Monday, March 18, 2024

Most Individuals Exonerated Last Year Were People of Color with Official Misconduct a Frequent Factor

The National Registry of Exonerations released a comprehensive report on exonerations in 2023. The Registry recorded 153 exonerations last year and nearly 84 percent (127/153) were people of color. Nearly 61 percent of the exonerees (93/153) were Black. 

New data show that wrongfully convicted individuals in the United States have received at least $4 billion in compensation since 1989 from state and local governments. The payout has nearly doubled in just five years since 2019, when compensation to exonerees in the U.S. totaled about $2.2 billion. This significant increase reflects the growing number of exonerations, and is one of the costs of wrongful convictions, particularly in Illinois, New York, and Texas. 

New York leads the pack with $1.1 billion total compensation, 70 percent of which was for damages in civil lawsuits (which are almost always paid by cities and counties), while in Texas, exonerees received $192 million, 86 percent of which was paid as state compensation. 

Jeffrey Gutman, special contributor to the National Registry of Exonerations and professor at the George Washington University Law School who collected the data, said, “This total will get bigger in the next few years, rapidly. The number of states that pay compensation to exonerees is growing. Many exonerees have claims that are still pending, and we'll keep seeing more exonerations of innocent people who spent decades in prison, probably at an accelerating rate." 

Since 1989, 50 percent of all exonerees and 53 percent of murder exonerees have received some compensation. But the amounts they received vary enormously. 

Official misconduct occurred in at least 118 exonerations (or 77 percent) in 2023. Seventy-five homicide cases—85 percent of homicide exonerations in 2023—were marred by official misconduct. Other contributing factors in various combinations included perjury or false accusations, false or misleading forensic evidence, mistaken witness identification, false confessions, and ineffective assistance of counsel. 

“This demonstrates once again a troubling reality in America’s justice system,” said Barbara O’Brien, professor at Michigan State University College of Law and editor of the Registry. “With 153 exonerations, predominantly affecting people of color, and billions in compensation paid since 1989, the toll of wrongful convictions is undeniable.” 

“Official misconduct continued to undermine the integrity of the most series cases, including those in which innocent defendants were sentenced to death,” O’Brien said. “And while compensation is being granted, it remains inequitable.” 

People exonerated in 2023 lost 2,230 years collectively for crimes they did not commit. That is an average of 14.6 years per exoneree for wrongful imprisonment. 

“The numbers are staggering. People exonerated last year lost 22 centuries of time all together,” said Ken Otterbourg, report co-author and Registry researcher. “Some innocent people go into prison as a young person and come out with grey hair. The vast majority of innocent people who were exonerated last year after being wrongly convicted of crimes are Black or Brown.” 

The top states for exonerations (in order) for 2023 were Illinois, Texas, New York, and Pennsylvania, with California and Oregon tied for fifth. The top four states accounted for 54 percent of the 2023 exonerations. 

The report found that 86 exonerations—56 percent of the 153 exonerations—were of defendants who had been convicted of murder, four of whom had been sentenced to death.

The report is available here.

Saturday, March 16, 2024

Hollywood has a gun problem

In my first job as a military adviser on a film set, I witnessed the stark contrast between the gun safety culture of my Navy SEAL days and the cavalier attitude toward firearms that permeates Hollywood, writes Kaj Larsen in The New York Times. During a break in filming, the lead actor, fresh off a stint as a teen heartthrob, picked up a gun and began waving it around, joking with the cast. Instinctively, I leaped toward the actor, grabbed the gun and gave him a hard thump to the chest, admonishing him for “flagging” the entire crew — using the military term for aiming a firearm at someone.

Later, I pulled him aside and drilled into him the cardinal rules of gun safety, rules that become second nature to anyone who handles firearms professionally: Always treat a gun as loaded. Never point it at anything you don’t intend to shoot. Keep your finger off the trigger until ready to fire. These aren’t optional guidelines but ironclad laws. If you’re going to handle firearms, even those loaded with blanks, I explained, you have a duty to master these principles.

The disregard for basic gun safety I witnessed that day wasn’t an isolated incident. It was emblematic of a problem in the film industry and a symptom of the profound contradictions in Hollywood’s attitudes toward firearms.

On movie sets, real guns, often modified to fire blanks, are commonplace. Gunfights and shootouts are staples of blockbuster entertainment, and the characters wielding those weapons, from James Bond to John Wick, are glamorized and idolized. Violence — often stylized gun violence — has long been a lucrative part of the Hollywood ecosystem. At the same time, Hollywood is perceived as a bastion of liberal politics and a leading voice in the push for gun control. After mass shootings, many actors and executives make impassioned pleas for stricter regulations on firearms. They use their influential platform to turn public opinion against American gun culture.

It’s a jarring contradiction, one that the industry has long ignored — but one that I believe it can no longer avoid confronting. The tragic shooting on the set of “Rust” in 2021, which claimed the life of a cinematographer, Halyna Hutchins, has cast a harsh spotlight on the consequences of a cavalier attitude toward guns. The details of the episode paint a picture of an environment where basic gun safety protocols were neglected. Live rounds were mixed with blanks. Firearms were handled with shocking nonchalance. The result was a cascading series of errors that culminated in a preventable death.

The conviction last week of the film’s armorer, Hannah Gutierrez-Reed, for involuntary manslaughter, and an assistant director’s plea of no contest to a charge of negligent handling of a deadly weapon, underscore the systemic nature of the problem. It’s not just about individual lapses in judgment but about a broader culture of laxity and disregard for the lethal potential of firearms on set.

The “Rust” tragedy should be a wake-up call for Hollywood. It demands a top-to-bottom re-evaluation of how guns are handled in the entertainment industry. The industry needs stronger safety protocols and more rigorous training, in conjunction with experienced and qualified armorers. It needs actors to educate themselves and respect the deadly power of guns, even those firing blanks. It needs producers and directors to prioritize safety over expediency. And it needs a system where anyone can speak up about unsafe practices without fear of reprisal.

Since Ms. Hutchins’s death, some in the industry have begun to take action. Guy Ritchie, a veteran action movie director known for films that prominently feature firearms, announced he would no longer use real guns on his sets, instead opting for airsoft pellet weapons. The actor Dwayne Johnson, whose production company is behind action films like “Red Notice,” committed to avoiding real firearms on his sets, even if it meant increased visual effects costs. Over 200 cinematographers also signed an open letter calling for a ban on functional firearms in filmmaking and refusing to work on sets that use them.

These are encouraging steps. But these actions need to be part of a fundamental cultural shift — one that brings to film sets the seriousness and respect for firearms that are drilled into military and law enforcement professionals.

The very language Hollywood uses, particularly the term “prop gun,” is emblematic of the problem. The phrase “prop gun” suggests something inauthentic, a harmless facsimile of a real weapon. This is a dangerous misnomer. The guns used in films are typically real firearms, often modified to fire blank rounds or to be nonfunctional. By referring to them as mere props, the industry perpetuates a false sense of safety, downplaying the genuine risks these weapons pose.

The military’s approach to gun safety is a stark counterpoint to Hollywood’s complacency. In the military, every round, whether blank or live, is treated as potentially lethal. Any exercise involving firearms involves multiple, meticulous safety checks. The final responsibility rests with the individual pulling the trigger, who must confirm the weapon’s safety before firing. It’s a culture of uncompromising discipline and accountability, where the consequences of complacency are well understood.

The most important lesson Hollywood can learn from the military is an ethic of shared responsibility — that everyone, regardless of rank, has a duty to ensure safety. In the Navy, if a young sailor crashes a ship while the captain sleeps, both are held responsible. In 2023 alone, the Navy relieved 16 commanding officers, some almost certainly because of the actions of their subordinates. That accountability is what’s sorely lacking in Hollywood.

The path forward is clear, if not easy. Hollywood must adopt a new ethic, one that treats guns with the seriousness they deserve. It must foster a culture where safety is paramount, where no one is too important or too busy to follow basic protocols. It must train its talent, its crews and its leadership to view gun safety not as an optional extra but as a core competency and a moral imperative.

The film industry has a unique power to shape culture, to lead society in grappling with complex issues. But it can’t authentically take on the debate around America’s relationship with guns until it resolves its own internal contradictions. It can’t advocate responsible gun laws while simultaneously glamorizing reckless gun use. And it can’t demand accountability from others while avoiding it on its own film sets.

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Friday, March 15, 2024

No basis to impeach, refer for criminal prosecution

Facing the prospect that they may never be able to impeach President Biden, House Republicans are exploring a pivot to a different strategy: issuing criminal referrals against him and those close to him, reported The New York Times.

In recent weeks, a political and factual reality has set in on Capitol Hill. Despite their subpoenas and depositions, House Republicans have been unable to produce any solid evidence of wrongdoing by Mr. Biden and lack the votes in their own party to charge him with high crimes and misdemeanors, the constitutional standard for impeachment.

Instead, top G.O.P. lawmakers have begun strategizing about making criminal referrals against Mr. Biden, members of his family and his associates, essentially sending letters to the Justice Department urging prosecutors to investigate specific crimes they believe may have been committed.

The move would be largely symbolic, but it would allow Republicans in Congress to try to save face while ending their so far struggling impeachment inquiry. It has the added appeal for the G.O.P. of aligning with former President Donald J. Trump’s vow to prosecute Mr. Biden if he wins the election.

And it would avoid a repeat of the humiliating process House Republicans, who have a tiny and dwindling majority, went through last month with the impeachment of Alejandro N. Mayorkas, the homeland security secretary. After initially falling short of the votes to impeach Mr. Mayorkas, Republicans barely succeeded on the second try, only to realize that the Democratic-controlled Senate was poised to quickly acquit him — or even dismiss the charges without a trial.

“There’s nothing that I’ve heard in the last couple of weeks that says that we are anywhere close to having the votes” for impeachment, said Representative Kelly Armstrong, Republican of North Dakota and the author of the resolution authorizing the impeachment investigation.

Mr. Armstrong said he believed criminal referrals were the much more likely outcome. Mr. Armstrong suggested House Republicans could make referrals regarding alleged violations of the Foreign Agents Registration Act in connection with international business deals by Hunter Biden, the president’s son, and suggested that the Justice Department investigate accusations of obstruction.

“I’m still interested in why we haven’t gotten better answers on the whole-of-government approach to obstructing all of these investigations,” Mr. Armstrong said.

Republicans say they are not finished with their investigation, and could still change course and decide to hold an impeachment vote. They have scheduled a public hearing next week with former business partners of Hunter Biden, though Mr. Biden himself has refused to appear.

 

In an interview, Representative Jim Jordan, Republican of Ohio and the Judiciary Committee chairman, said he was also demanding audio recordings of President Biden that were part of the special-counsel investigation by Robert K. Hur into his handling of classified documents.

Criminal referrals, Mr. Jordan said, were among the options “on the table” as the House G.O.P. moves forward.

Representative James R. Comer, Republican of Kentucky and chairman of the Oversight Committee, has repeatedly suggested in recent weeks that issuing criminal referrals could mark the end of the impeachment inquiry, rather than an impeachment vote.

“At the end of the day, what does accountability look like? It looks like criminal referrals. It looks like referring people to the Department of Justice,” Mr. Comer said in a recent interview with Fox News’s Sean Hannity. “If Merrick Garland’s Department of Justice won’t take any potential criminal referrals seriously, then maybe the next president, with a new attorney general, will.”

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Thursday, March 14, 2024

Cash bail is a sanction for poverty

On any given day, approximately 514,000 people are held in local jails across the United States. Though defendants are presumed innocent until proven guilty, more than 80% of the jail population are awaiting trial and have yet to be convicted of a crime, reported the Reason Foundation. Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant’s release, such as electronic monitoring or supervision through a pretrial services agency.

Monetary release conditions, commonly referred to as “cash bail” or “money bail,” are among the most common types of pretrial release conditions in the United States. Cash bail allows defendants to secure their release by depositing a specified amount of money with the court as collateral, providing a financial incentive for compliance during the pretrial phase. If a defendant appears as required through the disposition of their case, the bail amount is returned to them. If a defendant fails to appear in court as required, the bail amount is forfeited, and the defendant may face additional criminal charges or penalties.

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allow judges to also consider potential risks to public safety when making bail decisions. Under the right circumstances, cash bail is an appropriate tool for ensuring defendants cooperate throughout the pretrial period. However, many defendants cannot afford the cost of bail and are consequently detained for no reason other than their inability to pay.

Recent research suggests that bail decisions can result in defendants losing their jobs, coerce defendants into accepting plea bargains, and increase the probability that defendants are convicted. Given the potential negative consequences of pretrial detention resulting from an inability to afford cash bail, reform advocates have suggested limiting the use of monetary release conditions. Reforms to pretrial policy require policymakers to balance several competing interests, many of which are difficult to quantify. For example, it is not possible to quantify the normative value of the presumption of innocence or American’s Constitutional right to reasonable bail. However, research evidence can shed some light on the efficacy of cash bail for ensuring compliance during the pretrial period.

With some caveats, the studies included in this review collectively suggest that monetary release conditions like cash bail do not consistently improve court attendance and may not result in net crime reduction. Other factors, including indigence, drug use disorders, and criminal history, are generally stronger predictors of court attendance than the imposition of monetary release conditions. Conservatively, we can conclude that the United States relies too heavily on monetary release conditions. The bulk of available evidence suggests that curtailing the use of monetary release conditions among low-risk defendants would not result in dramatic drops in court attendance or increased risk of reoffending. There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety. Additional research is needed to evaluate more ambitious reform proposals.

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Wednesday, March 13, 2024

Creators: When Clemency Is Not Enough

Matthew T. Mangino
Creators Syndicate
March 11, 2024

Ever hear of Philip Esformes? If you haven't, chances are you will hear about him this summer or fall.

Philip Esformes was raised in an Orthodox Jewish community outside Chicago. His father, Morris Esformes, a rabbi, business executive and well-known philanthropist, made a fortune in the nursing home industry.

Philip eventually took over the family business, expanding the health care chain in Florida. According to The Washington Post, as Esformes' wealth expanded, he bought private planes, multiple residences and exotic cars; he drove a $1.6 million Ferrari and wore a $360,000 wristwatch.

The son of a rabbi was living the high life. That all came crashing down in 2016. Esformes was charged by the United States Department of Justice as part of the largest health-care fraud scheme ever prosecuted.

At the time, prosecutors said Esformes bribed doctors to put patients into his nursing homes, where they often received inadequate care or were given unnecessary services that were then billed to Medicare and Medicaid.

Esformes personally netted more than $37 million from the yearslong scheme. According to CNBC, a federal prosecutor described Esformes as "a man driven by almost unbounded greed."

The jury convicted him of 20 criminal counts at trial, but deadlocked on six other counts. A judge sentenced Esformes to twenty years in prison.

After his incarceration, Esformes immediately sought the influence of high-ranking former government officials to seek clemency. An attorney with the Aleph Institute, a Jewish charity affiliated with the Chabad-Lubavitch movement and frequent object of the elder Esformes' charity, began lobbying the White House. Esformes' team enlisted help from Edwin Meese and Michael Mukasey, two former U.S. attorneys general; and Larry Thompson, a former second in command at the DOJ.

With the support of then Attorney General William Barr, the fruits of their labor paid off. Having served less than five years of a 20-year sentence, Esformes walked out of federal prison. In the waning days of Donald Trump's presidency, Trump granted him clemency.

Esformes had seemingly caught a big break. He was a free man. However, the Biden Justice Department had a different idea. The DOJ announced that it intended to retry Esformes on the six counts that the jury could not reach a unanimous verdict.

Retrying a defendant on charges in which the jury is deadlocked, commonly known as "hung," is not unusual. Retrying a defendant after a few charges are hung but a majority of charges result in convictions is unusual. Retrying a defendant on hung charges after clemency is granted is also extremely unusual.

It was Trump who left the door open to new prosecutions. Trump granted clemency, cutting short the length of the sentence, on the 20 charges Esformes was convicted of but did not grant relief on the six charges he was not convicted.

The questions surrounding the case come down to whether trying Esformes again violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution — being tried twice for the same crime.

According to The Washington Post, prosecutors argued that if Trump had wanted to make sure Esformes could not be retried on the hung counts, "he could easily have done so" by granting him a pardon or specifically referencing those counts. "He did neither," they wrote.

Although the decision to retry Esformes was universally assailed on the "right," it appears to have been accepted by his legal team.

Last month, Esformes pleaded guilty to one count of conspiracy to commit health care fraud and was sentenced to time served, with prosecutors agreeing to dismiss the remaining five counts.

In the meantime, the Federal Court of Appeals affirmed the District Court's judgment on Esformes' original convictions and sentence, the restitution award of $5.5 million and the forfeiture judgment in the amount of $38.7 million.

It was a rather subdued conclusion to what started out as a highly charged decision by the DOJ. If this were any other year or any other time, that might be the end of the story. But this is 2024, anything is political fair game in the Trump v. Biden rematch.

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 www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Tuesday, March 12, 2024

Data Brokers sell people’s private data to the government

Fourth Amendment protects people only against unreasonable searches by government

The Federal Trade Commission is poised to ban a data broker from selling sensitive location data as the Biden administration just issued an executive order to limit sensitive data sales to certain countries of concern, reported Lawfare. Yet a major customer of these data brokers is the U.S. government itself. For yearsnews outlets have reported on how federal and state agencies buy Americans’ data from private companies called data brokers—in mass. 

These brokers purchase and aggregate users’ location data from virtually all applications. Brokers, in turn, repackage and sell geolocation data to willing buyers, including the federal and state governments. This has led to the government purchasing data on 98 million users from a prayer app, as well as tens of millions of users’ data from dating apps, mobile games, the Weather app, Google, rideshare apps, and social media apps. This data can reveal some of the most intimate information about people, from their faithpolitical associations and beliefsimmigration statuspregnancy status or interest in seeking an abortion, and more. A recently declassified report from the Office of the Director of National Intelligence confirms what has been known for years: Brokers sell people’s private data to the government. 

Matthew Tokson describes this practice and some of the attendant Fourth Amendment issues in a previous Lawfare piece. Government attorneys claim agencies can purchase data without a warrant because the data is commercially available, meaning there can be no reasonable expectation of privacy with respect to this data, and because users signed a terms of service waiver, meaning they forfeited their privacy rights in the data. Tokson ably responds to both arguments, and suggests that a reasonable expectation of privacy persists in the data.

But commentators miss a foundational problem that puts this practice outside the scope of Fourth Amendment protection: a government purchase of data is not “state action” for constitutional purposes. As I argued in the Yale Law & Policy Review, even if users maintain a reasonable expectation of privacy over the data transacted by data brokers, the violation of their privacy is not cognizable under the Fourth Amendment. 

The Fourth Amendment in the Information Age

The Fourth Amendment prohibits “unreasonable searches” of people’s “persons, houses, papers, and effects.” It is the cornerstone legal protection against warrantless surveillance and a constitutional bulwark for privacy. The Fourth Amendment ordinarily requires law enforcement and intelligence agencies to obtain a warrant to conduct surveillance—for example, tracking people’s locations and wiretapping phones. As the Supreme Court has long made clear, a “search” occurs when the government violates your “reasonable expectation of privacy.” Thus, when the police, FBI, or CIA invade this reasonable expectation of privacy, they (generally) must obtain a warrant. 

In the 2018 Supreme Court decision Carpenter v. United States, law enforcement agencies forced two internet service providers to hand over detailed cell-service location information data on a robbery suspect. The Court held that the suspect had a reasonable expectation of privacy in these invasive geolocation records. Thus, to obtain these records, the government needed a warrant. It stands to reason that when the federal government and state agencies purchase equally sensitive geolocation data from brokers, users have an equally reasonable expectation of privacy in the data sold by brokers as that addressed in Carpenter. (And under Kyllo, even commercially available data can be subject to a reasonable expectation of privacy, as both Tokson and I address elsewhere. That users signed terms-of-service waivers does not undermine users’ expectation of privacy, either.) 

So if users have a reasonable expectation of privacy in the data sold by brokers to the government, then why did the government need to obtain a warrant in Carpenter but need not obtain a warrant to purchase the data?

This is because of the “state action problem.” Axiomatically, the Fourth Amendment protects people only against unreasonable searches by the government, not against those conducted by purely private parties. When the Supreme Court first articulated the “reasonable expectation of privacy” test, it made clear that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion” (emphasis added). Thus, when a private citizen or company invades your reasonable expectation of privacy, those “invasions ... d[o] not violate the Fourth Amendment because of their private character.” Private searches, then, are not governed by the Fourth Amendment. (Instead, they are governed by common law tort and state statutes.) 

For the Fourth Amendment to require a warrant to purchase your data, then, the act of buying data itself must constitute a “search”–otherwise, there is no state action, and all that has occurred is a private search. 

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Monday, March 11, 2024

570% increase in devices to convert semi-automatic weapons into machine guns

 Communities around the U.S. have seen shootings carried out with weapons converted to fully automatic in recent years, fueled by a staggering increase in small pieces of metal or plastic made with a 3D printer or ordered online, reported The Associated Press. Laws against machine guns date back to the bloody violence of Prohibition-era gangsters. But the proliferation of devices known by nicknames such as Glock switches, auto sears and chips has allowed people to transform legal semi-automatic weapons into even more dangerous guns, helping fuel gun violence, police and federal authorities said.

“Police officers are facing down fully automatic weapon fire in amounts that haven’t existed in this country since the days of Al Capone and the Tommy gun,” said Steve Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF. “It’s a huge problem.”

The agency reported a 570% increase in the number of conversion devices collected by police departments between 2017 and 2021, the most recent data available.

Guns with conversion devices have been used in several mass shootings, including one that left four dead at a Sweet Sixteen party in Alabama last year and another that left six people dead at a bar district in Sacramento, California, in 2022. In Houston, police officer William Jeffrey died in 2021 after being shot with a converted gun while serving a warrant. In cities such as Indianapolis, police have seized them every week.

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