Tuesday, October 21, 2014

Texas Protects Harassers’ Constitutional Rights in the Name of “Self-Expression”

A decision from the highest criminal court in Texas is the latest seeking to define the line between privacy and constitutionally protected speech.  Last month, the Texas Court of Criminal appeals struck down a portion of a state law that prevented people from taking “upskirt” pictures, holding that the law was unconstitutional on its face because it violated free-speech rights and penalized people’s thoughts at the expense of trying to protect people from harassment. The case involved a Texas statute, which made it a felony crime to photograph or record someone without the other person’s consent and “with the intent to arouse or gratify the sexual desire of any person.”

The Texas court found this statute to be unconstitutional under the Texas Constitution, and the U.S. Constitution’s First Amendment’s right to free speech and individual thought.  The law was meant in part to protect against predatory photographers who covertly take pictures under women’s skirts or down their blouses than then post them on the Internet.  Complaints of such incidents have become common across the nation as mobile phones equipped with cameras are on the rise.

The case that prompted reversal of the law involved Ronald Thompson, a man charged in 2011 with twenty-six counts of improper photography after taking pictures of young children in their swimsuits underwater without parental permission.  Thompson tried deleting the photographs before his camera was seized, but a police examination revealed seventy-three images of children “with most of the photographs targeting the children’s breast and buttocks areas.”  Thompson argued that the law was unconstitutional because it threatened to impose criminal charges against entertainment journalists, photographers, or “even the harmless eccentric” solely based on their thoughts.  He also argued that the statute “impermissibly penalized not just the expressive act of photography, but also the ‘right to receive the public expression of others.’”

Prosecutors argued that the constitutional right to public photography should not be a shield that lawbreakers can hide behind, and that the type of activity the law was intended to prevent placed it outside the type of “expressive activity” the First Amendment was designed to protect.  The prosecution’s argument was not enough for the court.  The court ultimately found that the state’s goal of protecting citizens from these “creepshots” to be an unacceptable extension of the government’s power, saying that:

“The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts … [constitutional] freedoms are most in danger when the government seeks to control or to justify its laws for that impermissible end.  The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

In an 8-1 ruling by the Texas Court of Criminal Appeals, the court ultimately ruled that photos, just like movies, books, and paintings, are “inherently expressive” and therefore, constitutionally protected.  The court found that “[t]he camera is essentially the photographer’s pen and paintbrush … A person’s purposeful creation of photographs and visual recordings themselves.”  Once the court decided that the photography was protected under the First Amendment, it addressed the statute’s “intent” element, which the court described as “paternalistic.”  The court said that “[p]rotecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind that the First Amendment was designed to guard against.’”

The court reaffirmed the U.S. Supreme Court decision in Ashcroft v. Free Speech Coalition, which held that conduct protected by the First Amendment does not lose its protection even when the photographer intends to arouse or gratify sexual desires, and that the First Amendment protects freedom of thought.”

It is widely agreed on that pictures, movies, and books are protected under the First Amendment, but the decision has nonetheless stunned many.  It has also left people begging the question, when does self-expression cross the line into infringing upon a person’s own personal privacy?  Essentially, the decision left the impression that people like Thompson have a right to take improper and unsolicited photographs, but the subject of the photograph does not have the right to exist in a public place without having his/her personal privacy infringed upon. 
The decision reaffirms the gray area in privacy law, where on one hand, there are “Peeping Tom” statutes designed to protect people from being photographed in bathrooms and dressing rooms, but on the other hand, the U.S. Supreme Court has held that people have no reasonable expectation of privacy in public places.  There is no word yet on what Texas plans to do with the law now; however, the hope is that the state attempts to clarify what criminal activity is without having to depend on what is going on in the defendant’s mind.

In March, the Massachusetts’ Supreme Judicial Court similarly ruled in favor of a lewd photographer, holding that state law does not protect a woman’s privacy from a man with a cellphone who took up-skirt photos on a Boston trolley.  However, Massachusetts lawmakers came back quickly with a revised law to protect privacy, which resulted in arrests.  The new law was created to be more specific, laying out in plain terms that “the secret photographing, videotaping, or electronically surveilling of another person’s sexual or other intimate parts … is a crime.”  This new provision now speaks specifically to images under or around a person’s clothing “when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public.”  The provision’s intent is to shift the expectation of privacy from a person’s surroundings to the person’s body.

Arizona took a similar approach as the state recently passed a law making it a felony, and potentially a sex offense, to share any image of nudity or sexuality before getting consent from every person pictured.  The distinguishing factor here though, is that it does not prevent the photo from being taken in the first place; the law applies only once the photo is transferred or shared with a third party without the subject’s consent.  However, even this law has prompted numerous lawsuits, including one from the American Civil Liberties Union.

The decisions establish that privacy only extends so far, and it does not extend to another person’s thoughts.  A legal scholar commented on the Texas ruling, saying that it “cannot be made a crime in the United States” to look at someone in public and think lewd thoughts about them; however this analysis misunderstands the difference between looking at someone in a public place, and photographing them without their consent.  While the Texas law’s purpose was to prevent the violation of a person’s personal privacy in a public place as well as sexual harassment, the State’s mistake was including the “intent” element.  States with similar laws making photography criminal contingent on the photographer’s intent may need to reevaluate and amend the law, similar to Massachusetts’ approach.  Otherwise, such lawsuits can be expected along with many angry victims who have been exploited.

Mahira N. Khan
Staffer, Criminal Law Practitioner


Photo by Agacha via Flickr

Tuesday, October 14, 2014

Life in a Box: The Plight of American Youth Growing Up in Solitary Confinement


Imagine being locked behind a steel door in a room so small you can barely stretch your arms out all the way.  All of your meals come in through a narrow slot in the door.  On the left side of your tiny cell is a rusted metal bed with a thin, rubber-foam mattress that is spotted with mold. Graffiti is scrawled all over the dirty walls.  To your right is a stainless steel toilet-sink combination.  The room smells of urine, sweat, and drool. In the cell next to you, you can hear someone screaming.  You are caged in this six-by-eight foot concrete box for twenty-three hours a day.  The days blend into each other.  You cry and scream and yell.

The only thing left to do is go crazy.

For the thousands of teenagers living in solitary confinement in juvenile facilities and adult jails and prisons across the United States, this is too often the sad reality of life.  Many young people are forced to live in isolation for days, weeks and at times even months.

Solitary confinement, which is also often referred to as “isolation” or “segregation,” is the practice of physically and socially isolating individuals for twenty-two to twenty-four hours per day and “severely limiting human contact and environmental stimulation of any kind” for one or more days.  While housed in solitary confinement, adolescents are often deprived of things such as health and educational services, adequate exercise and programming that is crucial to their growth and development.

Because states are not required to report data on the number of juveniles who are subjected to solitary confinement, it is impossible to estimate exactly how many individuals under the age of eighteen are housed under such conditions.  However, available data suggests that the practice is quite pervasive.  According to the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency, more than thirty-five percent of the 100,000 youth living in U.S. juvenile detention centers have been “locked up or confined to their rooms with no contact with other residents” and more than fifty-five percent of those youth (over 17,000 adolescents) have been held in isolation for more than twenty-four hours.  A 2010 Department of Justice survey of nearly 4,000 juvenile facilities found that twenty-one percent of the surveyed juvenile detention centers used varying degrees of solitary confinement on their residents.

Outside of the juvenile correctional system, more than 95,000 teenagers are held in adult jails and prisons across the United States.  The New York City Department of Corrections, one of the largest corrections systems in the country, reported that approximately 14.4 percent of their incarcerated youth between the ages of sixteen and eighteen are placed in solitary confinement. Similarly, Pennsylvania, one of the states with the largest populations of youth being held in adult prisons, reported that ten percent of the young people in their system were held in solitary confinement of some kind.

Solitary confinement can have serious psychological, emotional, and developmental effects on adolescents.  Living in isolation is stressful and uncomfortable and because adolescents have fewer psychological coping mechanisms than adults to deal with discomfort, stress and anxiety, the effects can be especially damaging.  Placing youth in isolation can exacerbate and even cause mental health problems in teenagers.  According to Dr. Bruce Perry, a child psychologist and senior fellow at the Child Trauma Academy in Houston, Texas, the experience of isolation in children can have profound effects on the brain:

Almost all of [the teenagers locked in solitary confinement] start to retreat into their inner world because there’s nowhere else to get stimulation. Some of these kids, without any external relational anchors, start to go crazy….The brain is so used to a variety of sensory input that in the absence of that, over time, they start to hallucinate and get paranoid. You can literally make people crazy by keeping them in solitary.

It is not uncommon for youth living in solitary confinement to experience depression, anxiety, auditory and visual hallucinations, shifting sleep patterns, nightmares, and uncontrollable feelings of anger and rage.  Many, particularly those with existing mental health issues, are completely unable to cope with the sense of isolation and abandonment that they feel and often turn to methods of self-harm such as cutting and at times even suicide.  According to the Department of Justice, fifty percent of suicides amongst detained teenagers occur when they are held in isolation and sixty percent of the children who commit suicide in detention have a history of being locked up in solitary confinement.  Ironically, one of the stated purposes of solitary confinement is to protect inmates from this exact type of behavior.

A high percentage of the youth entering the adult criminal justice system have existing mental illnesses.  For example, in 2012 the New York City Department of Corrections reported that forty-eight percent of the youth entering their system had a “diagnosed mental disability.”  As the number of operational public mental health facilities in the country continues to drop, jails and prisons are “becoming America’s de facto mental health institutions.”  However, correctional staff is often not properly trained to recognize or deal with mental health problems and therefore detained youth are often denied access to the types of services they need to manage their illnesses.

In the international community, the use of solitary confinement on young people is considered torture.  The practice is a violation of international law and falls under the definition of cruel, inhuman and degrading treatment.  Juan Mendez, the United Nation’s Special Rapporteur on Torture, is one of the many prominent figures in the international human rights community who have spoken out against the use of solitary confinement on young people:

The Convention on the Rights of the Child (“CRC”) specifically says that solitary confinement for young offenders is prohibited as a matter of international law. And it’s not capricious. It’s because the medical and the psychiatric literature demonstrates that young offenders suffer isolation in very different and much worse forms than adults… For juveniles, it should never be used. For people with mental disabilities, for women who are pregnant or feeding children. And even for people who are completely healthy, it shouldn’t be either prolonged or indefinite...” 

The CRC is the most widely ratified human rights treaty in history; however, the United States, Somalia, and South Sudan are the only three countries in the world yet to ratify it.

This September, after months of intense media and governmental scrutiny, Riker’s Island Correctional Facility, the second largest jail in the United States, announced that it will end its use of solitary confinement on juveniles.  In a detailed report about Rikers Island prepared for the New York City Board of Correction, Dr. James Gillian and Dr. Bandy Lee wrote that the use of prolonged solitary confinement “can only be seen by both inmates and staff as one of the most severe forms of punishment that can be inflicted on human beings short of killing them… [and] should not be imposed upon any inmates in the jail.”  Many are hopeful that as the government continues to investigate the use of solitary confinement for incarcerated juveniles in the United States corrections system, there will be a larger push to finally end this practice nationwide.

Ife Afolayan

Senior Editor, Criminal Law Practitioner

Friday, October 10, 2014

Officer Safety: A Detriment to Society?

In today’s society, there seems to be an emerging trend of distrust related to police officers, where the public often feels that the police overstep their bounds and exercise poor judgment. I think most people would agree that there is inherent danger in the practice of police work, and that as a matter of public policy we want our officers to be safe. However, the question that keeps presenting itself in the news is: are the current laws we have protecting officer safety actually causing harm to citizens?

Laws related to officer safety have been in place for decades. In the 1977 case Pennsylvania v. Mimms, the Supreme Court held that police have the automatic right under Terry to order a driver out of the car during the course of a legal stop. (In Maryland v. Wilson (1997), the Court extended Mimms to give police power to order passengers out of the car during traffic-related stops). The State's proffered justification for such order—the officer's safety—is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.” However, the Court was not unanimous in this decision. Justice Stevens vehemently dissented stating, “Some citizens will be subjected to this minor indignity while others -- perhaps those with more expensive cars, or different bumper stickers, or different-colored skin -- may escape it entirely.”

Justice Stevens’ concerns may have been realized in a recent incident in Hammond, Indiana, which has once again brought this issue to the forefront. An Indiana family is suing the Hammond Police Department for use of excessive force, false arrest and imprisonment, assault and battery, and intentional infliction of emotional distress. This came after an incident where Lisa Mahone, who was driving with her friend, Jamal Jones, and her two children ages 14 and 7, was pulled over for a seatbelt violation. Mahone and Jones were both cited for not wearing their seatbelts. They were asked for their driver’s licenses. Mahone gave the officer her license and had no further issues, but Jones had recently turned over his license to the police in an unrelated event. Because he did not have his license he tried to find other identification. The police officers, which supposedly were frightened when Jones reached in the backseat for his backpack that contained identification, asked him to step out of the car. He refused to do so saying that he was not the operator of the vehicle. The passengers of the car stated that they were afraid because of incidents they were aware of where officers mistreated people. The police called for backup and repeatedly asked Jones to get out of the car. He would not get out, and only cracked the window enough to hand the officers a paper containing his identification. After about thirteen minutes of this dispute, the officers used an ax to break the window and used a taser to get Jones out of the car. The glass reportedly flew and hit the children who were in the backseat. The 14 year-old boy filmed the event. You can hear the children and Mahone screaming and crying after Jones is removed from the car.

The Hammond Police Department and and the Mayor of Hammond have both issued statements supporting the officers at the scene. In his statement Mayor McDermott said, “Northwest Indiana recently had two Police Officers killed in the line of duty. That is something I never want to see happen in Hammond as long as I am the Mayor, and I will legally do all I can, as Mayor, to help protect officer safety.” The Hammond Police Department statement said, “The Hammond Police officers were at all times acting in the interest of officer safety and in accordance with Indiana law.” This statement is likely to be proved correct by the courts. In a recent panel analyzing the events in Hammond, CNN enforcement analyst Tom Fuentes said, "when drivers get pulled over, whether they agree with the reason for the stop or they don't, you must comply with lawful requests of the police." However, he also said, “Just because the police could do it, doesn't mean they should. My question here is the judgment that they used smashing that window with the kid in the car and four passengers in that car if there could have been another way to get around that.”

Until this issue is addressed by the legislature or a change in precedent law, we are likely to continue to see litigation concerning people fighting for rights which they do not have, but believe they should. As the law stands right now, people such as Jamal Jones likely have no recourse.


Kathryn Kimball

Blog Editor, Criminal Law Practitioner

Photo by Jay Kleeman via Flickr