Monday, June 21, 2010

What ever happened to mens rea?

There is an interesting new book that most criminal lawyers, and potential defendants, should read: Harvey Silverglate’s"Three Felonies a Day".

Silverglate is a Boston civil-liberties lawyer and his title refers to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

For example, a man named Bradford Councilman was charged in Massachusetts with violating Federal wiretap laws in 2001. This was because Mr. Councilman worked at a company that was both  an online book-listing service and Internet service provider for the book dealers.  The company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients as part of its ISP role.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Recently, a Philadelphia, Pennsylvania man, Bruce Shore was indicted in Kentucky under an obscure Federal statute (43 U.S.C. §223) alleging that he "did utilize a telecommunications device, that is a computer, whether or not communication ensued, without disclosing his identity and with the intent to annoy, abuse, threaten, and harass any person who received the communication."

It turns out that Mr. Shore was an unemployed fellow who e-mailed Senator Jim Bunning of Kentucky after Bunning’s one man obstreperous activities several months ago blocking unemployment extensions for every American.  Mr. Shore’s mistake was signing the e-mail “Brad Shore from Lousiville”.  Forget First Amendment.  Forget writing a Senator to complain of the Senator’s position on important issues.  He was indicted because he changed his name from Bruce to Brad and called his hometown Lousiville instead of Philly to get the Senator’s attention.  Instead, Shore got more attention than he wanted!

Mr. Silverglate is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

Friday, June 18, 2010

Another SCOTUS punt

Yesterday, The Supreme Court waded cautiously into an issue that surrounds workplaces and offices throughout the country: i.e., whether employers have the right to review workers’ computer, cellphone, and text messages on devices owned by the employers.  The decision represented a preliminary effort to define public employees’ Fourth Amendment rights in the digital age.  The decision was extremely narrow and according to Justice Kennedy, closely tied to the facts.

Kennedy refused to establish far reaching rules concerning privacy expectations of workers using company equipment.  The court admitted its unfamiliarity with many new technical issues and refused to do more than stick its toe into the high tech communication morass. Kennedy stated that “technology may be changing faster than the courts can accommodate”.

Justice Scalia was his usual cantankerous self,  finding fault with the decision calling it “exaggerated and opaque” alleging that the other justices disregarded their duty.

The majority chose to not delve too deeply into a world of technology that they admitted at oral argument was a bit foreign to them.

Monday, June 14, 2010

New Proposed Sentencing Guidelines

The New Federal Sentencing guidelines will give more latitude to Federal judges at sentencing.  Currently, It is not within the purview of the guidelines to consider to consider the offender’s personal history and personal characteristics.

The new rules will also allow for judges to send non-violent drug offenders to drug or alcohol abuse treatment centers instead of prison.

The Commission studying the guidelines received a lot of feedback from all sectors of the Federal criminal justice system highlighting “a great need for alternatives to incarceration” according to William K. Sessions, the Commission’s chairman.

The Commission now seems to be looking at the individual offender away from the assembly line approach

There are lots of practical and technical reasons why the proposed new federal guideline amendments released today by the US Sentencing Commission  (USSC) are quite important and potentially very consequential for the day-to-day work of litigants and judges in the federal sentencing system.

These amendments are really the first set of changes to the US Sentencing Guidelines that fully and formally reflect the import and impact of the Supreme Court's decision in Booker.  It is astounding that it has taken the USSC more than five years to fully deal with Booker as the law of the land, but it is also quite significant and telling that the Commission is now making sure that the guidelines expressly take account of post-Booker realities.

Of even greater importance, virtually all of the Commission-driven proposed amendments are intended to (and are likely to) reduce applicable sentencing ranges and the overall severity of the guidelines.  Through the first 20+ years of guideline sentencing, the vast majority of proposed amendments have called for increases in applicable sentencing ranges and the overall severity of the guidelines.  This set of amendments thus reflects a quite tangible (and perhaps enduring) change in focus and direction of the Commission's on-going guideline-revision work.

Another point also prompts an important practical and technical issue: will the US Sentencing Commission later this year vote to make any of its new guideline-reducing amendments retroactive for the benefit of already-sentenced defendants now in federal prison?

If a guideline amendment reduces sentences and the Commission votes to make that amendment retroactive, the guidelines have a policy statement (U.S.S.G. § 1B1.10) that discusses the scope, limitations, and authority for granting sentence reductions. That policy statement also includes a list of all the guideline amendments that have been made retroactive. A prisoner who wants a sentence reduction based on a retroactive guideline must file a motion under 18 U.S.C. §3582(c)(2). The motion is filed in the federal court where the defendant was sentenced. The court may or may not appoint a lawyer to help the defendant with the motion. The prosecution is given a chance to oppose the defendant’s request for a sentence reduction. Then, the court makes the final decision to grant or deny a sentence reduction. The court does not have to give the defendant a sentence reduction – rather, the court has to consider the guidelines’ purposes of sentencing and any relevant policy statements about the amendment and sentence reductions. For example, the policy statement at § 1B1.10 bans the courts from reducing a sentence unless the Commission has made the amendment that allows for that reduction retroactive. If the court denies the defendant’s motion for a sentence reduction, the defendant may appeal that decision. If the court grants the defendant’s motion, the defendant’s sentence will be adjusted accordingly.