serious privacy concerns.
The devices are boxes about the size of a small suitcase that can help investigators locate suspects by identifying signals coming from their cellphones. But the machines, which simulate cell towers, also sweep up data from innocent bystanders in the suspect’s vicinity.
The data captured by the devices are serial numbers from cellphones, not GPS coordinates. The technology used by federal authorities does not capture ­e-mails, texts, contact lists, images or any other data from the phone, officials said.
Such devices have also been deployed on planes flown by the U.S. Marshals Service in pursuit of criminal suspects. Other federal agencies that have purchased the equipment include the Drug Enforcement Administration, Immigration and Customs Enforcement, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
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Thursday, September 3, 2015

Murder rates on the rise nationwide

Cities across the nation are seeing a startling rise in murders after years of declines, and few places have witnessed a shift as precipitous as Milwaukee, reported the New York Times. With the summer not yet over, 104 people have been killed this year — after 86 homicides in all of 2014.
More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier. In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.
Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing. Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.
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Wednesday, September 2, 2015

More Alabama death row inmates die of disease and suicide than lethal injection

Disease and suicide are claiming inmates on Alabama's death row faster than the executioner, reported The Associated Press.
With Alabama's capital punishment mechanism on hold for more than two years because of legal challenges and a shortage of drugs for lethal injections, five of the state's death row inmates have died without ever seeing the inside of the execution chamber.
John Milton Hardy, convicted of killing Clarence Nugene Terry during a robbery at a convenience store in Decatur in 1993, was the most recent death row inmate to die. Prison officials say he died of unspecified natural causes on June 15.
Convicted killer Benito Albarran, 41, hanged himself in the infirmary at Donaldson prison about two months earlier. A decade earlier, he was convicted of fatally shooting Huntsville police officer Daniel Golden outside a Mexican restaurant where he worked.
Golden's brother, David Golden, said family members wanted to witness Albarran's execution and felt cheated by his death.
"He took the coward's way out," Golden told reporters in Huntsville after Albarran killed himself.
Attorney Joseph Flood, who represented Albarran as he challenged his conviction in state court, said the inmate's mother died a week or two before he took his own life.
"He fell into a deep depression after that," said Flood.
In March, David Eugene Davis, 56, died of natural causes at Holman prison near Atmore after suffering from liver failure. He was convicted of killing Kenneth Douglas and John Fikes in St. Clair County in 1996.
Two more death row inmates died last year, Ricky Dale Adkins of cancer and Justin T. Hosch, who hanged himself at Holman prison. Hosch was convicted in Autauga County in the 2008 shooting death of Joey Willmore, and Adkins was condemned for killing real estate agent Billie Dean Hamilton in St. Clair County in 1988.
The last inmate put to death in Alabama was Andrew Reid Lackey, who died by lethal injection on July 25, 2013, for killing Charles Newman during a robbery in Limestone County in 2005. At the time, he was the first inmate put to death in the state since October 2011.
With 189 people currently on death row, the state is trying to resume executions, but legal challenges could be a roadblock.
The state is asking a federal judge to dismiss a lawsuit filed by death row inmate Tommy Arthur, who challenged the use of the sedative midazolam as inhumane during lethal injections. The U.S. Supreme Court has upheld the use of the drug in an Oklahoma case, but Arthur contends Alabama's execution protocol is different from the one used there.
The state switched to midazolam after it had to halt executions because it was out of other drugs needed for lethal injections.
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Tuesday, September 1, 2015

Massachusetts Supreme Court strikes down sex offender residency restrictions

In Massachusetts, cities and towns cannot ban sex offenders from living near parks and schools, the state’s high court in ruled, according to the Boston Globe.  The sharply worded ruling could invalidate local laws in 49 municipalities across the state.
The Supreme Judicial Court’s unanimous decision likened the restrictions to two dark chapters in American history: the forcible removal of Indian tribes in the 19th century and the internment of Japanese-Americans during World War II.
“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such as Native Americans and Japanese-Americans, may be lawfully banished from our midst,” Justice Geraldine S. Hines wrote.
Local officials who supported the restrictions decried the ruling and vowed to lobby Governor Charlie Baker and the state Legislature to pass statewide residency rules.
“It seems like the rights of children are taking a back seat to what is politically correct,” said Timothy Phelan, a former Lynn City Council president who sponsored the 2011 ordinance that the court struck down.
In recent years, state and local officials across the country have restricted where sex offenders can live, hoping to keep them away from children. The dominant view is that such rules, if applied statewide, are legal, said Daniel M. Filler, a Drexel University law professor. The problem, he said, has been with cities and towns passing a patchwork of local laws that simply force sex offenders to move to the next town.
“States have increasingly recognized that this is a problem that can only be solved at the state level because, if left to municipalities, it just becomes a game of one town after another putting up walls in their own jurisdiction,” Filler said.
In February, the New York State Court of Appeals threw out a Nassau County law that prevented sex offenders from living within 1,000 feet of a school, ruling that such local measures were preempted by a state law restricting residency for sex offenders.
In March, California’s Supreme Court struck down a portion of that state’s law that banned sex offenders from living within 2,000 feet of a school or park where children gather. The court found that such restrictions would have to be imposed on a case-by-case basis, not as a blanket policy.
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Monday, August 31, 2015

Federal court will determine if California death penalty is unconstitutional

A federal appellate panel will begin to determine whether California's "dysfunctional" death penalty system is unconstitutional, reported The National Law Journal.
The "dysfunctional" label was imposed July 16, 2014, by U.S. District Judge Cormac Carney of Orange County, who ruled in Jones v. Davis that California's death penalty violates the Eighth Amendment ban on cruel and unusual punishment. The state system, he held, is arbitrary and no longer serves the purposes of deterrence and retribution because of systemic delays.
The district court grounded its ruling in the Supreme Court's 1972 unsigned decision in Furman v. Georgia, in which it confronted systemic challenges to Georgia's and Texas' imposition and carrying out of the death penalty and struck down the punishment under the Eighth Amendment.
Furman was concerned with arbitrariness in imposing the death penalty at the sentencing stage.
In a concurring opinion, Justice Byron White wrote: "But when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution" or "society's need for specific deterrence" would be satisfied.
In the Jones case, Carney found similar arbitrariness in California's system, not at the front end when the sentence is imposed but at the back end when it is to be carried out. The system's dysfunction, he said, is evidenced by extraordinary delay and infrequency of executions.
He wrote that since 1978 when the death penalty was adopted by California voters, more than 900 people have been sentenced to death. Of that number, he said, only 13 have been executed.
The delays after sentencing exceed 25 years on average, he said, and are not the result of inmates' tactics, except perhaps in isolated cases. Instead, the reasons include lack of appointed counsel, underfunding of state habeas review, and failure to ensure full and fair review of constitutional challenges. The national average of time to execution was an estimated 12.5 years between 2000 and 2012. In 2012, the delay increased to 15.8 years.
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Sunday, August 30, 2015

Nebraska's repeal of the death penalty in jeopardy

The victory by death penalty opponents to abolish the death penalty in Nebraska now appears to be in jeopardy, reported Omaha World-Herald.
The pro-capital punishment group turned in nearly three times as many signatures as the 56,942 necessary to place the issue on the ballot, which is 5 percent of the number of registered voters in the state. The drive must also meet that 5 percent threshold in 38 of the state’s 93 counties.
Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box, which requires 113,883 valid signatures, which is 10 percent of the number of registered voters in the state.
Secretary of State John Gale released the exact numbers of signatures needed late Thursday. 
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was "a lot of significance" to collecting so many signatures.
"It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty," Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty — which was scheduled to go into effect on Sunday — is on hold until the count is completed.
"There will be some uncertainty in the law," Stenberg said. But, he added, "It’s not unusual to have uncertainty in the law."
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Saturday, August 29, 2015

GateHouse: Congress tries to get Smart on crime

Matthew T. Mangino
GateHouse Media
August 28, 2015
Congress is taking on criminal justice reform with zeal. There are approximately 94 bills pending in the House and Senate that deal specifically with sentencing reform. The newly reform-minded Congress is no surprise.
The spate of police shootings, the media hype over DNA exonerations and the growing support for legalized marijuana have seemed to generate the sympathy of the media, if not the public at large.
There is also movement among conservative lawmakers to reduce the costs of incarceration. Those costs are substantial and growing. In the last 30 years, federal prisons have grown by a whopping 500 percent and the resulting growth has increased costs by 1,100 percent. The federal prison budget hovers at about $6.9 billion.
Half of the 207,000 federal inmates are in prison as a result of drug crimes; and 20 percent of the overall prison expenditure is spent on inmates 50 years old and above.
Some of the pending legislation in Congress promising to lower prison costs includes the Federal Prison Bureau Relief Act of 2015 which suggests providing alternative release dates for nonviolent offenders; the Police Camera Act seeking to eliminate sentencing disparities; the Fair Sentencing Clarification Act of 2015 proposing to reduce certain cocaine sentences retroactively and the Prisoner Incentive Act of 2015 which seeks to give inmates more credit for “good time” in prison.
However, there are a couple pieces of legislation that merit a closer look. Members of Congress from both sides of the aisle have come together with Sen. Richard Durbin (D-IL) and Sen. Mike Lee (R-UT) who introduced the Smarter Sentencing Act (SSA). The act seeks to reduce the ballooning federal prison population.
The SSA takes on mandatory minimum sentences. The proposal seeks to reduce some mandatory minimums without removing all.
“Our current scheme of mandatory minimum sentences is irrational and wasteful,” said Lee, as quoted on the Brenner Center website “by targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”
The SSA hopes to expand the sentencing “safety valve” which allows a judge to part from mandatory minimum sentencing laws if certain conditions are met. This change is supported by over 60 percent of federal district court judges, many of whom object to mandatory minimum sentences.
The SSA would also institute retroactive application of the Fair Sentencing Act of 2010 for those sentenced under old crack and powder cocaine laws.
The SSA would also eliminate some mandatory drug sentences, allowing judges to determine the appropriate sentence. According to the Brenner Center, most individuals currently serving time for federal drug crimes receive penalties with a five or 10 year mandatory minimum, the bill would cut these penalties in half.
According to the Congressional Budget Office, the Smarter Sentencing Act could save the Department of Justice about $4 billion from 2015-2024.
Another piece of federal legislation worth another look is the Redeem Act introduced by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) which aims to keep juveniles out of the adult criminal justice system and incentivizes states to make it easier for formerly incarcerated adults to have their criminal records sealed, reported the Huffington Post.
All of this legislation applies to federal sentencing, prisons and inmates. The problem goes far beyond the federal government. Currently, more than 86 percent of prisoners in the United States are in state and local facilities, not federal prisons. There are a great deal of reform measures being proposed and implemented in states nationwide. The result is a mixed bag and a story for another day.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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