Daily Archives: August 16, 2012

No semantics when it comes to life

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Life, in America, means different things to different people. Life can start now or 9 months from now. In some states, like CT, life used to mean life, but now it means 60 years. Unless you’re convicted of a capital felony, in which case life means life.

And life is, according to the Supreme Court of the United States, no longer an option for juveniles convicted of non-homicides (and cannot be the only option for juveniles convicted of homicide). That’s all well and simple when the sentence is simply “life” in a legal sense, but what if the sentence is life in a real sense? Are those juveniles somehow different? What if the effect of the sentence is that a juvenile will spend the rest of his natural life behind bars without any meaningful review? What if the sentence is 110 years? Or 220? Isn’t that the same as “life”? Is that juvenile just as condemned to die in prison as the one sentenced to “life”?

According to the California Supreme Court, it is. In a(n?) unanimous decision issued today [PDF], the CA Supreme Court – correctly, in my opinion – vacates the 110-year sentence of a juvenile convicted of a non-homicide crime as a violation of the ban against cruel and unusual punishments.

Relying on the all-too important distinction drawn by SCOTUS in Graham that juveniles are different:

The high court stated that nonhomicide crimes differ from homicide crimes in a “moral sense” and that a juvenile nonhomicide offender has a “twice diminished moral culpability” as opposed to an adult convicted of murder — both because of his crime and because of his undeveloped moral sense.  (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].)  The court relied on studies showing that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.  [Citations.]  Juveniles are [also] more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character? than are the actions of adults.”  (Id. at p. ___ [130 S.Ct. at p. 2026],  quoting Roper v. Simmons (2005) 543 U.S. 551, 570.)  No legitimate penological interest, the court concluded, justifies a life without parole sentence for juvenile nonhomicide offenders.  (Id. at p. ___ [130 S.Ct. at p. 2030].)

the CA Supreme Court mandates only that juvenile offenders be given a meaningful opportunity to secure their release, not that their release must be guaranteed. This rationale isn’t limited to parole-ineligible defendants. Indeed, the defendant in today’s opinion is eligible for release on parole, except that the eligibility date won’t come until he’s served 100 years. In other words, never. That’s not a meaningful opportunity.

If one accepts, as the general scientific community does, that the development of the adolescent mind continues until one turns roughly 25, then it is clear to see why this decision and those like it are the right way to proceed. We all change and grow as we age, acquiring new experiences that shape our view of the world and show us the consequences of our actions. We are evolving, in a sense, into hopefully better, more responsible and socially conscious human beings. We aren’t the kids that we were at 16 and we won’t be who we are now when we turn 65. To punish someone of that tender an age and of lesser development for the rest of their lives is cruel. Will the defendant at 50 know the 16 year old who committed the crime? Will he like him? Who are we continuing to punish? I’m not saying that there needs to be a maximum penalty for juveniles that will ensure that they are always released from prison before their death, but rather that society takes another look at these half-cooked humans from time to time to see if they’ve ripened to the point that they can safely be let out again.

And shouldn’t the logic and rationale of Graham and Miller apply not only to mandatory maximums and astronomical sentences but also to mandatory minimums? By applying min-man sentences to juveniles who were 14 or 16 at the time of the commission of their crimes, aren’t we, in essence, doing that very thing which Graham warned against? That mandatory sentences are “particularly harsh for a juvenile offender who will on average serve more years and a greater percentage of his life in prison than an adult offender”? Because what is a mandatory minimum sentence if not a broad brush that refuses to take into account the particular nuances of an individual juvenile? And what of those juveniles that are treated as adults and thus exposed to harsher sentences? Aren’t we drawing arbitrary lines between those who will be treated as adults and those who won’t? Some states set the minimum age for transfer to adult court at 16, many others at 14 and yet others at 13. How is that not cruel?

Yes, these are children who have committed horrible crimes. Yes, these are children who’ve hurt many people. Yes, these are children who deserve some form of punishment and correction. But they’re still children. Isn’t it time we started thinking about the children?

 

Cellphones and the 4th Amendment: REP

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As we move faster and deeper into the technology age, the law struggles to keep up with ever changing methods of communication and constant availability of modern day consumers. One thing the law has had to deal with over the last 10 years is just how “private” are cellphones and the data that can get gotten from them?

It’s one thing to say that the data on a phone is private and expected to be so – although if you don’t password protect you’re phone you’re an idiot – but what about the signal of the cellphone itself that lets you get reception and connect to the internet?

Law enforcement and cops have been using cell tower data to pinpoint the location of a cell phone (and by extension its user) for a few years now, but this was mostly done post-hoc, to prove that a particular individual was at a particular location at the time of the crime. I’m also fairly certain that prosecutors and cops have been getting warrants to track cell phones in order to locate an individual they are chasing.

But can all of this be done without a warrant? Is there a reasonable expectation of privacy in the location signal of your phone? Is this something that society today is prepared to accept? That one doesn’t generally expect someone to know where you are based on the contact your cellphone has (covertly and unbeknownst to you) with a cell phone tower and the cell phone company?

That’s what the 6th Circuit just said in a decision [PDF] released two days ago: that there is no reasonable expectation of privacy in that information and thus, no need to get a warrant in order to conduct surveillance. Not only does the Court seem to place much faith in the “well, he was a criminal, right, so screw his rights” doctrine, but also makes several false analogies to other, more traditional, no expectation of privacy scenarios:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

As that Cato post appropriately points out, reasonable expectation of privacy doesn’t mean what the 6th Circuit claims it means:

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

The decision also makes no mention of US v. Jones, issued by SCOTUS earlier this year, albeit that is a slightly different scenario. More telling, however, is that there is no mention of Kyllo. Further, as Orin Kerr points out, the technical mumbo-jumbo utilized by the Court is ridiculously hazy.

Decisions like these, in light of the fact that it was recently revealed that cell phone companies dealt with 1.3 MILLION requests for cell tower information from LEOs last year and the FBI’s reluctance to turn over new memos giving guidance on how to deal with electronic surveillance in light of Jones, make it an increasingly dangerous time for our privacy in this digital age.

Unless, of course, you’re one of those people who constantly tell the world where they are on Foursquare, Twitter and Facebook. In that case, you get what you deserve.