Can the Government Proscribe Speech that Incites Criminal Activity?
The answer is maybe. This issue has taken on renewed interest in light of Amazon's decision to offer for sale and then pull-off the market, “The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct.”
Some have suggested that Amazon's decision to pull the book has violated the author's right of free speech as embodied in the First Amendment. A private entity, such as a book seller cannot violate an individuals right to free speech. The First Amendment applies to government intrusion on the rights of individuals, or the press, to speak freely.
Private entities censor content all the time. In fact, Amazon has a list of content restrictions. If a book publisher could not pick and choose based on content, then everyone who has ever submitted a rejected manuscript could argue that her right to free speech was infringed upon.
Now to the issue of the government intervening to legitimately restrict speech for purposes of public safety. In Brandenburg v. Ohio, 395 U.S. 444(1969), the U.S. Supreme Court refused to restrict speech, at a KKK rally, without a showing of "imminent lawless action." It is unlikely that the pedophile guide is inciting imminent lawless action, a guide book by its very title indicates conduct at some future time. The U.S. Supreme Court has said future conduct is not imminent.
However, there is a interesting federal decision out of the Fourth Circuit, Rice v. Paladin Enterprises, that held a book publisher civilly liable for a how-to-book for hit men that was used by a reader to commit three murders.
To read more: http://www.pbpulse.com/arts-and-culture/book-reviews-arts/2010/11/12/amazon-stops-selling-self-published-guide-for-pedophiles/
Friday, November 12, 2010
Homicide Rate Soars in Boston
Just this week I wrote about the rising homicide rate in Orlando, Florida, http://mattmangino.blogspot.com/2010/11/orlandos-homicide-rate-soars.html. The Boston Globe is reporting a similar dramatic increase in homicides in Boston. The number of people murdered in Boston has risen 46.5 percent since this time last year.
The Boston police commissioner suggested that the increase can be attributed to a combination of more people turning to the drug trade to make money and the release of drug dealers from prison. That combination has led to 63 homicides through November 8th of this year. At the same point last year, there were 43 killings. According to the Globe, there have been 21 homicides in Boston since September.
Are the soaring homicides rates in Orlando and Boston the result of a shift in crime fighting priorities? Nearly all of America has enjoyed unprecedented crime reductions. Unfortunately, when crime trends shift downward policymakers direct less attention, and less resources, toward crime fighting.
That shift in priorities does not come without consequences. Couple the misguided notion that crime is under control, and will continue to remain under control, with a struggling economy, state and local government budget woes, police officer layoffs, the early release of prisoners to save money and it is easy to understand the potential for a spike in violent crime.
Most states are at a crucial juncture, cut costs or provide for public safety. What is safety and security worth to the average citizen?
To read more: http://mobile.boston.com/news/local/massachusetts/articles/2010/11/11/surge_in_city_homicides_laid_to_drug_crime
The Boston police commissioner suggested that the increase can be attributed to a combination of more people turning to the drug trade to make money and the release of drug dealers from prison. That combination has led to 63 homicides through November 8th of this year. At the same point last year, there were 43 killings. According to the Globe, there have been 21 homicides in Boston since September.
Are the soaring homicides rates in Orlando and Boston the result of a shift in crime fighting priorities? Nearly all of America has enjoyed unprecedented crime reductions. Unfortunately, when crime trends shift downward policymakers direct less attention, and less resources, toward crime fighting.
That shift in priorities does not come without consequences. Couple the misguided notion that crime is under control, and will continue to remain under control, with a struggling economy, state and local government budget woes, police officer layoffs, the early release of prisoners to save money and it is easy to understand the potential for a spike in violent crime.
Most states are at a crucial juncture, cut costs or provide for public safety. What is safety and security worth to the average citizen?
To read more: http://mobile.boston.com/news/local/massachusetts/articles/2010/11/11/surge_in_city_homicides_laid_to_drug_crime
Thursday, November 11, 2010
Texas Backtracks on Prison Closings
Not long ago, Texas was exploring the possibility of closing prisons. Texas is America's "law and order" state. The Lone Star state has carried out more than a third of all executions nationwide. The idea that Texas would reduce its prison population came as a shock. I wrote about closing Texas prisons earlier this year, http://mattmangino.blogspot.com/2010/02/texas-closing-prisons.html.
Faced with a $20 billion budget shortfall, the Texas legislature proposed closing some state prisons to save money. Much was made of Texas' reinvestment in treatment as opposed to prison construction. However, those prisons that were nearly empty have slowly begun to fill-up.
Since May, when 153,977 inmates were housed in Texas’ 112 state prisons, the number has grown to 155,022 inmates, according to the San Antonio Express-News.
Texas policymakers cannot agree on the reasons for prison growth, most agree that if the trend continues, it could make decisions about cutting state spending even more difficult.
The Express-News reasoned that full prisons cannot be closed without releasing inmates, a politically unthinkable solution. That leaves treatment and rehabilitation programs — two areas where Texas has expanded its funding and has been successful in recent years at reducing its prison population — as the likely targets for significant cuts.
Texas, not long ago, touting its cutting edge treatment programs is now in the unenviable position of slashing those very programs.
To read more: http://www.statesman.com/news/texas-politics/cutting-prison-budget-could-be-challenging-if-inmate-1032688.html
Faced with a $20 billion budget shortfall, the Texas legislature proposed closing some state prisons to save money. Much was made of Texas' reinvestment in treatment as opposed to prison construction. However, those prisons that were nearly empty have slowly begun to fill-up.
Since May, when 153,977 inmates were housed in Texas’ 112 state prisons, the number has grown to 155,022 inmates, according to the San Antonio Express-News.
Texas policymakers cannot agree on the reasons for prison growth, most agree that if the trend continues, it could make decisions about cutting state spending even more difficult.
The Express-News reasoned that full prisons cannot be closed without releasing inmates, a politically unthinkable solution. That leaves treatment and rehabilitation programs — two areas where Texas has expanded its funding and has been successful in recent years at reducing its prison population — as the likely targets for significant cuts.
Texas, not long ago, touting its cutting edge treatment programs is now in the unenviable position of slashing those very programs.
To read more: http://www.statesman.com/news/texas-politics/cutting-prison-budget-could-be-challenging-if-inmate-1032688.html
Wednesday, November 10, 2010
Orlando's Homicide Rate Soars
Murder is Up 45 Percent Compared With the Same Time Last Year
The number of homicides in greater Orlando for 2010 have surpassed the total number of 2009 slayings, according to the Orlando Sentinel. This week marked the 45th killing of the year, compared with 33 last year.
Why?
"It's very difficult to prevent a homicide," sheriff's spokesman Jim Solomons told the Sentinel. "Usually a homicide is a spur of the moment, emotional act."
The Sheriff's Office has focused its efforts on trying to prevent violent crime by taking illegal guns and drugs, which could potentially lead to murder, off the streets, Solomons said.
Detectives and experts have long struggled to find a reason behind the rise and fall in homicides, and have mostly come up empty, reported the Sentinel.
Investigators have seen increases this year in domestic violence-related killings, which account for about one-third of the county's homicides so far this year. University of Central Florida sociology professor Jay Corzine said those slayings could be tied to the economic collapse.
"The poor economic conditions are affecting families," Corzine told the Sentinel, adding that the high foreclosure rate in the county could also be a contributing factor.
Deputies fear that the homicide rate could reach the high levels it did in 2008, when 73 people were slain.
"There is always a concern that we could go back to those record levels," Solomons told the Sentinel. "That is why we do things proactively, but sometimes it's just the way the cards fall.
"We could go a month without one and then we could have a three in a nine- to 12-hour period."
To read more: http://articles.orlandosentinel.com/2010-11-08/news/os-murders-orange-county-20101019_1_homicide-rate-orange-county-homicides-slayings
The number of homicides in greater Orlando for 2010 have surpassed the total number of 2009 slayings, according to the Orlando Sentinel. This week marked the 45th killing of the year, compared with 33 last year.
Why?
"It's very difficult to prevent a homicide," sheriff's spokesman Jim Solomons told the Sentinel. "Usually a homicide is a spur of the moment, emotional act."
The Sheriff's Office has focused its efforts on trying to prevent violent crime by taking illegal guns and drugs, which could potentially lead to murder, off the streets, Solomons said.
Detectives and experts have long struggled to find a reason behind the rise and fall in homicides, and have mostly come up empty, reported the Sentinel.
Investigators have seen increases this year in domestic violence-related killings, which account for about one-third of the county's homicides so far this year. University of Central Florida sociology professor Jay Corzine said those slayings could be tied to the economic collapse.
"The poor economic conditions are affecting families," Corzine told the Sentinel, adding that the high foreclosure rate in the county could also be a contributing factor.
Deputies fear that the homicide rate could reach the high levels it did in 2008, when 73 people were slain.
"There is always a concern that we could go back to those record levels," Solomons told the Sentinel. "That is why we do things proactively, but sometimes it's just the way the cards fall.
"We could go a month without one and then we could have a three in a nine- to 12-hour period."
To read more: http://articles.orlandosentinel.com/2010-11-08/news/os-murders-orange-county-20101019_1_homicide-rate-orange-county-homicides-slayings
Tuesday, November 9, 2010
Brutal Connecticut Home Invasion Results in Death Penalty
"You Have Been Exposed to Images of Depravity and Horror that No Human Being Should Have to See"
The Associated Press is reporting that jurors in New Haven Superior Court voted unanimously to send Steven Hayes to death row after deliberating over four days. Hayes was convicted of a night of terror inside a suburban home where a woman was strangled and her two daughters were tied to their beds, sexually assaulted and left to die in a gasoline-fueled fire. The home invasion generated national attention.
The judge, in thanking the jurors for their service, said, "You have been exposed to images of depravity and horror that no human being should have to see."
William Petit Jr., the husband and father of the victims, said the verdict was not about revenge. "Vengeance belongs to the Lord," Dr. Petit said. "This is about justice. We need to have some rules in a civilized society." He also said it wouldn't bring closure, saying whoever came up with the concept was "an imbecile," according to the Associated Press.
Defense attorney Tom Ullmann said Mr. Hayes, who had attempted suicide while incarcerated, smiled at the verdict. "He is thrilled with the verdict. That's what he wanted all along," his lawyer said.
According to the Associated Press, jurors were divided over whether Mr. Hayes really wanted a death sentence, but that argument did not play a big role in the deliberations. An early jury note indicated a division over a claim that Mr. Hayes was mentally impaired at the time of the crime turned out to be just a hypothetical example of a vote.
Mr. Hayes will be only one of ten men on Connecticut's death row. The state has only executed one man in the last 50 years. His accomplice, Joshua Komisarjevsky, will be tried next year. He also faces the death penalty. The Associated Press reported that prosecutors rejected offers by both men to plead guilty in exchange for life terms, their attorneys have said.
To read more: http://www.post-gazette.com/pg/10313/1101848-84.stm#ixzz14mtnxlr5
The Associated Press is reporting that jurors in New Haven Superior Court voted unanimously to send Steven Hayes to death row after deliberating over four days. Hayes was convicted of a night of terror inside a suburban home where a woman was strangled and her two daughters were tied to their beds, sexually assaulted and left to die in a gasoline-fueled fire. The home invasion generated national attention.
The judge, in thanking the jurors for their service, said, "You have been exposed to images of depravity and horror that no human being should have to see."
William Petit Jr., the husband and father of the victims, said the verdict was not about revenge. "Vengeance belongs to the Lord," Dr. Petit said. "This is about justice. We need to have some rules in a civilized society." He also said it wouldn't bring closure, saying whoever came up with the concept was "an imbecile," according to the Associated Press.
Defense attorney Tom Ullmann said Mr. Hayes, who had attempted suicide while incarcerated, smiled at the verdict. "He is thrilled with the verdict. That's what he wanted all along," his lawyer said.
According to the Associated Press, jurors were divided over whether Mr. Hayes really wanted a death sentence, but that argument did not play a big role in the deliberations. An early jury note indicated a division over a claim that Mr. Hayes was mentally impaired at the time of the crime turned out to be just a hypothetical example of a vote.
Mr. Hayes will be only one of ten men on Connecticut's death row. The state has only executed one man in the last 50 years. His accomplice, Joshua Komisarjevsky, will be tried next year. He also faces the death penalty. The Associated Press reported that prosecutors rejected offers by both men to plead guilty in exchange for life terms, their attorneys have said.
To read more: http://www.post-gazette.com/pg/10313/1101848-84.stm#ixzz14mtnxlr5
Monday, November 8, 2010
Tennessee Postpones Upcoming Execution
The Associated Press is reporting that the execution of a Tennessee Death Row inmate has been delayed for a three weeks. The State Supreme Court postponed the death of Stephen Michael West over the weekend.
West was set to die November 9th. That will now happen November 30th. The last minute ruling stems from a lawsuit filed challenging Tennessee's three-drug, lethal injection system. West's claims that Tennessee's method of lethal injection is cruel and unusual punishment.
West's lawyers continued that recent autopsy evidence from three executions indicate that the first drug, sodium thiopental, of a three-drug protocol used by the state does not render a convicted killer unconscious before the fatal drugs are administered.
West was convicted for killing a mother and daughter in Union County back in 1986.
West was set to die November 9th. That will now happen November 30th. The last minute ruling stems from a lawsuit filed challenging Tennessee's three-drug, lethal injection system. West's claims that Tennessee's method of lethal injection is cruel and unusual punishment.
West's lawyers continued that recent autopsy evidence from three executions indicate that the first drug, sodium thiopental, of a three-drug protocol used by the state does not render a convicted killer unconscious before the fatal drugs are administered.
West was convicted for killing a mother and daughter in Union County back in 1986.
Sunday, November 7, 2010
When does Miranda apply?
Youngstown Vindicator
Sunday, November 7, 2010
In 2005, a 13-year-old seventh grade special education student from North Carolina was suspected of a crime. The police went to his school to question him about a string of neighborhood burglaries. The police were informed that the student had a digital camera that had been removed from one of the homes.
The student was escorted from his class into a conference room, where he was interrogated by a police investigator in the presence of the school security officer, the assistant principal, and a school intern. His parents were not contacted, and he was not given any warnings about his constitutional rights, such as the right to remain silent or to have an attorney present during questioning.
Custodial interrogation
The student confessed to the burglaries and was arrested. Attorneys for the student sought to throw his confession out, suggesting that the “schoolhouse” interview was really a custodial interrogation.
The 1966 landmark U.S. Supreme Court decision of Miranda v. Arizona held that statements made in response to questioning while in police custody will be admissible at trial only if the prosecution can show that the suspect was informed of the right to consult with or have an attorney present during questioning and the suspect was informed of the right to remain silent prior to questioning. The prosecution must also show that the suspect not only understood the rights, but voluntarily waived those rights.
The North Carolina juvenile court ruled that Miranda did not apply. The student was not in police custody. The North Carolina Supreme Court agreed, “This court adheres to the view that the custody inquiry states an objective rule designed to give clear guidance to the police.”
An adult accused of a crime who is invited to the police department for questioning and who at some point is detained by police must be Mirandized, read his rights, prior to continued questioning. The North Carolina Supreme Court does not think that a learning disabled, 13-year-old is entitled to the same protections.
The U.S. Supreme Court has agreed to hear the student’s appeal. Although this case seems to beg for correction, don’t expect the high court to jump in and change the law in favor of an accused. The court has decided three Miranda cases in the last year, and none has favored those accused of crimes.
The U.S. Supreme Court decided Florida v. Powell, wherein the court found that ambiguous warnings were sufficient. In Maryland v. Shatzer, the court ruled that even after a suspect invoked her right to counsel, investigators could, after a 14-day hiatus, re-establish contact to further pursue interrogation. In Berghuis v. Thompkins, the court ruled that a suspect must specifically and unambiguously invoke his to right to remain silent; silence itself is not sufficient.
High Court decisions
Anthony J. Franze, co-counsel for the defendant in Florida v. Powell, examined the three Supreme Court decisions in a recent article for the Harvard Law & Policy Review. Franze suggested the following to emphasize how Miranda is evolving: The police can take an individual into custody, read him an ambiguous Miranda warning (Powell), and then question him for hours without a lawyer present. If the suspect does not speak up and unambiguously invoke his right to counsel or right to remain silent, police can persistently question him and use even a single, terse, one-word response after hours of questioning as an implicit knowing and voluntary waiver of his rights (Berghuis). If, by chance, the suspect does unambiguously invoke his rights, the police can release him for 14 days and then pick him up on day 15 to begin the entire interrogation process anew (Shatzer).
The U.S. Supreme Court has clearly moved to the right on the issue of Miranda. It will be interesting to see how the court rules on the North Carolina case. Parents entrust their children’s safety and well being to the administration and staff of their respective schools. Is it unreasonable for parents to expect that their children’s fundamental constitutional rights will also be protected?
Sunday, November 7, 2010
In 2005, a 13-year-old seventh grade special education student from North Carolina was suspected of a crime. The police went to his school to question him about a string of neighborhood burglaries. The police were informed that the student had a digital camera that had been removed from one of the homes.
The student was escorted from his class into a conference room, where he was interrogated by a police investigator in the presence of the school security officer, the assistant principal, and a school intern. His parents were not contacted, and he was not given any warnings about his constitutional rights, such as the right to remain silent or to have an attorney present during questioning.
Custodial interrogation
The student confessed to the burglaries and was arrested. Attorneys for the student sought to throw his confession out, suggesting that the “schoolhouse” interview was really a custodial interrogation.
The 1966 landmark U.S. Supreme Court decision of Miranda v. Arizona held that statements made in response to questioning while in police custody will be admissible at trial only if the prosecution can show that the suspect was informed of the right to consult with or have an attorney present during questioning and the suspect was informed of the right to remain silent prior to questioning. The prosecution must also show that the suspect not only understood the rights, but voluntarily waived those rights.
The North Carolina juvenile court ruled that Miranda did not apply. The student was not in police custody. The North Carolina Supreme Court agreed, “This court adheres to the view that the custody inquiry states an objective rule designed to give clear guidance to the police.”
An adult accused of a crime who is invited to the police department for questioning and who at some point is detained by police must be Mirandized, read his rights, prior to continued questioning. The North Carolina Supreme Court does not think that a learning disabled, 13-year-old is entitled to the same protections.
The U.S. Supreme Court has agreed to hear the student’s appeal. Although this case seems to beg for correction, don’t expect the high court to jump in and change the law in favor of an accused. The court has decided three Miranda cases in the last year, and none has favored those accused of crimes.
The U.S. Supreme Court decided Florida v. Powell, wherein the court found that ambiguous warnings were sufficient. In Maryland v. Shatzer, the court ruled that even after a suspect invoked her right to counsel, investigators could, after a 14-day hiatus, re-establish contact to further pursue interrogation. In Berghuis v. Thompkins, the court ruled that a suspect must specifically and unambiguously invoke his to right to remain silent; silence itself is not sufficient.
High Court decisions
Anthony J. Franze, co-counsel for the defendant in Florida v. Powell, examined the three Supreme Court decisions in a recent article for the Harvard Law & Policy Review. Franze suggested the following to emphasize how Miranda is evolving: The police can take an individual into custody, read him an ambiguous Miranda warning (Powell), and then question him for hours without a lawyer present. If the suspect does not speak up and unambiguously invoke his right to counsel or right to remain silent, police can persistently question him and use even a single, terse, one-word response after hours of questioning as an implicit knowing and voluntary waiver of his rights (Berghuis). If, by chance, the suspect does unambiguously invoke his rights, the police can release him for 14 days and then pick him up on day 15 to begin the entire interrogation process anew (Shatzer).
The U.S. Supreme Court has clearly moved to the right on the issue of Miranda. It will be interesting to see how the court rules on the North Carolina case. Parents entrust their children’s safety and well being to the administration and staff of their respective schools. Is it unreasonable for parents to expect that their children’s fundamental constitutional rights will also be protected?
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