Friday, November 21, 2014

The Need to Seize the Abuse: Civil Asset Forfeitures and the Efforts at Reform

At a time when the public is becoming more aware and informed of law enforcement related abuse, some have begun to take note of one of the most common, and most profitable, forms of abuse: civil asset forfeitures.

In the aftermath of the September 11 attacks, the federal government encouraged state and local police departments to play a more active role in searching for both suspicious people and suspicious activity. This encouragement, reinforced with millions of dollars on training and education, has resulted in an environment in which police officers routinely confiscate money and property from individuals who have not been, nor are, accused of a crime. The government need only show by preponderance of the evidence that the property was being used for illegal purposes.

Alarmingly, in many states, law enforcement is able to take the seized property and sell it for a substantial profit. Cash seizures can occur on the federal level through equitable sharing, a Department of Justice civil forfeiture program created nearly three decades ago. Since September 11, there have been nearly 62,000 cash seizures totaling more than $2.5 billion. Only one sixth of these seizures were legally challenged, although in over 40% of the cases where there was a challenge, the government agreed to return the money.

On the federal level, the IRS has also participated in the seizure of property. Earlier this year, the IRS seized control of a restaurant owner’s assets without ever charging her with a crime, because they believed that she was structuring her deposits in order to avoid a reporting requirement. Disturbingly enough, bank accounts and cash are not the only things that the government can seize through civil asset forfeiture. Mere suspicion can result in the seizure of an individual’s automobiles and even residential property.

There are some who defend civil asset forfeitures, primarily on the ground that it aids the public because law enforcement officers are not only being taught how to identify suspicious behavior, but also the taking of money from a criminal constitutes the most effective type of deterrent. But it remains to be seen how these seizures assist in effective police work, particularly when nothing beyond mere suspicion is required for the initial seizure.
Of course, in addition to banning the use of “cruel and unusual punishments,” the Eighth Amendment of the Constitution also prohibits “excessive fines.”

In United States v. 434 Main St. Tewksbury, Massachusetts (D. Mass. 2012), the Department of Justice, with the assistance of local law enforcement officials, seized the property of Russell H. Caswell, a Massachusetts motel owner, contending that the motel rooms were being used to “facilitate” a crime. Critically, the government does not accuse the Caswells themselves of participating in the crime. Perhaps even more importantly, the government never asserts that the Caswells knew, or were even supposed to know, of the activity going on in their rooms at all times. The government’s primary basis supporting the validity of the forfeiture is that there have been five drug investigations at the hotel each year since 1994. On January 24, 2013, the court dismissed the forfeiture action, ruling that the government engaged in “gross exaggeration” of the evidence and did not have the legal right to seize the property. Additionally, the U.S. Attorney’s office announced that it would not appeal the court’s decision.

Encouragingly, both state governments and Congress have begun to consider ways in which this abuse on civil liberties can be reigned in, or outright eliminated. For example, Minnesota’s state legislature passed a bill in May that prevented law enforcement officers from keeping seized property or money if an individual is not convicted of a crime.  In Wyoming, the state legislature intends to sponsor a bill that similarly permitted law enforcement officials to seize and keep an individual’s assets without that individual ever being charged with a crime.  The bill would require the state to place a legal notice in a newspaper of general circulation detailing the forfeited property and notifying the relevant parties that they have sixty days to contest the seizure. If convicted, an individual can contest the forfeiture and have a hearing, in some cases before a jury.

Reform efforts have not been limited to state governments. Earlier this year, Senator Rand Paul introduced the Fifth Amendment Restoration Act that, among other things, would entirely eliminate equitable sharing. Similarly, Congressman Tim Walberg brought forward the Civil Asset Forfeiture Reform Act, which would transform the burden of proof in civil asset forfeiture proceedings, requiring governments to establish clear and convincing evidence that the property was being used for illegal purposes.

While many of the possible efforts at reform have been encouraging, the most encouraging reform would be transferring the burden of proof in civil asset forfeiture cases from a preponderance of the evidence to a clear and convincing standard. Furthermore, ending the practice of equitable sharing would help remove the incentive of local and federal law enforcement agencies to engage in these practices, particularly when no evidence suggests that the relevant individual has committed a crime. Removing the incentive of pursuing these civil asset forfeitures may lessen the need for prosecutors to try these cases in court. With more and more attention being paid to this disturbing conduct, defense attorneys may feel more encouraged to bring suit against the government, particularly if it lends more of a spotlight to these practices.  At a time when many individuals do not have the resources to bring suit against the government, reform may be the only way that individuals can hold onto their belongings. 

Omeed Assefi
Articles Editor, Criminal Law Practitioner

Photo by Province of British Columbia via Flickr

Tuesday, November 18, 2014

Jailing Lolita: Juveniles as Defendants in Prostitution Cases

“Imagine you’re a teenager . . . and you’re having your worst day, a day when you feel sad or ugly . . . and an older man comes up to you and tells you, with sincerity and warmth ‘you’re so beautiful’ or ‘you’re so amazing.’”  According to Alameda County officials, that’s how countless girls as young as twelve or thirteen are ensnared into juvenile prostitution networks.  Over the last three years, juvenile prostitution has proven to be a burgeoning problem in America’s urban environments.  According to the Department of Justice, over forty percent of all human trafficking cases are related to the trafficking of children for the sex trade.  

States have taken various approaches to dealing with this issue.  In Illinois, the legislature passed the Safe Children’s Act, stating that being beneath the age of 18 is a complete defense to prostitution.  The Texas Supreme Court held in In re B.W. that since children cannot form the requisite mindset to consent, they cannot form the requisite mindset for intent to solicit as a prostitute.  However, these cases are anomalous.  In the majority of cases regarding prostitution, the minors find themselves prosecuted.  In some states, nearly one hundred percent of juvenile defendants in prostitution cases that are found guilty are held either in juvenile detention facilities, or actual prison, despite the array of alternative sentencing options available for judges hearing juvenile cases.  In cases where the juvenile is not held for years in a juvenile facility, many children find themselves turned out on the street, with nobody to go back to other than their pimps.

Now, advocates of continued prosecution of juvenile prostitutes hold that it is necessary to “lock down” these defendants, usually in the service of obtaining evidence for a case against the child’s pimp.  Others hold that policies like Illinois’ blanket ban on prosecuting minors for prostitution effectively “decriminalizes” prostitution for children, and makes it more difficult to fight against prostitution writ large[i]. A much more odious argument comes from Georgia, where a Safe Harbor law that would have provided immunity, as well as community mental health and other aid was rejected by the State Senate after heavy lobbying from the Georgia Christian Coalition and the Georgia Baptist Convention. Sue Ella Deadwyler, a contributor to the ultra-right wing stated that if the law passed, “girls from fourteen to seventeen could decide that [prostitution] would be a great way to make money until they turn eighteen.”  These arguments are, at best, unpersuasive.  So, let’s dispense with them in turn.

First, it goes without saying that it is almost impossible to build a criminal case without witnesses that are willing to testify against a defendant.  Any decent litigator will tell you that cultivating a witness requires a certain degree of mutual trust between the witness, and his or her attorney.  This trust simply cannot germinate with the threat of criminal action being held over a child’s head, especially when juvenile prostitutes are immersed in a culture where pimps rely on brainwashing techniques to ensure reliance and trust in nobody but themselves.  Pimps instill a fear of law enforcement in the children, emphasizing the imminent prosecution that hangs over their heads if they are ever caught by the police.  States that currently prosecute minors for engaging in prostitution feed into this threat.

A stark illustration of this reality can be found in Nevada.  In Las Vegas, there exists no alternative to housing child prostitutes outside of incarceration in juvenile facilities.  These facilities are generally woefully underequipped to deal with the realities of the trauma that these girls face[ii].  Since Nevada law holds that juvenile proceedings are civil, rather than criminal in nature, the girls are not entitled to bail, and the only relief they can be given at the end of their hearings is release.  Release without support, and effectively thrusting the children into the same circumstances that led to their prostitution[iii].  Similarly, even keeping current prostitution laws on the books to “threaten” juveniles into testifying against their pimps belies the abuse that the girls faced, rendering many of them mentally unable to testify against their pimps.

Secondly, the idea that refusing to prosecute minors for prostitution creates a “loophole” that “decriminalizes” child prostitution ignores the vast body of laws that already exist that punish pimps and johns for exploiting and soliciting child prostitutes.  The only “loopholes” that would be created by ending the prosecution of juvenile prostitutes stem from the states’ inability or unwillingness to prosecute johns.

Finally, we get to Ms. Deadwyler, who apparently thinks that these girls willingly enter a life of prostitution because of “the good money.”  In Ms. Deadwyler’s world, the apparent cause of child prostitution is the fact that American Eagle wasn’t hiring one summer.  While it is easy to dismiss Ms. Deadwyler’s (presumably) saliva-flinging rants as general fringe rhetoric, her attitude is shared by a distressingly high number of law enforcement.  A study conducted in 2006 found that “on the whole, police officers do not . . . conceptualize youth involved in prosecution as victims of [commercial sexual exploitation.][iv]” This attitude stems from a pervasive and problematic double standard that society has created by ignoring domestic child prostitution.  With so much focus on human trafficking being international in nature, a climate has been created where “Katya from Ukraine is a victim . . . but Katrina from the Bronx is a criminal.”  A particularly jarring example came from the Bronx Family Court, where a twelve year-old’s prostitution charge was denied appeal, with the judge claiming that the defendant simply needed to learn “proper moral principles.”

With the sudden resurgence in dialogue about sexual assault in the country, and the blowback against rape culture and victim blaming, it should be unfathomable that state governments are codifying victim blaming against children in state law.  A blanket ban on prosecution of juvenile prostitution cases is a small step in the right direction towards protecting the most vulnerable people in the country.  More needs to be done, to work towards counselling and sheltering these girls, but it stands to reason that the very least that society can do is offer juvenile trafficking victims hope, and not handcuffs. 

Travis Nemmer
Staffer, Criminal Law Practitioner

[i] State's Response to Petition for Review at 7, In re B.W., 313 S.W.3d 818 (Tex. 2010)
[ii] Mark Soler et. al., Juvenile Justice: Lessons for A New Era, 16 Geo. J. on Poverty L. & Pol'y 483, 498 (2009)
[iii] Geneva O. Brown, Little Girl Lost: Las Vegas Metro Police Vice Division and the Use of Material Witness Holds Against Teenaged Prostitutes, 57 Cath. U. L. Rev. 471, 507 (2008)
[iv] Girls' Justice Initiative, Girls in the Juvenile Justice System: Perspectives on Services and Conditions of Confinement 1, 6 (2003)

Tuesday, November 11, 2014

Whitfield v. United States: De Minimis Movements

Whitfield v. United States
Docket No. 13-9026
Argument Date: Dec 2, 2014

On December 2, 2014, the Supreme Court of United States will decide whether 18 U.S.C. § 2113(e), which applies to a bank robber who forces another person to accompany him while in flight from the crime scene, requires proof of more than a de minimis movement of the victim.  § 2113(e) states: “whoever, in committing any offense defined in this section [bank robbery], … forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.”  Federal circuit courts differ on how to interpret the words “to accompany him.”  The Fifth and Tenth Circuits have held force-accompaniment only happens upon a showing of substantial movement of a victim as compared to what usually happens during a bank robbery.  However, the Fourth Circuit held that this section applies to all forced movements no matter how insubstantial.

On September 26, 2008, Larry Whitfield and Quanterrious McCoy tried to rob the Fort Financial Credit Union in North Carolina.  After their failed attempt, Whitfield and McCoy separated and fled.  Whitfield ran into Mary Parnell’s house where he attempted to contact a friend to pick him up.  At his time Whitfield engaged in conduct that caused his forced-accompaniment conviction.  Upon entering Parnell’s house Whitefield saw that Parnell started crying.  He then stated, “I don’t have no weapons and I’m not here to hurt you.  I just need somewhere to stay.”  In one statement, Whitfield indicates that he asked Parnell where he can hide and told her “to go into the computer room.”  This statement gives the implication of force.  However, another statement indicates, after asking Parnell where he can stay, that they both “just took … the first room” and sat down on the chairs.  These statements show de minimis force of part of Whitfield.  Shortly after, while Whitfield was trying to contact his friend, Parnell died of a heart attack.  Whitfield ran out of the house and was arrested in the woods.  McCoy is later found hiding under a parked car.  The Court of Appeals affirmed Whitfield’s conviction on the grounds that his conduct, no matter how insubstantial, falls under § 2113(e) forced accompaniment provision.

Whitfield argues that Congress intended the provision to apply in rare circumstances, such as when robbers take hostages to help them escape.  Legislative history on § 2113 called the provision the “kidnapping provision” after John Dillinger used human shields to flee from banks.  Therefore, Congress intended § 2113(e) to cover egregious conduct and not trivial, de minimis movement.  Also, the word “accompany” refers to substantial distance, and in this case Parnell only moved a few feet within her home.  Under the Government’s broad interpretation, if during a bank robbery any person is forced to move, the robber will face significantly higher penalties. Whitfield sees this as an extreme provision that Congress did not intend.

The Government, on the other hand, argues that the statute provides no support for the substantial distance requirement.  And the word “accompany” only refers to two or more people moving and does not require travel.  The forced accompanying of a bank robber is a terrifying experience that needs to be subjected to increased penalties.  The Government separates that all bank robberies that require forced movement by focusing on the word “accompanying.”  Accompanying is when the robber follows the victim after giving them a direct order and is different from forced movement generally.  And finally the requirement that the victim travel a distance seems arbitrary to the Government.  The distance test would be unpredictable and hard to mandate.

The Government’s arguments are weak but have found success because the defendant is not able to prove the statute says anything favoring its position.  The Government’s argument about accompanying makes no sense since robbers who force victims around the bank usually follow someone unintentionally.  I believe the Supreme Court will overturn the conviction of Whitfield on the basis that the movement being so trivial or de minimis it can fall under force-accompanied movement.

Written by Hassan Mukhlis
Staffer, Criminal Law Practitioner

Friday, November 7, 2014

The Federal Supervised Release System: Kicking an Offender Down When He Is Trying to Get Back Up

In 1984, the Sentencing Reform Act abolished the Federal Parole System and replaced it with the Federal Supervised Release System. Though the Federal Supervised Release System was supposed to serve the same rehabilitative function for offenders as the parole system, supervised release has led to many negative consequences for offenders. Instead of serving as a system promoting offender rehabilitation as Congress intended, the supervised release system has actually served as more of a leash, pulling offenders right back into prison.
Under the previous parole system, a defendant would be sentenced to a term of imprisonment and after serving the minimum sentence for his prison term, a parole board would determine whether the defendant was ready for release. When the inmate was released from jail on parole, a parole officer would then monitor him or her in the community. The effect of the parole system was that the individual was serving a portion of his or her jail time out in the community under supervision. It seemed reasonable that if one were let out of jail early, that there would be some type of supervision of the individual while out in the community completing his sentence.
Thus, in 1984 when the federal parole system was abolished and Congress instead promoted determinate sentencing, it appeared that there would no longer be a need for community supervision terms. Under the determinate sentencing system, inmates would now be serving their prison terms in jail completely. Yet, despite the new determinate sentencing guidelines, Congress began a new release system somewhat similar to the parole system, called the supervised release system. Under the supervised release system, a monitoring period can be imposed on a defendant in addition to his or her prison terms. Thus, unlike parole, which gives offenders an opportunity to serve the rest of their terms in the community and to reintegrate into society, conditions of supervised release serve as an added sentence once an offender has already finished his sentence of imprisonment. The supervised release system is harsh in that it requires the offender to serve his full time in jail and then to serve another sentence term outside in the community.

Under the prior parole system, the primary function was rehabilitation; the defendant’s supervision while out in the community helped to facilitate his transition back into the community. But now, the new supervised release system functions more to the offender’s peril: instead of helping offenders transition back into the community, the supervised release system serves more as an added punishment for an offender who has already served his jail time.   By placing substantial restrictions on individual liberty and affording offenders decreased constitutional protections, the supervised release system does not effectively help offenders to reintegrate into the community, but instead gives them more constraints.
The impact of the supervised release system has led to a lack of discretion by judges during sentencing to supervised release, severe restrictions on an offender’s liberty, and a high rate of offenders being sent back to prison. In most cases, supervised release is not mandatory and its imposition is up to the judge’s discretion. Yet, data shows that courts impose supervised release on defendants at very high rates, despite an offender’s criminal history and often despite the offense committed.  Over 95% of people sentenced to jail time in the federal system are also sentenced to supervised release.
Not only is supervised release overly imposed on defendants, but also supervision terms are overly restrictive on offenders. To begin, supervision terms are excessive. The average sentence for supervised release is almost three and a half years, which is a major increase on the time that the individual is under the control of the Criminal Justice System. If a defender violates his conditions of release over that period of time, even if it the offender is three years into his three and a half year supervision term, a court is authorized to revoke the offender’s supervision term and order him to serve in prison all or part of the term of his supervised release. The offender receives no credit for the three years he has already served on supervised release. And, in fact, revocation occurs quite frequently for persons sentenced to supervised release. Almost a third of individuals sentenced to supervised release will later violate their supervision and get sent back to prison.
The conditions of supervised release tend to be very restrictive and invasive. For instance, many individuals on supervised release are subjected to a finance condition, which allows the probation officer to access the individual’s personal finance information. Supervised release conditions may even affect an individual’s employment options, by restricting an individual from pursuing certain forms of employment.  These types of conditions help less with transitioning, and are actually more restrictive of the individual's freedom.

The greatest restraint on liberty is the diminished constitutional protections that persons on supervised release are afforded. Though offenders on supervised release effectively face a new term of imprisonment for violation of their conditions, defendants at revocation hearings are not afforded the same protections as defendants in criminal trials. Violations of conditions do not need to be proven beyond a reasonable doubt, but may be sustained simply by a finding of the preponderance of the evidence. A preponderance of the evidence standard only ensures a finding that it “more likely than not” that the offender violated his conditions. In addition to the low standard applied at revocation hearings, the rules of evidence also work differently at revocation hearings. Evidence typically excluded from criminal trials, such as hearsay testimony, are allowed at revocation hearings for supervised release. When facing such a low standard for revocation and less observance of the rules of evidence, offenders at revocation hearings are almost certain to be sent right back to jail at the conclusion of the hearing.

Thus, instead of helping offenders to reintegrate into society, the federal parole system has served as an added shackle, imposing further restrictions on individual liberty and denying them constitutional protections, which lead most offenders right back into the prison system. For these reasons, it is necessary for the Federal Supervised Release System to undergo reform. On one hand, the system could return back to a parole-like model, where defendants are serving the rest of their jail time under a term of supervised release. In this way, the offender isn’t facing an added sentence to his original sentence, but is instead serving the remainder of his original sentence out in the community. The parole-like model tended to support offender rehabilitation and to help an offender transition back into the community.

If the supervised release system isn’t transitioned into a more rehabilitative model, then courts should exercise more discretion in determining who will get sentenced to supervised release. Only the offenders who are a potential threat to the community should be sentenced to supervised release, not 95% of persons who go before the court. If judges exercised more discretion in these supervised release sentences, then the number of offenders returning back to prison will greatly decrease and fewer offenders will face years of supervised release upon their release from prison. The exercise of discretion would necessarily lead to fewer offenders facing the severe restraints and restrictions on their freedoms upon release from jail.

When taking the impacts of the supervised release system into consideration, it is really important for current defense attorneys to not simply advocate for low imprisonment terms for convicted defendants; but also to advocate for defendants to either not be sentenced to supervised release or to receive a low supervised release term. Otherwise, defendants will almost certainly be sentenced to supervised release following a conviction and will then face on average, three and a half years of supervised release. Because offenders on supervised release are sent back to jail so frequently, it is really important for criminal defense attorneys to advocate for lower supervised release sentences—as that appears to be the only hope for defendants until the supervised release system is reformed. 

By Makia Weaver
Staffer, Criminal Law Practitioner

Photo by Andrew Bardwell via Flickr.