The Boston Case: Moving the Line on the Public Safety Exception

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Category: Criminal Law & Process, Prisoner Rights, Public
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My practice is nearly exclusively a criminal appellate practice, and it’s been that way for almost 10 years. Being a one-trick pony, I can’t help but think about legal issues in the news in the context of an imaginary appeal. Of course, recently the news was flooded with stories about the Boston Marathon bombing. The issue that grabbed my interest the most was all of the talk centered on not informing captured suspect Dzhokhar Tsarnaev his Miranda rights pursuant to the public safety exception.

The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.

First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?

If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed. Read more »

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New Prisoner Data Released: As Goes California . . . Well, Never Mind

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The Bureau of Justice Statistics has released the latest installment in its annual series on imprisonment in the United States, Prisoners in 2011. The BJS report is a treasure trove of data, but what does it all add up to?  The authors make clear from the start what they see as the lead “story” in the numbers:

During 2011, the number of prisoners under the jurisdiction of state and federal correctional authorities declined by 0.9%, from 1,613,803 to 1,598,780.  This decline represented the second consecutive year the prison population in the United States decreased.

As one reads on, however, it becomes clear that this declining prison population story is really just a California story.  Over calendar year 2011, California’s prison population dropped by 15,493 inmates.  During that same time, the overall U.S. drop was 15,023.  Absent California, then, the real national story is one of stability in imprisonment, not decline.

That California is a bellwether for the rest of the nation is a familiar cliche, but there is little evidence that the rest of the nation is following the Golden State’s lead in this area.   Read more »

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The American Prison in 1931: High Ideals, Harsh Realities

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Category: Criminal Law & Process, Legal History, Prisoner Rights, Public
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As part of my ongoing review of the work of the Wickersham Commission, I am reading the body’s 1931 Report on Penal Institutions, Probation, and Parole.  I’m much struck by the Commission’s ringing statement about the purpose of prison:

The function of the penal institutions is protection of society.  To this end all efforts must be bent and all administrative methods be adapted.  All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society.  This raises the question of how penal institutions can best contribute to this objective.  There seems but one answer possible — by the reformation of the criminal.  Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose.  If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community.  Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations.  (6-7)

This passage interests me for two reasons.  First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison’s function. Read more »

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Accommodation of Prisoners With Idiosyncratic Religious Beliefs

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Category: Prisoner Rights, Religion & Law, Seventh Circuit
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Under O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), prison officials may restrict inmates’ religious practices, but such restrictions are constitutionally limited to those that reasonably relate to legitimate penological objectives. The Religious Land Use and Institutionalized Persons Act offers additional, statutory protections. But talk of a religious practice normally conjures up the image of an organized religious group acting pursuant to shared beliefs. What are we to make of an inmate who seeks an accommodation based on an indiosyncratic “religious” belief that is not actually espoused by his or her sect? Must an inmate’s belief be officially supported by an organized religious group in order to receive legal protection?

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681)Read more »

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Dismissal for Failure to Prosecute Does Not Count as PLRA Strike, Seventh Circuit Rules

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Category: Federal Civil Litigation, Prisoner Rights, Public, Seventh Circuit
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Choosing form over substance, the Seventh Circuit ruled earlier this week that dismissals of a prison inmate’s repeated “unintelligible” complaints do not count as strikes under the Prison Litigation Reform Act, even though the cases should have been dismissed with prejudice for failure to state a claim. Paul v. Marberry (No. 10-3670). The PLRA requires prepayment of all filing and docket fees by inmate-plaintiffs who have three strikes — a requirement that may effectively doom lawsuits by indigent inmates. The PLRA specifies that a strike should be assigned for each action brought by an inmate that was dismissed for failure to state a claim.

Paul filed a series of complaints, each of which was initially dismissed without prejudice under FRCP 8(a)(2) for failure to provide a “short plain statement of the claim showing that the pleader is entitled to relief.” In none of the cases did Paul take advantage of the opportunity to file a new complaint in compliance with the rule. The district court then dimissed each case for failure to prosecute. Paul finally obtained the assistance of a fellow inmate who had better drafting skills and managed to file a complaint that did state a claim. However, the district court dismissed the new complaint based on the PLRA three-strikes rule and Paul’s failure to prepay his fees.

On appeal, the Seventh Circuit indicated that the earlier cases should have been dismissed for failure to state a claim instead failure to prosecute (5). But, given that the dismissal orders nowhere used strike-triggering language, the court held that they should not be counted against Paul:

[W]e think the plaintiff was entitled to take the previous dismissals at face value, and since none of them was based on any of the grounds specified in section 1915(g), to infer that he was not incurring strikes by the repeated dismissals. The statute is explicit, and the case law confirms, . . . that classifying a dismissal as a strike depends on the grounds given for it; since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. (7-8)

Cross posted at Life Sentences Blog.

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Ratner: Even Osama Should Have Had Criminal Rights

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Category: Civil Rights, Criminal Law & Process, Human Rights, President & Executive Branch, Prisoner Rights, Speakers at Marquette
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Michael Ratner would have treated the pursuit of Osama bin Laden as a law enforcement matter, not as a matter of war. He would rather have seen bin Laden arrested, brought to trial, and given the rights of a criminal defendant than shot on the spot by Navy SEALS.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

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California Parole May Be Broken, But Federal Courts Cannot Fix It

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Category: Criminal Law & Process, Prisoner Rights, Speakers at Marquette, U.S. Supreme Court
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By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.”  According to the California Supreme Court, the statute requires that there be ”some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.”  As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case. 

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point.  Read more »

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Seventh Circuit Backs Away From Apparent Circuit Split on Three Strikes Provision of PLRA

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Category: Prisoner Rights, Seventh Circuit
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Enacted in 1996, the Prison Litigation Reform Act raised numerous obstacles to prisoner rights lawsuits.  The “three strikes” provision of the statute, codified at 28 U.S.C. § 1915(g), is intended to bar prisoners who have a history of frivolous litigation from proceeding in forma pauperis.  IFP status results in the waiver of court filing fees that would otherwise be beyond that means of indigent litigants.  For most prisoners, in light of their limited financial resources, a denial of IFP status is the functional equivalent of a denial of access to the courts.

Last week, in Turley v. Gaetz (No. 09-3847), the Seventh Circuit backed away from dicta in earlier decisions that seemed to embrace an exceptionally and unnecessarily broad reading of the three strikes bar.  Had the court adhered to the earlier dicta, it would have opened a circuit split on a very important prisoner rights issue.

Here’s what happened.  Read more »

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