Undocumented Immigrants and Loss of Parental Rights

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The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers.  One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft. While in jail, a couple petitioned to adopt her son (to which she did not give consent) and the court approved the petition several months later without her knowledge.

This news article highlights one of the troubling consequences of increased immigration law enforcement in the U.S. on immigrant families and the communities in which they reside.  One part of the opinion is worth quoting. In terminating the woman’s parental rights, the judge stated that, “[h]er lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child.”  

I was perturbed by this statement and chose to include it here because it points to an area that may be explored further: the intersections between family law, criminal law and immigration law.  In recent years, a number of legal scholars have focused on exploring the relationship between family law and criminal law.  Among them are Prawfsblawg’s Dan Markel and Ethan Lieb, who, along with Jennifer Collins, have authored a book and several articles addressing the role of family ties in the criminal justice system.  Jeannie Suk has examined the concept of the home and family privacy as it relates to domestic violence enforcement and the operation of the Fourth Amendment, while Melissa Murrayhas considered the way in which criminal law and family law work cooperatively to structure the normative contours of intimate life. 
September 24, 2014 |

Cognitive Bias and Innocence Commissions

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(Michael O’Hear) I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003. The Commission, which was jointly sponsored by the state Department of Justice, the state bar, and the law schools at Marquette and the University of Wisconsin, included prosecutors, police officers, criminal defense lawyers, law professors (I was one of four), and community and crime victim representatives. We had a staff, a budget, and quarterly day-long meetings at which we had fascinating discussions of important issues ranging from the quality of the state crime lab to the underfunding of court-appointed counsel to police interrogation tactics to the use of jailhouse snitches. The vision behind the Commission was that consensus reform proposals emerging from a diverse body of experts and leading practitioners might actually get the state legislature’s attention.

In the end, though, none of the hoped-for consensus reform proposals ever emerged.  The group was disbanded when it became clear that the prosecutors were unwilling either to agree to any of the reforms pushed by the defense lawyers or to put forward their own proposals for improving the criminal justice system (besides increasing prosecutor pay).

It was disappointing to see the effort fall apart, and I have been giving some thought as to why it failed. 

In this state of uncertainty, prosecutors and defense lawyers – again, I think, acting in good faith all around – filled in the crucial knowledge gap in predictably self-serving ways.  Beginning with these self-serving premises, each side perceived the other to be suffering from an unrecognized cognitive bias.  Further deliberations were futile when each side was convinced the other just did not get it.

That, anyway, is my take on the Wisconsin experience.  I know that many other law professors have served on similar innocence commissions in other states, and I would be interested in hearing about their experiences.

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September 23, 2014 |

Sentencing Judges, Explain Yourselves

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(Michael O’Hear) It’s always interesting to see a topic one is writing about show up in the advance sheets.  (I suppose “interesting” isn’t quite the right word for it when a new case requires a massive rewrite – as happened to me when the Supreme Court decided Blakely v. Washington – but fortunately that’s not where this post is headed.)  I’ve been on a procedural justice kick in my scholarship for the past couple years.  First, I took on procedural justice in plea bargaining (e.g., here and here).  Then, I got interested in how the social psychology model of procedural justice might play out in the sentencing context, particularly with respect to the explanation for the sentence provided by the sentencing judge.  The Seventh Circuit had a good decision in this regard a few years ago in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which indicated that judges must provide an express reason for rejecting nonfrivolous arguments made by defendants for a sentence below the recommended sentencing guidelines range.  As I discuss in a forthcoming Florida State Law Review article, however, post-Cunnighamcases, including the Supreme Court’s decision in Rita v. United States, 551 U.S. 338 (2007), have largely undermined the robust explanation requirement that was seemingly contemplated by Cunningham.

But a new Seventh Circuit decision from just last week, United States v. Harris, tells us that the Cunningham explanation requirement still has some life left.  

Here’s what happened.  David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

Choosing the right criminal defense attorney to represent you or your loved one is the most important decision you can make when charged with a crime

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September 19, 2014 |

The Power Of A Single Sentence: Traffic Stops

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(Fabio Arcila) I wonder how often the Supreme Court has nonchalantly wiped off the law books an entire jurisprudential debate with one blithe sentence. That is exactly what the Court did last term in Arizona v. Johnson, 129 S. Ct. 781 (2009). For very good reasons reflecting the Court’s own muddles, federal and state courts had for many years struggled to define the contours of the police’s search power during traffic stops, and unsurprisingly had come up with widely varying doctrinal formulations. In Johnson, a case that did not even directly raise the issue, the debate over those formulations largely vanished due to one sentence.

I became pretty familiar with the doctrinal morass involving traffic stops a few years ago when I got involved pro bono in helping to oppose a Fourth Amendment certiorari petition that Illinois had filed. The Supreme Court itself has caused the jurisprudential problem because its traffic stop cases are an analytical mess. The tension arises because the Court often wants to treat traffic stops a lot like consensual police encounters. That would allow police a large degree of flexibility. But traffic stops are not consensual encounters. Rather, they are involuntary, coerced encounters. Thus, when confronting traffic stops, the Court often has analogized to Terry stops.Terry “stop-and-frisks” allow police to compel brief, non-consenual, investigatory stops based upon reasonable suspicion. Because they involve involuntary stops, and based upon a lower threshold of suspicion that probable cause, which is the traditional Fourth Amendment standard, the scope of Terry stops are to be strictly limited so that these encounters remain brief, the public is not unduly burdened, and police cannot engage in fishing expeditions.

Illinois courts, like many state and federal courts, had struggled with how to reconcile this tension in the Court’s precedents. Like many such courts, those in Illinois chose to place greater primacy upon the Terry analogy. Consequently, Illinois courts had erected a rather detailed, demanding, but admittedly convoluted traffic stop jurisprudence that generally prohibited police from inquiring about, or seeking consent to search with regard to, matters or offenses unrelated to the reason for the traffic stop.

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If you receive a traffic ticket for violating one of these rules, it is advisable to consult an experienced attorney.


September 4, 2014 |

How to Find Your Detroit DUI Lawyer

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Being faced with a drunk driving charge is not only a very serious situation, but it can be quite scary. Those who end up with convictions stand to lose money, time, have their driver’s licensed revoked, and even face jail time. Insurance rates can sky rocket, and in many states, you must now lease a breathalyzer device for you vehicle…. that is if you’re afforded the opportunity to drive again. As such, it goes without saying that if you are charged with this offense, that you will want to find someone who is able to represent your best interests and fight to retain your rights. In this article, we will outline a few steps in helping you find your ideal Detroit DUI lawyer.

Step 1 – How much are you willing to pay an attorney for their services? Many quality DUI attorneys will cost at least $1,500.00 and up. In general, the higher the fee, the better the representation, though this is not always the case. Know your budget going into the process so you can better assess whether an attorney is even within your price range before making further considerations.

Step 2 – Talk with friends and family members who have benefited from the aid of a legal professional in the past. Word of mouth is often a wonderful way to find quality representation. Even if the lawyer you are referred to has no background in DUI cases, chances are that they can refer you to DUI lawyer who does.

Step 3 – Contact your local bar association to find attorneys in your area. You can even check on lawyer histories in order to view whether he or she has any past complaints.

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August 31, 2014 |

Time delayed sentencing gets off the ground!

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(Dan Markel) Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent  opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found. 

My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that  Bueno herself and others do not think she is able to enjoy a “windfall” based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release  could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that’s acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.

Our expert Detroit violent crime defense lawyer is at your disposal, so do not reluctant in taking leverage of his experience and creativity in order to win the case.

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August 30, 2014 |

Should murderers have the right to vote in prison?

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(Jonathan Simon) The fact that I’m even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that: 

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The Court declined to specify which prisoners had to be able to vote, noting that in this area, the “margin of appreciation is wide” within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote. 

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

 A criminal litigation attorney dedicates his or her professional life to representing those who have accused of crimes.

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August 25, 2014 |

The Federal Death Penalty in Non-Death States

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(Michael J.Z. Mannheimer) I want to thank Dan and the gang for inviting me to blog here this month.  I’m a bit embarrassed that this is my first post, given that we are already five days into the month, but I was away the first couple of days and have had intermittent and inexplicable internet outages since then (yay, Time Warner).  Anyway, I look forward to sharing my thoughts on scholarship, teaching, service, and whatever else crosses my mind.

For my first post, I wanted to share a few thoughts on a pet issue of mine that happens to be quite timely:  federal capital prosecutions brought for conduct occurring entirely within States that do not authorize the death penalty.  I say “timely” because Judge William K. Sessions III issued a decision yesterday in United States v. Michael Jacques (pronounced “Jakes”) denying, among other things, Jacques’s motion to strike the notice of intent to seek the death penalty.  Jacques is accused of luring his twelve-year old niece to his house, then kidnapping, raping, and killing her.  This took place entirely within Vermont, which has no death penalty, but the federal government is bringing the prosecution under the Federal Kidnapping Act.  Before 2006, this would not have been a federal offense.  The FKA was amended that year to cover not only kidnappings that cross State lines, but also those where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  That Jacques allegedly used text messages to lure the victim and altered her MySpace page to try to cover his tracks — and perhaps even that he used an automobile to transport the victim — brings it within the FKA.  It seems pretty clear that the only federal interest here, if it can be called that, is that the death penalty is available under federal law but not Vermont law.

Jacques raised the argument I made in my article, When the Federal Death Penalty is “Cruel and Unusual,” 74 U. Cin. L. Rev. 819 (2006) (oh, yes, the shameless self-promotion starts with the first post), that it constitutes cruel and unusual punishment in violation of the Eighth Amendment for the federal government to impose death for conduct occurring within a State that does not itself authorize capital punishment.  The argument is grounded in the origins of the Eighth Amendment, and the Bill of Rights generally, as a means by which the Anti-Federalists sought to preserve State sovereignty, especially over crime and punishment.  Because the Anti-Federalists conditioned their reluctant acquiescence to the ratification of the Constitution on the adoption of a Bill of Rights, I argue, their views, motivations, and general outlook must be consulted on the meaning of the Bill’s provisions.

It is crucial to get legal representation from an experienced criminal defense lawyer who will fight for you, educate you about the criminal defense process, and relieve your stress.

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August 24, 2014 |

Would you lie to prevent accurate enforcement of an unjustified law?

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Here’s something I’m thinking about vis-a-vis my article and I thought it might be fun to hear people’s thoughts.

If you knew and saw A did X in front of you, where X is a crime that you think is unjustifiably criminalized because at bottom you think X lacked any morally blameworthy feature (e.g., pot possession/handgun possession/eating on the subway, whatever), how many of you would lie if the cop asked you (Did you see A do X a moment ago) or if the court called you as a witness–in order to prevent accurate enforcement of the law against A?

I take it some of you might be willing to lie or not answer if A if A was family/friend–true? But perhaps that would be the case even if X was a justified crime in your mind? In any event, how many of you think you should lie, but doubt you would because you fear the perjury/false statements criminal liability to you if you did? What are some of the other options you think are desirable as a moral agent facing this quandary?

I’d be curious to see what your intuitions are when you tweak the scenario in several ways too:

a) imagine you think X should be permitted conduct but you think the law banning X is nonetheless morally legitimate even if you don’t think it’s  all-things-considered justified in your view to have a criminal law prohibiting X.  (This is kind of like saying you think the law passes muster under a deferential reasonableness review). Would you lie then?

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August 23, 2014 |

The Unusual Case of Marvin Gabrion

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(Michael J.Z. Mannheimer) Just over a decade ago, on March 16, 2002, Marvin Charles Gabrion made history. So far as I have been able to tell, Gabrion became the first person ever sentenced to death by the United States for a crime committed in a State that absolutely forbids capital punishment. In 1997, Gabrion committed murder in the Manistee National Forest in Michigan, over which the U.S. and the State of Michigan share concurrent criminal jurisdiction. He was prosecuted, convicted, and sentenced to death by the federal government.

Resolution of Gabrion’s direct appeal to the U.S. Court of Appeals for the Sixth Circuit was delayed by an important question of subject matter jurisdiction that was ultimately decided against him. It was not until August of last year that a panel of the Sixth Circuit decided his appeal, reversing the death sentence on two grounds. First, it held that the jury instructions at the sentencing phase were erroneous under the Apprendi line of cases because they failed to inform the jury that it must find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Second, the court held that the failure to instruct the jury that it could consider Michigan’s lack of a death penalty to be a mitigating factor violated the Federal Death Penalty Act and the Eighth Amendment. However, both of these holdings were 2-1, and the court subsequently granted review en banc.

The supplemental briefs for both Gabrion and the U.S. have now been filed, and oral argument will likely be held this summer. Interestingly, Gabrion has not really pressed the second issue on which the Sixth Circuit panel would have granted relief. Instead, he casts it in somewhat different terms: he argues that the trial court erred by prohibiting his attorneys from arguing at the sentencing phase that the jury should consider as a mitigating fact any lingering doubt it had over whether the crime actually occurred on federal forest land. Both of the issues addressed in the supplemental briefs are not only interesting but are cert. worthy if either one is resolved in favor of Gabrion.

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August 17, 2014 |
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