In the wake of the 2008 financial crisis, the Justice Department levied record-breaking fines against many of the big banks involved in the meltdown, but very few individuals actually served time behind bars. That may finally be changing. According to a memo released on Wednesday, the Department of Justice (DOJ) is shifting its priorities to focus on prosecuting specific individuals who are responsible for financial wrongdoing.

“One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing,” wrote Deputy Attorny General Sally Q. Yates in a memo to all federal prosecutors. Yates outlined six “key steps” that should guide prosecutors in their handling of corporate misconduct cases. While many of these steps are not necessarily new, the memo seeks to standardize the DOJ’s priorities going forward.

So far, billions of dollars have been collected by the DOJ from fines and civil penalties from major banks for the roles that they played in the financial crisis. However, very few individuals have actually been prosecuted, and even fewer were sentenced to time in prison. This has lead to some harsh criticism of the DOJ and the way that it handles financial crimes.

In an article about the recent DOJ shift, the New York Times notes:

The Justice Department often targets companies themselves and turns its eyes toward individuals only after negotiating a corporate settlement. In many cases, that means the offending employees go unpunished.

While using massive fines allow for record breaking headlines, it also shifts the burden of punishment from the individuals who defrauded the public to a company’s shareholders. Some argue that shareholders should also share in the punishment, as they have a lot of control over a company’s management, but few also argue that the responsible individuals should escape punishment.

The policy shift outlined in Yates’ memo will both prioritize individual prosecution as well as help compel companies to cooperate with investigations, specifically in terms of providing information about responsible individuals. The first point in Yates’ memo instructs prosecutors not to give cooperation credit to a company unless it provides information about all of the people responsible. This cooperation credit can significantly reduce the punishment that companies and individuals receive.

Although the DOJ is not directly admitting that its previous policies were insufficient, Yates does emphasize that her memo marks a significant change. In a speech given at New York University Law School, Yates said:

Now, to the average guy on the street, this might not sound like a big deal.  But those of you active in the white-collar area will recognize it as a substantial shift from our prior practice. While we have long emphasized the importance of identifying culpable individuals, until now, companies could cooperate with the government by voluntarily disclosing improper corporate practices, but then stop short of identifying who engaged in the wrongdoing and what exactly they did.

While this memo is certainly notable, it’s actually bringing some white collar prosecution standards in line with established standards for all criminals. In her speech to NYU Law School, Yates also notes that this is how it works for criminals who give information about their co-conspirators to the authorities. She uses the example of a drug trafficker, who can receive a cooperation agreement for informing on other criminals, but will not get any relief if he or she does not give information about the cartel boss. While ending special treatment for corporations is certainly a popular idea, it’s also a little disheartening to hear that hasn’t already been the norm.

This does mark a sort of reprioritization at the DJO, but the question remains: will it matter? Prosecutors face a wide range of challenges when they try to prosecute corporate crime. Yates acknowledges these challenges in her memo, but it is worth noting that this isn’t the first time people have called on regulators to focus on individuals.

The issue isn’t that the penalties for financial crimes are too weak, rather it is simply very difficult to prosecute people in corporate cases. In order to convict someone, prosecutors must trace misconduct to individuals and show intent behind their actions. This can be particularly challenging for issues at the magnitude of the financial crisis, which can involve wrongdoing at several levels of a company, but be difficult to tie executives to. The DOJ can also have a very hard time getting information about what happened; because many banks operate internationally other countries’ laws can restrict the information that is available to U.S. prosecutors.

The recent shift will hopefully make companies more likely to cooperate and provide useful information about individuals, but the prosecutorial challenges remain. Even after the DOJ’s recent announcement, reform advocates remain skeptical. Dennis Kelleher, the head of financial reform watchdog Better Markets told the Huffington Post, “Based on their past dereliction of duty, no one should believe anything DOJ says until they see actual, concrete and repeated prosecution of supervisors and executives.”

Yates is right to say that prosecuting responsible individuals is the best way to discourage future misconduct, but whether that can and will happen remains to be seen. These changes are a step in the right direction and acknowledge the importance of public confidence in regulators, but don’t expect to see many executives in prison any time soon.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post The DOJ is Changing the Way it Prosecutes White Collar Crimes appeared first on Law Street.

Zach Anderson is the 19-year-old young man whose harsh sentence received national backlash after he had sex with a 14-year-old girl who told him she was 17. His sentence was just vacated by a judge, and a new sentence will be given. But while Anderson may now be getting a gentler sentence, his plight still says a lot about the state of the sex offender laws in our country.

Anderson, who is a native of Indiana, met the unnamed 14-year-old girl through a hookup app called “Hot or Not.” Much like other, perhaps more widely known hookup apps like “Tinder” it allows users to represent themselves in really however they see fit–there’s no age verification involved. So, Anderson, who was 19 at the time, met a girl who portrayed herself as 17. She lived just 20 miles away across state lines in Michigan. They met, and had “consensual” sex, despite the fact that she was under the age of consent.

It was at this point that Anderson was arrested and pleaded guilty to misdemeanor criminal sexual conduct. But the sentence he received was exceedingly harsh. Anderson was sentenced to 90 days in jail, as well as five years on probation. He also would be on the Indiana and Michigan sex offender registries for 25 years–a command that comes with a sentence of its own. According to CBS News,

Anderson also faces 61 conditions including restrictions that bar him from going online, dining at restaurants that serve alcohol and even living at home, because he has a 15-year-old brother.

As a result of his sentence, he also had to withdraw from Ivy University, where he was planning on majoring in computer science. The sex offender registry rules have prohibitions on using computers that would have made it impossible for him to complete his studies.

The harshness of these conditions resulted in a public outcry. Many onlookers viewed Anderson’s plight as unfortunate–after all, he wasn’t the one who lied about his age. In fact, both the girl he had sex with, as well as her mother, asked the judge for leniency.

But the judge in his case, Dennis Wiley, claimed that Anderson should have been able to tell that the girl was younger than she said she was. He wrote in his sentencing about how his decision was based in part on “the Court’s observation of the victim at sentencing, who appeared to be extremely young in development and maturity…It should have been apparent to a casual observer that she was clearly underage and vulnerable.” He also appeared to take issue with the fact that the two met online, and offered what can be viewed as an overall indictment of so-called “hookup culture.” Judge Wiley stated during the hearing: “That seems to be part of our culture now. Meet, have sex, hook up, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.” But regardless of Judge Wiley’s personal feelings, “our culture” wasn’t on trial–Anderson was, and he clearly paid a hefty price for what the judge believed.

However, that sentence was just vacated by Judge Wiley, although not because of its harshness. Instead, it was based on a procedural issue with the prosecutor, Assistant Prosecutor Gerald Vigansky, and the comments he made at Anderson’s sentencing about the sentences Wiley gave in similar cases. As a result, a new judge will re-sentence Anderson. While there’s no guarantee that the new sentence will be less harsh, Anderson’s family sees it a step in the right direction. After all, given Anderson’s lack of history as a sex offender, and the other particulars of the case, it’s hard to imagine that such a stringent sentence will be replicated.

Regardless of what happens in Anderson’s case, sex offender laws in the United States are beginning to fall under increasing scrutiny. The idea that a young man could be placed on the sex offender registry for 25 years, because of an act of consensual sex during which he was lied to, is hard to justify. But it’s certainly not the only case in which these laws have been applied unjustly. As former Judge William Buhl, who presided in a town near Anderson’s told CNN:

If we caught every teenager that violated our current law we’d lock up 30 or 40 percent of the high school. We’re kidding ourselves.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Young Man Sentenced to Years on the Sex Offender List May Get a Second Chance appeared first on Law Street.

When a football player lands a big tackle on an opposing player during a game, a congratulatory slap on the back is pretty typical. However, when that person being intentionally pummeled into the ground is a referee, the outcome could be criminal.

This is the current reality for two San Antonio high school football players, who could potentially face criminal charges after deliberately targeting a referee during a game Friday night.

A video of the assault captured the two defensive backs from John Jay High School inexcusably retaliate against a ref during the tail end of a 15-9 loss in Marble Falls, Texas. In the video the unidentified referee is seen being completely blindsided after the first player makes a beeline for him, slamming into his back and knocking him face forward into the turf. Then moments later the second player dives on top of him–helmet first.

Just before the referee was hit two Jay players, including the starting quarterback, had been ejected from the game on separate plays. According to the San Antonio Express News,

Marble Falls was looking to gain the yards required to extend its possession and effectively run out the clock and called for a handoff toward the left side of the line of scrimmage. The penalties stemming from the incident gave Marble Falls a first down.

Afterwards both players were ejected from the game, and have since been suspended from the team and the school. Austin Football Officials Association secretary Wayne Elliott told the Washington Post that the referee was “very upset” and “wanting to press charges.” A prosecutor has already been contacted by investigators and is reportedly open to filing charges against the boys. If that happens they will most likely be looking at charges of assault, with the severity depending on their age–individuals 17 and older are considered legally adults in Texas.

The University Interscholastic League, which oversees athletics in Texas public schools, tweeted out the following statement.

UIL statement concerning actions in San Antonio Jay football game: pic.twitter.com/QhPH8rskzc

— Texas UIL (@uiltexas) September 6, 2015

NFL Referees Association executive director Jim Quirk also released a quick statement addressing the hits saying,

These types of actions against any game official at any level are inexcusable. We fully support the suspensions of the players involved, along with a full and complete investigation by the Texas University Interscholastic League (UIL).

They’re right that it is inexcusable. Any big sports fan will tell you that rarely do they agree 100 percent of the time with every one of the officials’ calls. Regardless of whether or not this high school referee did make a bad call, physical violence shouldn’t have been the answer. Unfortunately this incident sheds yet another negative spotlight on the sport, which seems to have been plagued by its fair share of public scandals over the past year.

It’s unclear how the official is doing after the hits, but he easily could have been seriously injured. Just last night Virginia Tech Hokies starting quarterback Michael Brewer suffered a broken collarbone after receiving a massive hit from 290 pound Ohio State lineman, and unlike the blindsided referee, he was wearing pads. These boys better hope he wasn’t seriously injured or else  they can pretty much guarantee they’ll have their day in court.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Texas HS Football Players “Targeted” Ref, May Face Criminal Charges appeared first on Law Street.

It has been just over a year since Massachusetts teen Conrad Roy III was found dead inside his truck behind a Fairhaven K-Mart parking lot–the victim of suicide by carbon monoxide poisoning, and the case is just starting to ramp up against the girl police say pressured him to do it.

Michelle Carter, 18, was charged with involuntary manslaughter after a lengthy police investigation concluded that she had “strongly influenced” Roy’s decision to take his own life. Now text messages recently released by the Bristol County District Attorney’s Office are showing just how persistent Carter was.

Michelle Carter got Conrad Roy to kill himself in a Romeo a… http://t.co/Vj1Zow4ucf | https://t.co/apGmzF9vUw pic.twitter.com/YCzL90FsyN

— Nicole Williams (@NcoleWilliams) August 25, 2015

According to the indictment, sometime in 2012 Roy–who had a history of mental illness–met Carter and they formed an online romantic relationship “consisting mostly of online and cellphone communication.” The pair apparently had only met twice, but they sent each other thousands of messages over the past two years.

Then between July 6 and July 12, after Roy expressed plans to kill himself, Carter proceeded to council him to overcome his doubts.

Carter’s texts can be read in their entirety here, but below are some of the horrible things she said to Roy that later resulted in him commiting suicide.

[D]on’t be scared. You already made this decision and if you don’t do it tonight you’re gonna be thinking abut it all the time and stuff all the rest of your life and be miserable.

It’s okay to be scared and it’s normal. I mean, you’re about to die. I would be concerned if you weren’t scared, but I know how bad you want this and how bad you want to be happy. You have to face your fears for what you want.

Everyone will be sad for a while but they will get over it and move on.

You have to just do it. You have everything you need. There is no way you can fail. Tonight is the night. It’s now or never.

When Roy discussed siphoning carbon monoxide to his truck she responded,

But I bet you’re gonna be like ‘oh, it didn’t work because I didn’t tape the tube right or something like that. I bet you’re gonna say an excuse like that…you seem to always an have excuse.

After she helped devise the plan to run a combustion engine within his truck in order to poison himself with carbon monoxide, she told him that if carbon monoxide poisoning didn’t work he should “try the bag or hanging.”

Then on July 13, 2014, after taking his sisters out for ice cream earlier in the day, Roy finally followed through with his plan–but not without some coaching first. Police reported that when he felt the carbon monoxide beginning to work he felt frightened and exited the car to call Carter. The pair had a 47 minute long conversation during which Carter is said to have coaxed him to get back in the truck.

The details of Roy’s death are chilling, but is it actually a crime to encourage someone to commit suicide? Carter’s lawyers are attempting to argue no. They say that she was within her First Amendment rights when she urged Roy, and that she was “brainwahsed” to help him. We’ll have to wait and see how the judge responds, but prosecutors are already to countered saying her attempt to cover her tracks and request for Roy to delete their messages is proof of a crime.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Teen Encouraged her Friend’s Suicide: What Legal Price Will She Pay? appeared first on Law Street.

Does society perpetuate rape culture? Sadly, this idea has been proven over and over again. We keep asking the question and receiving the same answer: Yes. We saw it in the case of Bill Cosby. It took evidence of Bill Cosby blatantly admitting his crimes before a majority of the public believed he was guilty of raping and drugging women. For some people, it was just easier to believe the victims wanted their 15 minutes of fame than admit that the previously beloved actor committed such crimes. We saw it again in the protection of reality TV personality Josh Duggar it was revealed that he had a history of molesting girls including his sisters, and in the December retraction of Rolling Stone’s UVA campus gang rape story. The latest news brings us another story involving an alleged rape accusation: the Daily Beast reported on July 27 that Ivana Trump, ex-wife of  Donald Trump, accused him of rape during their marriage over 30 years ago. The controversy brings light to a highly controversial issue: marital rape. Even today there are still those who deny you can rape a spouse. So exactly what is the history and legality of marital rape in the United States?

Marital Rape in the News

According to the Daily Beast,  during the Trumps’ divorce proceedings Ivana claimed Donald raped her. She later clarified that she felt “violated” by the incident, rather than raped “in the criminal sense.” She further elaborated, “[O]n one occasion during 1989, Mr. Trump and I had marital relations in which he behaved very differently toward me than he had during our marriage. As a woman, I felt violated, as the love and tenderness, which he normally exhibited towards me, was absent. I referred to this as a ‘rape…’” Terms of the couple’s divorce agreement prohibit her from speaking on the marriage unless authorized by Donald himself. The Daily Beast cites a 1990 deposition from the Trumps’ divorce as well as the book “Lost Tycoon: The Many Lives of Donald J. Trump.”

After becoming aware of the report, Ivana labeled the story “totally without merit” in a statement to CNN. She also called her ex-husband and her “best friends” and remarked that Trump would make “an incredible president.” The authenticity of the story is in question. Ivana is denying it. The Daily Beast calls her recent statements ironic as the story is written “based on her own words.”

Regardless if Ivana’s words were misinterpreted or she is dishonestly recanting a story, the means by which Donald’s lawyer Michael Cohen responded to the allegations is appalling and shocking. Cohen threatened Daily Beast reporter Tim Mask and denied the existence of marital rape itself.

You write a story that has Mr. Trump’s name in it with the word ‘rape,’ and I’m going to mess your life up … for as long as you’re on this frickin’ planet … you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it…You’re talking about the front-runner for the GOP, presidential candidate, as well as a private individual who never raped anybody. And, of course, understand that by the very definition, you can’t rape your spouse.

Contrary to Trump’s lawyer’s statement, one can rape a spouse. All 50 states and the District of Columbia have laws barring nonconsensual sex with a spouse.

What is Marital Rape?

While rape is all non-consensual sexual intercourse, marital rape is specifically between spouses. It has been illegal in all 50 states and Washington D.C. since 1993. Before then, “marital exemption” allowed a person to a rape a spouse without fear of legal repercussions. Every state had a “marital exemption” law until 1975 when South Dakota became the first state to drop it. North Carolina was the last.  Its elimination is chiefly thanks to the women’s rights and equality movement. However, it is still significantly harder to prove marital rape than rape by any other.

Statistics

According to HealthResearchFunding.org, 30 percent of adult rape cases were committed by a husband, common-law partner, or boyfriend, while 29 percent of all sexual assaults were perpetrated by a husband or lover. When there is a precedent of domestic violence in a marriage, the chance for marital rape increases by 70 percent. Only around 3.2 percent of victimized women report the crime when it is committed by someone they know. An alarming 69 percent of women who’ve endured spousal rape will be raped more than once. Lastly, 18 percent of spousal victims claim their children saw the incident.

Cases of Opposition to Marital Rape

You would think, at least since 1993, that the door is closed on the validity of the existence of marital rape, but somehow, it still seems to be a gray area where it should be black and white: non-consensual sex is always wrong. Trump’s lawyer’s remarks are just the latest in a history of disturbing events.

Michigan 1987

Michigan resident Rosanna Hawkins was attacked and raped by her estranged husband, armed with a six-inch knife. She filed for divorce a month before the incident and had been staying with her sister. The attacker, Eugene, was sentenced by Oceana County Circuit Court to 27 to 92 years in prison. However, in a 3 to 0 vote, the Michigan Court of Appeals overturned the verdict in 1987.

Why? At the time, Michigan only recognized marital rape as a crime if the husband and wife were living apart and one member had filed for divorce. The court also required that a person live in the state for at least six months before filing for divorce. In Hawking’s case, she had only returned to Michigan a week before she filed, deeming it invalid.

Virginia 2002

In a 2002 legislative debate, Virginia delegate Dick Black stated,

I don’t know how on earth you could validly get a conviction in a husband-wife rape when they’re living together, sleeping in the same bed, she’s in a nightie and so forth. There’s no injury, there’s no separation, or anything.

If she says no, it doesn’t matter where she is sleeping or what she is wearing. This is the same man who called birth control “baby pesticides” in 2004.

Indiana 2014

Fast forward to the current day. David Wise repeatedly drugged and raped his wife, Mandy Boardman, for years during their marriage. Boardman’s suspicions were confirmed when she found video on Wise’s cellphone. She went to the police in May 2011. After the ensuing trial, a jury convicted Wise of six felony sexual assault charges. He had told the jury that, “She was snippy and it made her nicer when he drugged her.” The prosecutor asked for a 40-year prison sentence.

Wise will not spend one day in jail. Marion Superior County Judge Kurt Eisgruber sentenced Wise to 20 years, with eight years suspended and 12 years spent in home confinement. It only gets worse. Boardman told The Times “[The judge] told me I needed to forgive my attacker and I needed to let my attacker walk. It was a punch to the gut from the justice system …”

What are the Laws Regarding Marital Rape?

As previously stated, marital rape is illegal in all 50 states and the District of Columbia. Generally speaking, marital rape is penalized like a rape committed by any other person. Fines can range between several thousand dollars to over $50,000. Prison terms also range from several years to life in prison without parole. Often, sentences are based on the violence of the crime. Surprisingly enough, there are still certain states that have variances in the law regarding spousal rape compared to other types of rape. In some states, marital rape is charged under a different section of criminal code, given shorter reporting periods, held to stricter degrees of force/threat, and penalized differently.

Ohio and Oklahoma

Ohio state law has two distinct subsections for rape. Outside the confines of marriage, sex is non-consensual if the offender uses a “drug, intoxicant, or controlled substance” to alter the “mental or physical condition” of the victim; however, this circumstance does not apply to spouses living together. There must be “force or threat of force.” Essentially, it is legal for a husband to drug and take advantage of his wife. Oklahoma has similar legislation, requiring “force or violence” to be considered marital rape. Oklahoma also defines sexual intercourse as rape when the victim is unconscious, so long as it is not the spouse.

South Carolina and Idaho

South Carolina has even stricter laws. Sexual intercourse between spouses is non-consensual when “the threat of use of a weapon” and/or “physical violence of a high and aggravated nature” exists. In contrast, a weapon isn’t required in prosecuting “criminal sexual misconduct” outside the confines of marriage in South Carolina. Furthermore, the crime must be reported to law enforcement within 30 days of the event in order to investigate. In Idaho, “[n]o person shall be convicted of rape for any act or acts with that person’s spouse” except if the spouse struggled and was “overcome by force or violence,” threatened with violence, or drugged.

Virginia

In Virginia, court-approved marital and/or personal counseling can be substituted for fines and prison time in marital rape cases. The victim must agree and the option is available only once. This leaves the door open, however, for the offender to pressure the victim into approving the alternative. This option is not open to other cases of rape.

 Conclusion

Just last month, state legislators in Ohio embarked on a mission to remove the archaic word usage of their marital rape laws. Hopefully this is a sign of good things to come for the rest of the states that still believe spousal rape is different from any other rape. No is no. Regardless, there are still hurdles to be overcome and it’s wrong to be complacent with mediocre law writing.

Resources

Daily Beast: Marital Rape is Semi-Legal in Eight States

WomenLaw.org: Marital/Partner Rape

Daily Beast: Ex Wife: Donald Trump Made Me Feel ‘Violated’ During Sex

HealthResearchFunding.org: 21 Amazing Spousal Rape Statistics

Jezebel: A Brief Overview of Dudes Who Are Pretty Sure You Can’t Rape Your Wife

Jezebel: Wife Can’t Be Raped if She Wears a Nightie, Says Politician Named Dick

LA Times: No Prison Time For Indiana Man Convicted of Drugging, Raping Wife

The New York Times: Marital Rape

NOLO: Marital Rape Laws

Politico: Ivana Trump Denies Accusing Donald Trump of Rape

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post Marital Rape in the U.S.: What Are the Laws? appeared first on Law Street.

Bill Cosby’s fall from grace has taken a new incriminating turn. Recently released court documents reveal the comedic icon formally admitting to drugging women in the past. Unsealed testimony from a 2005 civil suit may finally end the plausible deniability routine that the now-disgraced comedian has used since accusations from over 30 women surfaced. As the evidence and claims against Bill Cosby mount, statute of limitation laws protect him from facing criminal charges in most cases. In light of this, it is important to ask why these statutes exist in the first place and whether they should apply to sexual assault cases.

Recently unsealed testimony from a previous civil lawsuit against Cosby, obtained by the Associated Press, shows the comedic icon admitting under oath to obtaining Quaaludes. He admits to giving the drugs to at least one woman and “other people” with the intent to have sex with them. The 2005 civil case was filed by Temple University employee Andrea Constand, who accused Cosby of sexually assaulting her in 2004. Cosby was not charged with a crime due to a lack of physical evidence, so Constad had to resort to suing him as a means of seeking justice.

According to the unsealed documents, Cosby was asked, “When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with?” to which Cosby answered “Yes.” He was then asked if he gave women the sedatives without their knowledge, but his lawyers objected before he could respond. Cosby’s lawyers later said that the women knew that he had given them Quaaludes.

Despite the growing number of accusations against him, Cosby has never actually been charged with a crime. This is primarily because most of the alleged crimes took place decades ago, leaving him legally free of charges due to state statute of limitation laws. A statute of limitation is a law that prohibits a prosecutor from charging someone with a crime after a specified period of time has passed. Proponents believe that these laws are to ensure that convictions are based only on valid evidence. Because evidence weakens over time, successfully convicting a defendant years after the fact is typically more difficult. These laws are meant to increase the validity of assault accusations in order to prevent fraudulent claims, and thus prevent an error that might convict an innocent person. Sexual assault cases typically begin with the victim describing what happened to authorities and creating material evidence vital to back up the victim’s accusations.

As of last November, 34 states and Washington, DC have statute of limitation laws for rape or sexual assault charges, ranging anywhere from three to 30 years. For example, charges must be filed within fifteen years of the crime in Georgia, five years in Connecticut, and just three years in Minnesota.

While making a case with deteriorated evidence is challenging, completely disallowing a victim’s ability to seek justice simply because evidence may have deteriorated does not seem fair. Improvements in technology are also slowing down that process, making evidence that was once unreliable much more useful. With more efficient DNA testing, authorities can now test decades old rape kits for DNA samples that previously could not be tested. A rape kit involves a medical inspection of a sexual assault victim and is a very useful means of preserving physical DNA evidence. Improved DNA science has started to give law enforcement agencies the ability to identify rapists dating back several decades.

One case that points to the unfairness of statute of limitation laws is the case of Charles Steele, a man who raped at least four Cleveland women in the mid-90s. The cases went unsolved for 20 years because police never tested the victims’ rape kits for DNA. Evidence collected from the bodies of each victim in 1993 and 1994 remained in storage until Cleveland police tested the kits 2011, leading them to Charles Steele who was already serving a lengthy prison sentence for a different rape. In 2014, Steele received an extended sentence for a minimum of 65 years in prison nearly two decades after the rape occurred. However, one of the indictments against Steele was thrown out due to Ohio’s 20-year statute of limitation law. The crime occurred on March 5th, 1993, but the indictment was issued March 6th, 2013–passing the 20-year limit by just one day. Cases like these are perfect examples of how a victim could be blatantly denied justice because the clock ran out.

As the Cosby controversy and other high profile cases gain public attention, many people are starting to question the validity of these laws. Wendy Davis, a state senator and former Democratic nominee for governor in Texas, proposed the elimination of the statute of limitations for rape and sexual battery cases last year. Davis’ efforts in Texas are one example of the growing opposition to these laws. Lise Lotte Lublin, one of Cosby’s accusers, recently testified at a Nevada Assembly hearing in support of a bill that would eliminate the statute of limitations for rape in the state. Nevada currently has a four-year statute of limitation for rape cases, which precludes Cosby from being charged for Lublin’s rape.

Because of statute of limitation laws, many of Cosby’s alleged victims may never get a chance at justice. Potentially allowing criminals to walk free simply because a certain time period passed, does not make the crime any less vile. Statute of limitation laws were initially created for justice, but now ironically serve as a barricade to it.

Kwame Apea

Kwame Apea is a member of the University of Maryland Class of 2016 and a Law Street Media Fellow for the Summer of 2015. Contact Kwame at staff@LawStreetMedia.com.

The post Bill Cosby Rape Allegations Continue: Should We Have Statutes of Limitations for Sexual Assault? appeared first on Law Street.

Police in West Virginia received a frantic call last week with a woman in the background saying, “He pulled a gun on me! He was going to kill me!” The woman, who wants to be known only as “Heather,” spoke to the police after a struggle with an attacker who tried to rape her and held a gun to her chest. Luckily Heather was able to fight back to the point where the gunman set down his weapon. She then grabbed ahold of it and fired the gun, killing him. Heather ran out of the house and found a neighbor who called 911 for her. The neighbor said she “had to defend herself,” and she had “cuts and stuff all over her.” Heather made it out of the fight with just a broken vertebra and a separated shoulder. Now, police believe she may have killed an unknown serial killer, and saved countless lives in the process.

Heather’s story was understandably traumatic. In her own words, she stated the gunman asked her: “live or die?” and started to choke her. “When he strangled me, I grabbed my rake, and when he laid the gun down to get the rake out of my hands, I shot him,” she said. “I grabbed the gun and shot behind me.” Police identified the man as 45-year-old Neal Falls. Inside Falls’ car detectives found a machete, axes, knives, a shovel, a sledgehammer, bleach, plastic trash bags, bulletproof vests, and four sets of handcuffs. Heather met Falls through an escort section of backpage.com and after authorities saw what they called Falls’ “kill kit” and Oregon license plate, this led them to wonder if he could be connected to other unsolved cases involving the murder of escorts. Police are now investigating if he was linked with the disappearance of nine women across Ohio, Illinois, and Nevada. In 2005 Falls lived in Las Vegas, the same year four women went missing and were later found dead. Outside of Las Vegas, evidence found with the dismembered bodies was similar to an item found in Fall’s car.

Man slain in West Virginia may have been a serial killer, police say: http://t.co/DrvtvJbnRj pic.twitter.com/L1T2jF2Nb1

— NBC10 Philadelphia (@NBCPhiladelphia) July 27, 2015

Police find ‘kill kit’ in trunk of Neal Falls’ car, suspected serial killer. More: http://t.co/NeqlPrjbH4 pic.twitter.com/fFGOGXtXZk

— CNN Tonight (@CNNTonight) July 28, 2015

All the missing women were escorts, most of whom advertised online. Police said Falls also carried a list with the age and phone numbers of about 10 women who were also escorts in West Virginia. The listed women are all alive and have not had any previous contact with Falls, according to Charleston Police Department Chief of Detectives Steve Cooper.

However, given the damning evidence, police do not believe this was Falls’ first violent crime. “It’s likely that Mr. Falls is a serial killer,” said Cooper. “I believe she saved lives by shooting Mr. Falls, based on what he did to her and based on the items found in his car.” Heather stated, “I knew he was there to kill me…I could tell he had already done something because he said he was going to prison for a long time.” Fall’s former landlord, who wants to be identified as “Pauline,” stated that he stayed at her house in 2010, but she evicted him after only one year because his strange behavior made her feel uncomfortable. Pauline told KVAL:

The first thing that he did that was a little odd was that he immediately changed the deadbolt to his own room so that only he had a key. He said he had guns and weapons and that he was a security guard….Little creepy, very tightly lipped and not a chummy guy, definitely not a chummy guy. Somebody who doesn’t like to be exposed.

Heather’s case has been closed and she is not being charged for killing Falls because it was considered an act of self-defense. Authorities are now focused on finding out if Falls was related to other crimes in the past. Police in West Virginia have asked the FBI for help, and are entering Falls’ name into a national DNA database to see if they can find any kind of connection. If Heather did in fact kill a serial killer, it may help solve a number of cold cases, and prevent Falls’ future crimes.

Taelor Bentley

Taelor is a member of the Hampton University Class of 2017 and was a Law Street Media Fellow for the Summer of 2015. Contact Taelor at staff@LawStreetMedia.com.

The post Did a West Virginia Woman Unknowingly Kill a Serial Killer? appeared first on Law Street.

Bobbi Kristina Brown, the daughter of late superstar Whitney Houston and singer Bobby Brown, died Sunday at the age of 22, a representative of the family said in a statement. The statement read:

Bobbi Kristina Brown passed away Sunday, July, 26 2015, surrounded by her family. She is finally at peace in the arms of God. We want to again thank everyone for their tremendous amount of love and support during these last few months.

She was treated in a hospital, and then an Atlanta-area hospice facility, nearly six months after she was found unresponsive and face down in the bathtub of her Rosewell, Georgia home. She was found on January 31, nearly three years to the day of her mother’s death.

Just days before she was found,Brown tweeted in excitement about new projects she was working on. So when she was found unresponsive just a few days later, it raised a lot of eyebrows for her friends, family, and fans.

https://twitter.com/REALbkBrown/status/561009982720983040

Now Brown’s death is being investigated as a homicide, with the 22-year-old’s boyfriend Nick Gordon as a suspect. Police officials are reportedly confident there was foul play involved.

Police had been called to Brown’s home on January 23 after someone reported a fight there, but no one answered the door, and officers found no evidence of an altercation. After first responders found injuries on Brown’s body when they discovered her, authorities launched a criminal investigation. A family friend said police questioned her live-in boyfriend, Nick Gordon, about her chest bruisings, and he told them it was a result of the CPR he gave her. There was also a history of violence reported between the couple.

Since Brown’s hospitalization in January, Gordon has allegedly gotten access to Brown’s account and stole more than $11,000. On July 12, Gordon reportedly was served with a $10 million lawsuit filed by Brown’s family on June 24. The lawsuit accuses Gordon of punching Brown in the face, and of controlling her finances after she was placed in a medically induced coma. Brown’s best friend, Alex Reid, opened up about Gordon’s alleged abuse on July 1. Reid said:

I don’t know when he started hitting her. But I know of at least four occasions when he struck her. She also told me about he had tried to choke her once. She was definitely scared. She had some friends, but not many. One time, I remember she called me for three hours. She was hyperventilating. I could barely understand what she was saying because she was so distraught. When she could finally get the words out, she told me he had been physically abusive. He had hit her in the face and thrown her against a wall.

After learning about the history, Brown’s family banned Gordon from visiting her while she was hospitalized and in hospice, even though he is distraught over the news of her death, according to one of Gordon’s close friends. The friend stated:

Even though Bobbi Kristina was in that condition, Nick always had hope that she would pull through […] All he wanted to do was see her, hold her hand, talk to her. He was not allowed to do that.

When Brown’s family learned that Gordon had abused her, they immediately cut off all ties. Gordon continuously claimed that he had nothing to do with her death, and is reportedly now on suicide watch because he is so broken up about her death. But police continue to investigate Brown’s homicide with Gordon as a primary suspect. An initial autopsy has not found an obvious cause of death, but a final ruling isn’t expected for several weeks. Whether or not Brown will actually be arrested or charged is most likely pending the results of that autopsy.

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post Bobbi Kristina Brown’s Death: Accident or Homicide? appeared first on Law Street.

Every year we hear stories about parents getting in trouble for leaving their children in places unsupervised, whether it’s at home, in a store, or in a car. In most incidents the parents were nowhere near where they had left their children, but for a recent story coming out of Houston, Texas, that was simply not the case.

Single Mom Laura Browder Arrested After Leaving Kids at Food Court While Interviewing for… http://t.co/ez0DkFUboy pic.twitter.com/NUNj4FYFm4

— Hinterland Gazette (@hinterlandg) July 19, 2015

Laura Browder, single mother of a 6-year-old girl and 2-year-old boy, was arrested and charged with “abandoning” her children who were no more than 30 yards away from her. She went to Houston’s Memorial City Mall for a job interview but because it was last minute, Browder did not have enough time to find a babysitter. She brought her kids in the mall with her and sat them down in the food court near a McDonalds then went to her interview. According to Browder the interview was not for a job in the mall, but the food court was a meeting ground for the company’s employer and herself. Shortly after being offered the job and returning to her children, she was handcuffed. Browder claims the children were always in her line of sight, but the police officer on the scene arrested her. She is unsure of how this arrest will affect the new position.

Browder stated,

This was very unfortunate this happened. I had a interview with a very great company with lots of career growth. I am a college student and mother of two. I would never put my name, background or children in harms way intentionally. I have a promising future ahead of me regardless of what the media tries to portray me as. A judge released my children to me knowing that I was a good mother who just made a not so smart decision. My children weren’t even 30 yards away from me, I fed them and sat there with them until it was time to meet with my interviewer. This too will pass and I am not concerned with outsiders have to say or what they think.

Child Protective Services officials say they are still in the early stages of the investigation, but have stated that they can offer services to help Browder find suitable childcare. It’s hard to understand the argument for charging her. Although she purposely left her kids there, she was unaware that it would be considered abandonment even with them in her sight, and she appeared to have been doing the best she could.

This is bullshit ! I guess it would’ve been better had she left them in the hot car like most scum bag parents smh http://t.co/QHZ4bA9ZQl

— Marnica (@TeammakeMoney) July 19, 2015

Many people have commented via Twitter or other forms of social media that she should not be punished because the children were in her eyesight and not in a car or somewhere that she could not easily get to them. Browder is trying to do the best that she can with her circumstances. She is a single mother and her kids need her in the picture. Accepting the childcare help that child protective services can offer could make things a lot easier for her. But most pressingly, it’s important to make sure laws are applied in common sense ways to best help mothers who are struggling to seek care for their children.

Taelor Bentley

Taelor is a member of the Hampton University Class of 2017 and was a Law Street Media Fellow for the Summer of 2015. Contact Taelor at staff@LawStreetMedia.com.

The post Texas Mother Charged with “Abandoning” Her Kids Who Were 30 Yards Away appeared first on Law Street.

James Holmes was found guilty of first degree murder last Thursday for the deaths of 12 people in the July 2012 Aurora, Colorado shooting. The insanity defense that his team tried proved unsuccessful, and Holmes will now be sentenced for his crimes.

Holmes faced two counts of first degree murder for each of the twelve victims killed during the shooting. The jury found him guilty on all 24 counts. The jury also found Holmes guilty of attempted murder on all of the 140 counts against him for the 70 people wounded in the shooting. Additionally, he was found guilty of one count of possession or control of an explosive or incendiary. He faced a total of 165 charges, a decision that took the jury 12.5 hours to reach. Now the same jurors are faced with the task of sentencing him to death. This process began yesterday. His attorneys are expected to raise his mental illness again during the penalty portion.

Holmes who had pleaded not guilty by reasons of insanity, but admitted to the killings, showed no reaction as the verdict was announced. His attorneys were pushing for him to be committed to a mental hospital for the rest of his life, while state prosecutors were seeking the death penalty.

Even though Holmes did not take the stand, the jury did hear from him via the 22 hours of recorded psychiatric interviews he had at both the Colorado Mental Health institute in Pueblo and at the jail where he is being held. Two defense psychiatrists testified that Holmes suffered a psychotic break the night of the murders and could not discern between right and wrong, but two-court appointed psychiatrists told the jury the defendant was mentally ill, but not insane. While those sound interchangeable, there’s actually important distinctions under the law.

In pleading not guilty by reason of insanity, James Holmes attempted to do something no accused mass shooter in America has done in more than 20 years–win a case with the insanity defense. Holmes faced long odds for a defense that studies show is raised in only about one percent of all felony cases nationally and successful in only about a quarter of those.

Mass shooters very rarely survive their crimes to face court charges. According to a database of American mass shootings in the last 30 years, suspects in only 19 of 61 mass shootings examined were arrested. Others either committed suicide or were killed during the shooting. Of those 19, only four, including Holmes, pleaded insanity.

The reason for the low success rate is the high bar that laws set for the insanity defense. In Colorado, it is not enough for defendants to be mentally ill. Instead, the law defines insanity as having judgment so impaired by mental illness that the defendant could not tell right from wrong. Given Holmes’ vivid plan, this did not appear to be the case.

The primary factor in determining insanity is the intensive mental health evaluations that a defendant pleading insanity is required to undergo. The judge overseeing the case this week ordered Holmes to be evaluated at the Colorado Mental Health Institute in Pueblo. After several hours of evaluations, it was determined that his insanity plea was not plausible.

Evidence shows that Holmes’ plan, to some degree, was thought out beforehand. Holmes bought a ticket 12 days before the July 19 showing, and walked into the theater screening of the “The Dark Knight Rises” like any other movie goer. He then walked out through a rear door, which he left propped open. Just after midnight, about 20 minutes after the movie began, he returned wearing a ballistic helmet, a gas mask, black gloves, and protective gear for his legs, throat and groin. A tear gas canister exploded in the theater, then gunfire erupted from an AR-15 rifle, a 12-gauge shotgun and at least one .40 caliber handgun. The shooting stopped with Holmes’ arrest outside the theater about seven minutes after the first 911 calls were made to police.

Given that evidence of his plan, it was not hard for members of the jury to believe that Holmes did not meet the bar for the insanity defense. “Look at the evidence, then hold this man accountable,” Arapahoe County District Attorney George Brauchler said. “Reject this claim that he didn’t know right from wrong when he murdered those people and tried to kill the others…that guy was sane beyond a reasonable doubt, and he needs to be held accountable for what he did.”

With the jury certain that Holmes does not fit the bill for the insanity defense, it is not clear where their decision will fall in terms of Holmes receiving the death penalty. As one of the largest mass murderers in American history awaits his fate, we will have to see what the jury ultimately decides.

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post Guilty Verdict for James Holmes: Does the Insanity Defense Ever Work? appeared first on Law Street.

Date rape, also known as “acquaintance rape” or “hidden rape,” has been increasingly recognized as a problem in our society. A shocking study shows that 82 percent of sexual assaults are perpetrated by someone who is not a stranger, and 47 percent of rapes are by a friend or acquaintance. The tragic story of a woman in Montgomery County, Maryland who was recently raped and killed serves as a horrifying reminder of these statistics.

At 11:40 PM on Thursday, June 18th, a security guard at the Montgomery County Circuit Courthouse  in Rockville, Maryland witnessed a struggle between 16-year-old Marquiz Turner and a 19-year-old girl outside. The guard notified the sheriff’s deputies who went outside the building and allegedly saw Turner forcing sexual intercourse on the young woman. He was immediately taken into custody. According to court documents, the victim had gone to see a movie in downtown Rockville with her ex-boyfriend, Turner, on Friday night. When the film ended Turner expressed that he wanted to have sex with her and she told him she was not interested. As the two of them walked to the car, Turner allegedly ripped off her clothing, pushed her against the courthouse’s concrete wall, and proceeded to rape her. The charging documents stated, “when the Deputies rounded the corner and identified themselves, Turner jumped back and pulled his pants up.”

Detectives interviewed Turner, who did admit to forcing the victim to have sex with him. He stated that “he was unwilling to accept ‘no’ for an answer,” and that he was going to have intercourse regardless of her objections. According to the charging documents, he felt that she “owed him” sex. At the scene, the victim told police she had broken up with Turner previously because he kept pressuring her to have sex with him.

Paramedics transported the victim to Shady Grove Medical Center for a forensic rape exam. While en route, she stopped breathing and lost a pulse. Doctors pronounced her dead at 1 AM, less than 90 minutes after the alleged rape occurred. The official autopsy and toxicology results have not yet been released, leaving questions about the reason for her mysterious death. According to reports, Turner showed little to no emotion after hearing of the victim’s death.

Court documents show that Turner is a sophomore at Winston Churchill High School in Potomac, Maryland where he had a 3.7 GPA. He lived with his mother in a Silver Spring high-rise apartment building. Neighbor Felicia Charles expressed, “I’m very shocked. I think that’s disturbing. I would have never thought he would do something like that. He never gave off that vibe.” Jean Arthur, a counselor for victims of sexual abuse, said,

Unfortunately that thinking is pervasive. It’s just really sad that a person thinks they can do that to another person. The fact that a person at 16-years-old even thinks to do that, I mean it just boggles my mind. I completely don’t understand it.

Turner is currently being charged with second-degree rape, a felony that carries a maximum sentence of 20 years in prison. Prosecutors say there may be additional charges depending on the deceased victim’s autopsy and toxicology reports.

Unfortunately sexual assault is one of the most underreported crimes, with an average of 39 percent being reported to the police each year. While this was a more high profile case, more attention does need to be brought to the pervasive issue of date rape.

Taelor Bentley

Taelor is a member of the Hampton University Class of 2017 and was a Law Street Media Fellow for the Summer of 2015. Contact Taelor at staff@LawStreetMedia.com.

The post Maryland Woman’s Death Sheds Light on the Problem of Date Rape appeared first on Law Street.

Incarcerating teens–a punishment that is meant to prevent crime–often tends to push youth away from schools and into even more crime. This revelation comes from a recently published study in the Quarterly Journal of Economics, which found a new connection between juvenile incarceration and troubles later in life. The study’s conclusions might not come as a surprise, but it helps explain an all-too-familiar pattern in which offenders return to prison shortly after their release. These findings also point to a larger question: is it time to abandon juvenile incarceration for other alternative methods such as counseling and restorative justice?

In the study, researchers examined the outcomes of more than 35,000 juvenile offenders in Chicago over a 10-year period. They found that incarceration lowered graduation rates by 13 percent and increased the chance of adult incarceration by 23 percent. The incarceration of these juveniles, especially those around the age of 16, significantly decreased the likelihood that they would return to school and graduate.

Researchers compared groups of juveniles who–for the same offense–received either an incarceration sentence or some alternative form of punishment. Doing so helped the researchers understand the direct effects of incarceration, particularly because the likelihood of such a punishment varies between judges. Joseph Doyle, who co-authored the study, further explained this point in a press release,

Some kids get a judge who will place them in juvenile detention, other ones get a judge who will be less likely to do so, and comparing the outcomes of the kids across the judges, we can actually say what the causal outcome is of placing the kids in juvenile detention.

Doyle believes that during periods of incarceration, teens meet others who are in trouble, which could lead them to form social groups that are not beneficial to already struggling juveniles. Doyle also says that, “there could be a stigma attached to it, maybe you think you’re particularly problematic, so that becomes a self-fulfilling prophecy.” This is known as labeling theory in the criminology world, where an offender’s actions are influenced by the way he is described and classified. Labeling theory argues that by incarcerating an individual, he begins to see himself as a criminal and will likely commit more crimes in the future.

Juvenile incarceration creates a vicious cycle where an incarcerated teen eventually becomes imprisoned as an adult, which can often lead to the loss of federal assistance benefits such as loans, food stamps, and welfare. As a result, they have a harder time finding a job, which further incentivizes crime as a source of income. With 75 percent of state prisoners and 69 percent of federal prisoners having not finished high school, education seems essential to preventing criminal offenses. Incarcerating teens takes them out of school and dramatically increases the likelihood that they will not return later on.

In light of this research, alternative measures to combating juvenile delinquency might be the wave of the future. Alternatives like restorative justice, which focuses on repairing harm caused by the offender instead of simply punishing him, have already proven to be effective in combating delinquency.

A restorative justice program often involves both the offender and the victim through counseling, victim-offender conferencing, restitution, and community service. In victim-offender conferencing, both parties are encouraged to discuss their issues in the hopes of finding a resolution and punishment. This is often a more attractive alternative to putting the punishment and resolution process in the hands of a judge, who might be inclined to incarcerate the offender. Restitution simply involves showing remorse and paying the victim back for what was taken.

For more information on restorative justice check out Law Street’s explainer.

In an effort to find an alternative to juvenile incarceration, Barron County, Wisconsin Circuit Court Judge Edward Brunner helped form what would become the Barron County Restorative Justice Program back in 2000. The program employed incarceration alternatives including victim-offender conferencing and teen court, both of which gave juvenile offenders the opportunity to make things right with their victims and the community.

By 2007, Barron County saw a dramatic decrease in juvenile offenses relative to the rest of the state. Barron County’s juvenile arrest rate was 34.2 percent lower in 2007 than it was in the year before the program’s inception, meanwhile the rest of the state only saw a 21.7 percent decrease in the same time span.

Other places, both inside and outside the United States, also experienced decreases in juvenile crime after implementing restorative justice programs. New Zealand saw drastic reductions in juvenile offenses and recidivism after instituting a similar system, and its satisfaction rates among the victims and offenders rose as high as 90 percent.

This recent study shows that juvenile incarceration may not be the best solution for deterring future crime. Kids who are introduced to the juvenile prison system tend to commit more crimes and carry their high recidivism rates into adulthood, and as a result, the vicious cycle of a “career criminal” begins to emerge. If the goal is to prevent crime and help juvenile offenders, perhaps it is now time for society to seek an alternative to incarceration.

Kwame Apea

Kwame Apea is a member of the University of Maryland Class of 2016 and a Law Street Media Fellow for the Summer of 2015. Contact Kwame at staff@LawStreetMedia.com.

The post Does Juvenile Incarceration Actually Work? appeared first on Law Street.

With mass incarceration under scrutiny, questions arise about alternatives to the punitive practice. One such set of alternatives–a process called restorative justice–is on the rise across the country in youth courts and schools.

Restorative justice has been practiced around the world for quite some time, but how do these dialogue-based alternatives to incarceration operate within the United States’ criminal justice system? Is restorative justice a radical means to advance social justice in an age of mass incarceration, or is it merely another way to reinforce the power structures of the current system? Read on to learn more.

Retributive Versus Restorative Justice

In order to appreciate the differences in approach that restorative justice poses, it is important to first understand that the United States’ criminal justice system operates under a retributive justice approach. Retributive justice is based on the idea of punishment, and the theory behind it is that the state is the ultimate victim of crimes and thus has the power to punish people it deems criminals. This domination-based form of justice is one basis for punishing “victimless crimes” such as drug offenses so harshly. Under retributive justice theories, the state is positioned as the victim.

In other words, the current criminal justice system’s emphasis on retributive justice relies on the logic that:

Retributivism answers the question ‘why punish’ by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law.  Retributivism as a theory of punishment requires retribution as a rationale for law.  A retributionist assumes that the law exists for a reason — a moral reason.  All crime, even victimless crime, involves a social harm — a moral harm.  In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Restorative justice, however, is grounded in an entirely different logic, philosophy, and practice. Restorative justice is defined by restorative agencies such as the Insight Prison Project as:

A philosophy and a social movement which provides an entirely different way of thinking about crime and victimization.  Our current retributive justice system focuses on punishment, regarding the state as the primary victim of criminal acts and casting victims and prisoners in passive roles. Restorative Justice, by contrast, focuses on healing and rehabilitation… It assumes that the persons most affected by crime should have the opportunity to become involved in resolving the conflict.  The goals of restoring losses, allowing prisoners to take responsibility for their actions, and helping victims move beyond their sense of vulnerability stand in sharp contrast to the conventional focus on past criminal behavior and increasing levels of punishment.

By taking the ideals of community and individual accountability and upholding the goal of mutual understanding and healing, restorative justice processes ensure that police, prosecutors, and judges are not the only ones with power over deciding someone’s fate after a crime has been committed. When prosecutorial and/or judicial discretion is utilized to make restorative processes available to people, the power of deciding how to move forward shifts to the person accused of committing a crime and the people most closely impacted by that crime.

This power shift can involve processes such as victim-offender mediation, conferencing, service provision, and “victim” assistance, as applicable. In the most well-known and widely used forms of restorative justice–mediated community conferences and circles–the offender(s), victims(s), and other closely impacted community members will come together in a mediated dialogue to address the context and harm done by the crime. During this process, the offender is expected to accept responsibility and agree to the group consensus of how to move forward, whether through community service, rehab, or other options. In these types of processes, the offender must agree to following through on the agreement; failing to do so will trigger a return to a traditional, retributive justice approach that will likely result in jail time.

Restorative Justice in Action

Currently in the U.S., restorative justice is most often used in the context of youth offenders and the juvenile justice system. Especially due to the extremely high rates of recidivism in the juvenile justice system, restorative justice, which often produces extremely low recidivism rates, is becoming increasingly popular as an alternative to incarceration in many juvenile courts across the country.

Many schools are using restorative processes as a way to keep their youth out of the school-to-prison pipeline. By engaging in restorative processes of mediation, schools are doing the following:

Forging closer, franker relationships among students, teachers and administrators. It encourages young people to come up with meaningful reparations for their wrongdoing while challenging them to develop empathy for one another through “talking circles” led by facilitators.

These talking circles, a trademark of restorative processes, often serve as alternatives to the suspensions and expulsions that fuel the school-to-prison pipeline. By resisting racialized zero-tolerance policies that do not give students a chance to repair any harm they might have done–and that might have been done to them–restorative practices in schools give students, teachers, and administrators the opportunity to identify deeper causes of problems in schools that allow more holistic approaches to students acting out.

Schools from California to Colorado to New York are implementing and expanding their restorative justice programs in order to avoid shipping their students directly into the juvenile justice system. In New York City, restorative programming in schools is being used with increasing frequency and impact:

Over the past few years, the Department of Education has been building its capacity to implement restorative justice programs. The department has provided training to teachers from 55 middle and high schools through the Morningside Center for Teaching Social Responsibility, which will be training 45 more schools this July and plans to add another 45 in the fall.

At Flushing International High School, where students hail from over 40 countries, social worker Tania Romero said that restorative practices have decreased incidences of violence between students of different nationalities and allowed for deeper conversations on issues like racism. “All schools should be entitled to this,” she said.

While experts acknowledge that restorative justice does not offer a quick fix either to juvenile justice or to schooling issues, many schools are becoming committed to advocating for the kinds of structural and cultural changes that can make restorative justice processes even more effective.

In other cases, however, restorative processes resemble traditional court processes more than they do school-based conferencing or mediation. In Brownsville, New York, for example, where youth of color are particularly targeted by the criminal justice system and jailed at extremely high rates, the city has established a youth court system in which youth offenders try and sentence each other to various sanctions, including community service, essay-writing, and tutoring. In this program, youth are trained for 30 hours and take a 16-page bar exam to prepare for the responsibility of trying and sentencing their peers. Though some might be skeptical of the ability of youth to effectively diminish the crime rates of their peers, the youth going through these restorative processes have a 93 percent compliance rate, which indicates an extremely low recidivism rate–much lower than that produced by the traditional juvenile justice system.

What Are We Trying to Restore?

Despite its success at lowering recidivism rates, restorative justice is often the recipient of criticism. Because restorative justice is a process that relies on the actions of those in the criminal justice system–judges and prosecutors must refer defendants or people convicted of crimes to restorative processes, and reserve the right to re-enact retributive processes if restorative methods are deemed ineffective–many people and organizations criticize restorative justice for being powerless to truly change the criminal justice system from within.

The co-opting of restorative processes by the state actually risks reinforcing the power structures that shape the harm done by crimes to begin with. For example, state-mandated restorative processes may force mediation event participants like police and youth of color together, ignoring the extreme power differences between these individuals and therefore ignoring structural power dynamics and risking perpetuating harm upon people who may have committed a particular crime, but who are also targeted by state violence.

As such, it is crucial to note that restorative practices may be practiced in disproportionate ways that ignore societal power structures. One study shows that schools with more Black students are less likely to use restorative processes because of racialized assumptions about the student population. Further, some question whether restorative practices are accessible to people living with certain dis/abilities.

What then does restorative justice seek to restore? If structural inequality was the baseline condition under which a crime was committed, is restorative justice satisfied with restoring that unjust baseline? Critics of restorative justice and advocates of the more structurally minded transformative justice argue that restorative justice, by nature of working within the criminal justice system, can never truly address these issues of systemic oppression.

So What’s the Verdict?

Restorative justice–especially in the context of the juvenile justice system–has tremendous potential to offer alternatives to incarceration for people who would otherwise be targeted for mass incarceration. Recidivism rates decline and community involvement increases, and these are all impacts that critics of mass incarceration certainly applaud. However, while restorative justice is certainly an important move toward reforming the criminal justice system as is, its lack of emphasis on structural and systemic oppression that is the basis for mass incarceration to begin with makes it an inadequate means of truly transforming the criminal justice system.

Resources

Primary

Oakland Unified School District: Welcome to Restorative Justice

Additional

Conflict Solutions Center: Retributive vs. Restorative Justice

Conflict Solutions Center: What is Mediation?

Partnership for Safety and Justice: Restorative and Transformative Justice: A Comparison

Insight Prison Project: A Restorative Justice Agency

Restorative Justice Online: What is Restorative Justice?

The New York Times: Opening Up, Students Transform a Vicious Cycle

Chalkbeat New York: City Preparing to Expand Restorative Justice Programs

National Public Radio: An Alternative to Suspension and Explusion: ‘Circle Up!’

New York Daily News: Teens are Judge and Jury in Brownsville Youth Court, Delivering “Restorative Justice”

PBS Newshour: To Curb Conflict, A Colorado High School Replaces Punishment with Conversation

Eastern Mennonite University Center for Justice and Peacebuilding: How Effective is Restorative Justice?

Restorative Justice Online: Restorative Justice in Schools: The Influence of Race on Restorative Discipline

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post How Can Restorative Justice Change the Criminal System? appeared first on Law Street.

Matthew Durham’s trial just began last week; he has been accused of sexual misconduct with children while volunteering at an orphanage in Kenya. The 20-year-old Oklahoma native has pleaded not guilty to 17 charges, including aggravated sexual abuse and engaging in illicit sexual conduct in foreign places. He faces life in prison if convicted. But these disturbing allegations against Durham raise many questions about the ethics of American volunteerism.

Durham has been accused of engaging in sexual acts with children between April and June of 2014 while working as a volunteer at the Upendo Children’s Home in Nairobi, Kenya, which specializes in assisting neglected children. Durham began volunteering for the orphanage in 2012. According to court records, officials claim Durham raped boys and girls between the ages of six and nine.

The jury was selected last Tuesday, and opening statements began on Wednesday. The prosecutor, Robert D. Gifford II, began his attack in a particularly disturbing manner, reading Durham’s hand-written confessions which included, “I would take her to the bathroom at night and would hold her down and rape her.” Quoting another that pertained to a boy at the Upendo Children’s Home in the Kenyan capital of Nairobi, Gifford read: “at night I took him to the bathroom and had him perform oral sex on me.”

A court affidavit lists samples of Durham’s hand written and signed confessions of the alleged acts. They go into some detail of what sexual acts occurred. But when faced with these confessions, Durham now claims that he only confessed to the crimes because he was under duress. 

In fact, defense attorney Stephen Jones is arguing that the offenses never happened. During his opening statement he stated, “there is no demon, there are no multiple personalities, there are no crimes. That is the defense, it didn’t happen.” Jones claims that Durham was was coerced into confessing by orphanage officials who kept Durham in isolation and confiscated his passport.

“He’s in fear for his life,” Jones said. He described Durham as “an emotionally vulnerable teenager” who was struggling with his “sexual identity and development” as a devout Christian. Jones claims that when the orphanage learned of the allegations, they didn’t initially notify police, medical officials, or the U.S. Embassy. Others who lived in the Upendo home claimed to have never witnessed any wrongdoing.

But the manager and children’s care taker of the orphanage, Josphine Wambugu, made a number of allegations including that she witnessed Durham sleeping in one of the girls’ dormitory on June 12, 2014. Wambugu also claims to have questioned some of the girls about whether misconduct occurred, and several claimed to have had “bad manners” with Durham, a Kenyan phrase for sexual relations. Wambugu testified that when she confronted Durham, “He say: ‘Yes, I did it! Yes, I did it!'” She also claims that Durham told a group of Upendo officials that he had struggled with child pornography and homosexuality.

Whether or not Jones’ strategy of denying the incidents ever occurred will be successful will be up to the jury. But either way, this case creates some questions about the practice of sending young American students to volunteer abroad. It’s an incredibly common practice–there are so many alternative spring breaks, international volunteer abroad programs, and international service learning projects that provide options for students to volunteer. Both the programs that send students abroad and the organizations that accept them need to implement measures to make sure that the volunteers are properly supervised and vetted. Hopefully answers to some of those questions will arise out of this heartbreaking and disturbing trial. 

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post The Matthew Durham Trial: American Volunteerism at its Worst appeared first on Law Street.

It’s official–last month marked the third highest number of homicides in Baltimore history. The city saw 43 homicides in the month of May while arrest rates sharply declined. Since Freddie Gray’s controversial death in April, the relationship between the police and the public has taken a turn for the worse. Unrelenting media coverage and public outcry over police-related violence have made 2015 the year of police scrutiny, or as some may say, accountability. Recent cases of police-related violence have led to greater distrust in the police in many areas across the country.

The growing sense of disconnect between local communities and the police has led many to question whether law enforcement is the problem, not the solution. Some believe they are better off without the constant presence of the police. This belief is especially common in the city of Baltimore, where riots erupted after Freddie Gray’s death.

The protests sent a message to Baltimore police officers indicating that they were undesired in many communities. The riots also led to a rapid decline in proactive law enforcement techniques, an effort to appease many Baltimore residents. But in light of recent murder statistics, are people better off with less policing?

The month of May saw a drastic decline in police activity, with arrests going down approximately 56 percent compared the same period last year. In May 2014, police arrested 2,396 people in the first 19 days of the month, with an average of 126 arrests per day. Last month, however, there were considerably fewer arrests, as police arrested 1,045 people, an average of 55 arrests per day.

Anthony Batts, the Commissioner of the Baltimore City Police Department, attributes the dramatic decrease in proactive policing in Baltimore to the growing fear of prosecution among police officers. At a recent city council meeting, Batts said “There are people, and they’ve said this to me, ‘If I get out of my car and make a stop for a reasonable suspicion that leads to probable cause but I make a mistake on it, will I be arrested?’” This growing fear of legal action against officers appears to explain the sharp decline in arrests, which comes just one month after six police officers were indicted for their involvement in Freddie Gray’s death.

While the rate of arrests in Baltimore plummeted last month, the number of homicides did not. Instead, the city experienced its single bloodiest month in more than 40 years with a total of 43 homicides. The month of May saw more than 40 percent more murders relative to the previous year, and the rate nearly doubled the 22 homicides of the month prior. A total of nine murders occurred over a violent Memorial Day weekend, which also had nearly 30 shootings.

Last month’s raw homicide figures were the worst of any month in 40 years, and the third worst in Baltimore’s history. This is particularly shocking when looking back at the well-documented history of violence that made Baltimore one of the most violent cities in America for some time. August 1990 held the fourth bloodiest month in Baltimore history with 42 homicides, December 1971 takes second place with 44, and August 1972 tops the list with 45.

In terms of raw numbers, May saw fewer murders than December 1971 and August 1990, but when you adjust for changes in population the rate was actually much higher than any previous month. The murder rate last month was 6.9 murders per 100,000 residents, a stunning 38 percent higher than the rate in August 1972. This is because Baltimore housed roughly 280,000 more residents in 1972 than in 2015 according to Census data.

The chart below shows the adjusted murder rate for the four deadliest months in the Baltimore’s history as well as their total homicide counts.

Peter Moskos, a former Baltimore police officer and current professor at the John Jay College of Criminal Justice put these numbers in perspective in a recent blog post:

Even if no other people had been murdered in Baltimore before May, and even if no more people were killed from today until 2016, Baltimore would still have an above average annual homicide rate just based on the May killings.

In the first full month since the Freddie Gray protests two major changes have occurred in the city. Arrest rates have dropped by more than half, while homicides have risen by 40 percent. Antoinette Perrine, a Baltimore resident whose brother was recently gunned down near her home in West Baltimore told CBS Baltimore, “It’s so bad, people are afraid to let their kids outside… police used to sit on every corner, on the top of the block. These days? They’re nowhere.” It may be too early to tell, but a reduction in police activity might not be what is best for the city of Baltimore.

Kwame Apea

Kwame Apea is a member of the University of Maryland Class of 2016 and a Law Street Media Fellow for the Summer of 2015. Contact Kwame at staff@LawStreetMedia.com.

The post Baltimore After Freddie Gray: One of the Bloodiest Months in History appeared first on Law Street.

I’ve lived in Washington, DC for almost five years, and I’ve gotten used to pretty much any kind of disruption to my day because of security concerns. Whether it’s having to walk all the way around the White House complex due to it being shut down for security reasons, or not being able to cross the street because President Obama’s motorcade is coming through, minor interruptions to my day have become the norm. But last month, a man took even the most jaded DC residents, and the country, by surprise when he landed a gyrocopter in front of the U.S. Capitol Building. That man, Doug Hughes, was just indicted on six counts as a result of his misadventures, and could face a sentence of more than nine years in prison if found guilty.

Hughes is 61 and works as a mailman in Ruskin, Florida. He drove the gyrocopter up to Gettysburg, Pennsylvania, then flew it to DC and landed it on the Capitol lawn. Hughes was completely aware that what he was doing was against the law; in fact, breaking the law was sort of the point, as it would allow him to attract attention and publicity for his cause. He was trying to deliver 535 letters (one for each member of Congress) to the Capitol building, protesting the power that big money plays in Washington politics. Hughes’ contraption looked like this:

#Gyrocopter pilot due in court today pic.twitter.com/aZOn3exMrb

— 10 News (@WTSP10News) May 21, 2015

The charges against Hughes include two felonies and four misdemeanors. One issue is that he didn’t have any sort of license to operate his “aircraft”–the felony charges are to that effect. The misdemeanor charges include three counts of violating national defense airspace, and for mislabeling his gyrocopter as a mail-delivery vehicle. Regardless of the jail time that Hughes is probably going to serve, he’s received quite a bit of attention for his message as a result of the stunt. When he came back to DC for his hearing, he was met by plenty of supporters. He appeared in the E. Barrett Prettyman Courthouse just a few blocks away from where he landed his gyrocopter this Spring, and pleaded not guilty to the charges. He doesn’t contest that he flew the gyrocopter onto the Capitol lawn, just that he caused no damage when he did so.

#Gyrocopter pilot: “I’ll never do anything like this again, but I would do it exactly the way that I did.”@wusa9 pic.twitter.com/0RPHwliqaZ

— Andrea McCarren (@AndreaMcCarren) May 21, 2015

He also pledged to continue his fight against the influence of money in politics, and to continue to educate voters. Hughes stated:

Over time, the Congress, our Congress, has rewritten the rules to define an open marriage: They’re in bed with lobbyists, special interests, Wall Street and big banks. We are not asking, we are demanding that our government honor the vows of fidelity implicit in the Constitution…As long as I am free, I am going to keep introducing voters to solutions to the problems of corruption that the vast majority of voters recognize and oppose.

While Hughes certainly seems passionate about his cause, and did receive attention for the gyrocopter stunt, violating multiple laws really isn’t a great way to make a compelling argument for a cause, no matter how worthy the it is. Unfortunately for Hughes his actions, and the legal issues he’s going to have moving forward, probably won’t do much to advance his cause in the end.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Man Who Landed Gyrocopter Near Capitol Building Indicted appeared first on Law Street.

When picking a destination to travel to, most tourists like to factor weather, culture, and affordability into their trip planning, However on the off chance you’re an expecting mother there may be an even bigger deciding factor when choosing where to travel overseas–dual citizenship. Maternity tourism is hardly a new concept, but the recent arrest of a California lawyer by federal agents in connection with a “maternity hotels” investigation has this shady method of gaining citizenship garnering new found attention.

Federal ‘maternity tourism’ case grows with arrest of Irvine, CA attorney http://t.co/JhgR1zY2Uq @eopiniontv pic.twitter.com/qxhBmy8DJG

— Jaoana Dean (@thejaoana) May 19, 2015

According to the LA Times, federal agents arrested 38-year-old immigration attorney Ken Zhiyi Liang Friday and charged him with attempted witness tampering after he allegedly attempted to help a Chinese woman flee the U.S. after she was designated a material witness in an investigation into the illegal immigration of pregnant women.

Maternity tourism involves pregnant women obtaining tourist visas to another country in order for their child to be born a citizen there. In the United States, the Fourteenth Amendment grants unconditional citizenship to any person born on U.S. soil, making it a popular destination for this type of travel. Canada and Hong Kong are also popular destinations because of the former’s healthcare system and the latter’s “right of abode” awarded to its citizens. China’s one-child policy is also another reason for some of its pregnant nationals to seek maternity tourism as a method to circumvent the restrictive rule.

According to the LA Times, investigators in Southern California had been raiding properties suspected to be associated with alleged maternity tourism operators assisting pregnant Chinese women. After one of these raids, authorities named several people as material witnesses in the case, which forbade them from leaving the country. That’s where Liang comes in. Four of these witness hired him to represent them, but authorities believe he was also hired to help them flee the country. One married couple he represented successfully escaped back to China, but another witness was caught at LAX attempting to flee days later, which set off alarm bells for investigators.

The woman who was caught claims she had paid Liang $6,000 for the job and even had proof of their dealings, which she gave to authorities. The LA Times reported that officials in court filings claimed,

She made a video and audio recordings of several telephone and in-person conversations with Liange, in which he pressed her for payment and stressed the need to keep his involvement a secret.

Among other promises, Liang told the woman that for an additional charge, he could arrange with associates to get her aboard a flight to China without any immigration paperwork.

According to Reuters, he faces a maximum sentence of 20 years in federal prison if convicted at trial. It’s important that the safety of these expecting women is ensured, however investigators’ main goal is to to thwart these kinds of schemes which take advantage of the United States’ immigration policies.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post LA Lawyer Arrested Over This Popular Immigration Scheme appeared first on Law Street.

Across the United States, it is estimated that more than 61,000 youth are incarcerated each night, and more than 65 percent of these young people are youth of color. The overwhelming majority, 75 percent, are incarcerated for non-violent offenses.

The U.S. incarcerates youth at vastly higher rates than any other country in a world. Given that these incarcerated youth die from suicide at a rate of two to three times higher than the non-incarcerated youth population, there is no shortage of controversies surrounding the jailing of youth.

Read on to learn about the different controversies surrounding the incarceration of juveniles in the American justice system.

Death in Prison Without a Jury: An Overview of Youth Incarceration

Though all 50 states and the District of Columbia have defined legal differences between adults and youth who are accused of committing crimes, different states have different standards and definitions for what age someone has to be in order to be prosecuted as a juvenile. Additionally, there are many provisions that allow for certain juveniles to be prosecuted as adults, even if they are technically considered to be juveniles.

For some youth, this can be seen as an initial advantage: juveniles accused of crimes are not entitled to a trial by jury in light of a 1971 Supreme Court decision. Instead, youth are sentenced at the discretion of judges. But this exposes youth to tremendous vulnerability at the hands of judges who are accused of making decisions on the basis of race, even if it’s unconsciously. As Judge LaDoris Cordell argues, regarding the grossly disproportionate number of youth of color in the juvenile justice system:

What is hard is that if you go up to your average juvenile court judge, and that judge is the one who sends these kids off–we’re the ones ultimately responsible for these statistics–that judge will look you dead in the eye and say, “I’m not unfair, I’m not racist, I’m not prejudiced. I do the best I can.” And that judge is telling you the truth. . . . But what is at play here in most cases? I’m not saying there aren’t those judges who are so prejudiced and so racist; there are those. But I think, in the main, most are not. But I think what happens is that stereotypes are so embedded in the psyche of human beings, that those stereotypes come to play. So that when a young black kid comes into court before a white male judge, who perhaps doesn’t have any experience dealing with young black males… a mindset comes up in that judge’s head… Assumptions get made. . . . I think, in the main, that’s what happens, and I think that’s what accounts for those statistics. . . .

However, the risks of being tried in adult courts are also astronomical: approximately 2,500 youth are currently enduring life in prison without parole for crimes committed when they were children. In addition, youth are likely to experience extreme abuse in adult prisons. According to the Equal Justice Initiative, “Children are five times more likely to be sexually assaulted in adult prisons than in juvenile facilities and face increased risk of suicide.”

Additionally, according to Human Rights Watch, while one out of every eight black youths who are convicted of killing someone are sentenced to life in prison, only one out of every 13 white youths convicted of killing someone are sentenced to life in prison.

In New York and North Carolina, this fate is particularly dangerous for youth: these are the only two states that try 16 and 17-year-old young people as adults. In both of these states, the age of adult criminal responsibility is 16, so judges must automatically treat these youth as adults. The prosecution of 16 year olds as adults–and their subsequent processing through the adult, rather than juvenile, system of incarceration–occurs in New York automatically, regardless of the severity of the accused crime. This means that every year, over 200,000 youth under the age of 18 in the U.S. are tried, prosecuted, and incarcerated as adults.

Even young people who are incarcerated as juveniles, however, experience tremendous hardship within the system. In addition to some debilitating and abusive conditions, youth in the juvenile justice system, whether currently incarcerated or on probation, are required to pay money to the courts for their own incarceration and probation. Youth on probation are responsible for payments such as supervisory fees, as well as fees for staying in juvenile hall while awaiting placement in group homes.

The School-to-Prison Pipeline

As schools are militarized across the country–with increased police presence and military training for the police placed in some of our schools–the number of students being funneled from schools into the juvenile justice system is correspondingly increasing. Overall, a 38 percent increase in law enforcement presence in schools between 1997 and 2007 is intimately related to 5 times more students being arrested in schools.

Most of these youths–even those who are not incarcerated extensively after their arrest–lose out on further educational opportunities due to schools’ zero tolerance policies. Zero tolerance policies in schools, which mandate harsh punishments for first-time (and often minor) offenses, emerged from zero tolerance approaches to President George H.W. Bush’s “war on drugs.” According to Professor Nancy A. Heitzeg, sociology instructor and the Program Director of the Critical Studies of Race/Ethnicity program at St. Catherine University, zero tolerance policies in schools are directly related to the funneling of students from schools into prisons:

While the school to prison pipeline is facilitated by a number of trends in education, it is most directly attributable to the expansion of zero tolerance policies. These policies have no measurable impact on school safety, but are associated with a number of negative effects‖ racially disproportionality, increased suspensions and expulsions, elevated drop-out rates, and multiple legal issues related to due process.

By criminalizing “bad behavior” among children in schools instead of supporting students who are in need, zero tolerance policies have, according to Washington Times reporter Nikki Krug, “produced unnecessary student suspensions for even the slightest violations of conduct, leading to higher risk of failing, dropping out and criminal prosecution for minors.” These higher drop-out rates make recidivism and further involvement in both the juvenile and adult justice systems much more likely, with 70 precent of students who become involved with the juvenile justice system dropping out of school entirely.

Young People in Solitary Confinement

Once involved in the juvenile justice system, many youths find themselves devastated by the impacts of solitary confinement. While New York has recently stated that it will end the solitary confinement of youth and those who are pregnant, the punishment is still a reality for many incarcerated youth elsewhere.

Locked in total isolation in small cells for 23 hours a day, children under the age of 18 are locked in solitary for days, weeks, and months on end across the United States every day. The mental health consequences of youth being locked in solitary are even more extreme than they are for adults. The Attorney General’s office has reported, for example, that half of youths who kill themselves while incarcerated do so while they are in solitary. Of those who are not in solitary at the time of their death, 62 percent had endured solitary confinement before.

The youths who do survive solitary are often plagued by the trauma they endure for years to come. In fact, Juan E. Méndez, a United Nations expert on torture, has argued that solitary confinement, especially when practiced on children under 18, amounts to torture.

Juvenile Justice and Racial Justice

According to the National Juvenile Justice Network, youth of color are disproportionately targeted by the juvenile justice system: “In every juvenile offense category—person, property, drug, and public order—youth of color receive harsher sentences and fewer services than white youth who have committed the same category of offenses.” This means that even though white youth commit the same crimes as youth of color, youth of color are criminalized and receive harsher sentences while white youth are more likely to get community service rather than incarceration.

Among these youth of color who are targeted by the juvenile justice system, a great number identify as LGBT. According to the Center for American Progress, around 300,000 LGBT youth are arrested and detained each year in the U.S., and approximately 60 percent of these youth are black and Latina. These youth are much more likely than non-LGBT peers to be targeted for abuse once incarcerated.

Juvenile Injustice?

Though issues abound in the juvenile justice system, many individuals and organizations are committed to making changes to the system. While efforts to reform and overhaul the juvenile justice system are underway, it is clear that youth who have gone through the juvenile justice system are taking the lead in efforts to ensure that justice, rather than injustice, is served. Until these problems are solved, the youth justice system may continue to be unjust.

Resources

Annie E. Casey Foundation: A Collection of Juvenile Justice Resources

Human Rights Watch: The Rest of Their Lives

Human Rights Watch: Growing Up Locked Down

American Civil Liberties Union: Stop Solitary

Center for American Progress: The Unfair Criminalization of Gay and Transgender Youth

PBS: Is the System Racially Biased?

Equal Justice Initiative: Children in Prison

Colorlines: Paying to Get Locked Up

Colorlines: More Police in Schools Means More Students Arrested

Advancement Project: Momentum Grows Against Zero Tolerance Discipline and High-Stakes Testing

NOLO: Do Juveniles Have a Right to Trial by Jury?

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post The Juvenile Justice System: Inequality and Unjust Treatment appeared first on Law Street.

When it comes to sports there’s nothing greater than watching a truly talented athlete ascend to fame, but there’s also nothing sadder than watching them fall. Former NFL running back Lawrence Phillips is already well known for his swift descent from stardom, but according to officials he may have reached an all new low. The 39-year-old Cornhusker great is suspected of killing his cellmate in a Central California prison, officials said Monday.

Remember former NFL player Lawrence Phillips? He’s suspected of murdering his cellmate: http://t.co/PmhGdYmaWy pic.twitter.com/83ircfRqL2

— Complex Sports (@Complex_Sports) April 14, 2015

According to USA Today, Kern Valley State Prison’s spokesman, Lieutenant Marshall Denning, said in a statement that Phillips’ cellmate Damion Soward, 37, was found lifeless in his cell early Saturday and pronounced dead. Soward was serving 82-to-life for a first degree murder charge.

In case you’ve forgotten, Phillips, 39, isn’t a particularly standup guy. In the 90s he was one of the nation’s top college football players at Nebraska before taking his talents professionally to the St. Louis Rams as a first round draft pick. But, his aggressive behavior off the field quickly led to his demise. According to Deadspin:

He was arrested three times before being released by the Rams, he was released by the Dolphins after he assaulted a woman in a nightclub, and he was charged with sexual assault while playing in the CFL. Most prominently, he was arrested in 1995 while still at Nebraska for dragging his girlfriend down a flight of stairs by her hair. Somehow, then-Nebraska head coach Tom Osbourne didn’t deem it an offense bad enough to kick Phillips off the team.

Phillips is currently serving a sentence of more than 31 years at the California prison stemming from two separate convictions that he’s serving consecutively. Those convictions resulted from domestic assault on his former girlfriend in 2005 whom he choked on two separate occasions, as well as for an incident later that year where he drove a stolen car onto a field and hit three teenagers after an argument during a pickup football game.

According to USA Today, prison officials said they suspect a second inmate at the prison of killing his cellmate as well, but it’s unclear if the two incidents are related. Prison officials also said that they are currently investigating both deaths along with the Kern County Coroner and the Kern County District Attorney.

As for Phillips, it’s not looking too good for the man who once had it all. If investigators find enough evidence to indict him again he could face possibly spending the rest of his life behind bars.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Ex-NFL Star Lawrence Phillips Suspected of Killing Cellmate appeared first on Law Street.

Last November, Rolling Stone shocked the nation with its 9,000-word article entitled “A Rape on Campus.” The piece told the horrific story of a University of Virginia freshman known only as “Jackie.” She claimed to have been gang raped by seven Phi Kappa Psi frat members during a frat date party. The article accused UVA of a “cycle of sexual violence” and “institutional indifference” that preferred to silence girls like Jackie who reported rape instead of helping them. The piece started an impressive national dialogue about rape culture, particularly rape culture on college campuses. Now after four months of investigating and roughly 70 interviews, police have concluded that the gang rape that reignited a movement most likely never even happened.

Charlottesville police announced Monday that they have found “no substantive basis” to support the gang rape detailed in Rolling Stone’s article. Investigators also found “no evidence” that a Phi Kappa Psi frat party even took place on the night of Sept. 28, 2012, which was when the rape was reported to have occurred.

In the above video Chief Longo says,

We’re not able to conclude to any substantive degree that an incident occurred at the Phi Kappa Psi fraternity house, or any other fraternity house, for that matter. That doesn’t mean something terrible didn’t happen to Jackie on the evening of Sept. 28, 2012. We’re just not able to gather sufficient facts to determine what that is.

There were a number of unsubstantiated claims made by Jackie in the Rolling Stone article that investigators detailed debunking. For starters, police found no proof that a party even occurred at the frat house the night of the alleged rape, but instead proved the Phi Kappa Psi brothers were attending a formal at their sister sorority, Delta Gamma, that evening. Jackie also claimed to have been hit over the head with a glass bottle during the rape, and that her roommate at the time, a nursing student, later removed glass shards from her face. But when police interviewed the roommate, she denied removing any such glass and claimed the wound was more consistent with an abrasion from having fallen. The list of inconsistencies didn’t stop there. For the full text from the Charlottesville police statement detailing their findings in the UVA rape case click here.

According to Chief Longo, the case is not closed but rather suspended until police are able to gather more information or someone comes forward providing more information.

So, what does this mean for Rolling Stone and its journalistic integrity? The magazine, which operated under the assumption that everything Jackie told it was true, already released a statement taking responsibility for its mistakes in handling the article. It admitted to its failure to contact the accused in the story, known as “Drew,” and get his side of the story. Now it’s opening itself up for further review by allowing the Columbia University Graduate School of Journalism to complete its own investigation into the magazine’s reporting, which will later be published in Rolling Stone in early April.

As for Phi Kappa Psi, the accused fraternity might be seeking legal action against Rolling Stone for “defamation”. UVA’s Phi Psi chapter said in a statement provided to Business Insider:

Phi Kappa Psi is now exploring its legal options to address the extensive damage caused by Rolling Stone — damage both to the chapter and its members and to the very cause upon which the magazine was focused.

From a legal perspective the frat has a pretty good case, due to the magazine’s gross lack of fact checking and failure to even contact the frat for its side of the story. However if the fraternity members plan to follow through with a suit, they must be willing to expose themselves yet again to scrutiny that could result in even more unwanted publicity.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Police Find No Evidence to Support UVA Gang Rape Story appeared first on Law Street.

A Colorado woman was arrested this week after a she orchestrated a Craigslist transaction that went very wrong. Thirty-four-year-old Dynel Lane of Longmont, Colorado allegedly cut out 26-year-old Michelle Wilkins’ unborn child from her womb, leaving Wilkins to call 911 herself and pretending that the baby was hers via miscarriage. The two women did not know each other and Wilkins had gone to Lane’s home in order to purchase baby clothes that Lane had advertised on Craigslist.

Read More: Slideshow: Killers of Craigslist

Law Street’s investigation into killings associated with making transactions on Craigslist, the popular buying-and-selling website, yielded the discovery of 58 murderers and 45 murder victims since 2009. This brutal attack is reminiscent of the 2009 attack on a pregnant 21-year-old woman in Oregon. Korena Roberts arranged to sell baby clothes to Heather Snively through an an on Craigslist. When Snively arrived at Roberts’ home, Roberts hit hit more than 30 times before cutting her open and taking her unborn child. In that case Snively died of major blood loss and Roberts pleaded guilty to one count of aggravated murder. She is serving a life sentence without the possibility of parole.

Michelle Wilkins survived Dynel Lane’s attack, with surgeons noting that the incision in her abdomen “appeared to be well performed.” Lane was a licensed nurse aide between July 21, 2010 and January 31, 2012. Wilkins’ baby, however, did not survive the grisly attack.

Police are now investigating the crime, as well as Lane’s history, as prosecutors determine how exactly to charge her. According to Boulder County District Attorney Stanley L. Garnett,

Under Colorado law, essentially, there’s no way murder charges can be brought if it’s not established that the fetus lived as a child outside the body of the mother for some period of time. I don’t know the answer yet as to whether that can be established.

Wilkins pregnancy was seven months along at the time of the attack, and the hospital report indicates that the baby “would have been viable.”

Lane was arrested on attempted first-degree murder, first-degree assault, and child abuse that knowingly and recklessly resulted in death. Charges are expected to be filed next week.

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Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

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Can labeling someone a sex offender be considered a cruel and unusual punishment? Well, a man in Ohio is attempting to argue exactly that before the Ohio Supreme Court. He’s claiming that his mandated 25 years on the Sex Offender Registry, which one judge called an undeserved “scarlet letter,” is a cruel and unusual punishment. As a result, this has become a case that could potentially change the way sex offenders are classified in the United States.

Clark County native Travis Blankenship, 21, had sex twice with a 15-year-old girl in 2011. According to the the Columbus Dispatch, Blankenship was examined by a psychologist who determined that he was not a sexual offender, did not require any sort of treatment, and was unlikely to reoffend. Taking the psychologist’s findings into consideration, the judge sentenced him in 2012 to serve 12 days of a six-month sentence for unlawful sexual conduct with a minor, which is a fourth-degree felony.

Because the girl was 15 at the time, his crime was automatically classified as a Tier II sex offense under Ohio’s Adam Walsh Act, which requires that he register with the Sex Offender Registry for no less than 25 years, with verification of his information twice a year. On March 10, Blankenship’s public defender Katherine Ross-Kinzie presented her oral argument before the Ohio Supreme Court, attempting to prove that this mandatory punishment is “grossly disproportionate” with Blankenship’s offense and thus cruel and unusual punishment, which is unconstitutional.

This is Blankenship’s 2nd appeal after the Second District Ohio Court of Appeals in a 2-1 decision upheld the ruling that declared him a sex offender. Before 2007, whether or not someone would have to register as a sex offender was decided by a judge, not an automatic penalty under the law.

Judge Mary Donovan was the dissenter in that decision, writing:

He was punished with a scarlet letter of 25 years duration. This 25 years is part of his punishment and, in my view, is grossly disproportionate in severity to the crime committed.This classification carries significant restraints on Blankenship’s liberty and a social stigma that interferes with employability, travel and housing.

In her oral argument that can be viewed here, Blankenship’s lawyer said that she is not disagreeing that her client is a sex offender under the revised law, but rather that there is a discrepancy between the revised code’s definition and the psychologist’s determination in this particular case.

The idea behind the registry is to publicly notify citizens where sex offenders are located in an effort to protect the public, especially children. People have the right to share this information and even put up fliers notifying residents of local sex offenders, which can easily ostracize those offenders from the community. Failure to register is illegal and could land an offender back in jail. The sex offender registry system has been widely criticized as potentially doing more harm than good, with many people demanding it be reformed. A Law Street issues brief on reforming the Sex Offender Registry can be read here.

The case is still ongoing and the court is not expected to make a decision until later this year. Whatever the court’s ruling is, it may set the tone for future cases that could potentially impact how we define sex offenders.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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A recent HBO documentary has been tracking the life of Robert Durst, 71, a member of a huge New York City real estate empire. “The Jinx: The Life and Deaths of Robert Durst,” follows Durst, who has had multiple run ins with the law. The most recent of those just occurred, as Durst was arrested yesterday in New Orleans in connection with the 2000 death of his friend, Los Angeles-based writer Kathleen Berman.

The Durst Organization owns more than 15 prominent New York City skyscrapers, including the Bank of America building, and has been involved in building the massive One World Trade Center. The family’s net worth is estimated to be $4.4 billion, making them the 58th richest family in America, according to Forbes. While Durst is not involved with the family business, and is actually almost completely estranged from his family, he certainly has not had to want for money throughout his life.

Despite his family’s success, however, he’s had trouble with law enforcement. The first high profile incident seemingly occurred in 1982, when Durst was a suspect in the disappearance of his wife, a medical student by the name of Kathleen McCormack. According to a friend, they were fighting shortly before McCormack’s disappearance. He has never been charged, although he was the only suspect, and there’s long been speculation that he was responsible for her disappearance, and by extension, death. For example, a 2010 fictionalized version of the events, “All Good Things,” starring Kirsten Dunst and Ryan Gosling strongly implies that Durst was responsible.

The murder charge that Durst is currently being held on relates to McCormack’s disappearance as well. Officials allege that Durst’s close friend Kathleen Berman was contacted by investigators looking into McCormack’s case. She was supposed to meet them to talk about what she knew. Shortly after that, Berman was found shot in the back of the head. Durst is currently being held on a first-degree murder warrant for that death.

In a strange turn of events, shortly after Berman was killed, Durst was arrested for a completely separate murder. He was arrested for killing his neighbor in Galveston, Texas, a man by the name of Morris Black. After killing Black, he cut up his body and dumped it into a nearby river. In a verdict that shocked many, however, Durst was acquitted on the grounds that he had acted in self defense.

The last episode in the HBO documentary is set to air tonight–and it will be interesting to see if the program can shed anymore light onto the case. After all, last week’s episode showed LA police officers closing in on making an arrest in the Berman case.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Attitudes toward prostitution in the United States have long been based on the Judeo-Christian tradition arguing that selling sex is immoral; however, global trends arguing for sexual self-determination and changing attitudes toward the sex industry have become more popular. The United Nations Secretary General has even called for the decriminalization of sex work. These changes pose the question: how should the United States address the issue of prostitution?

The U.S. still criminalizes sex work, but the urgency of making changes in this sphere is evident in the growing sex worker rights movement that strives to define the legal status and rights of prostitutes. Read on to learn more about different models of regulating prostitution, and the arguments for and against them.

What are the real numbers behind prostitution?

Prostitution is “the act of offering one’s self for hire to engage in sexual relations.” In other words, it’s an exchange of a sexual act for money.

It’s hard to determine the real numbers behind prostitution due to the fact that sex work is criminalized in the United States. As most of the actors involved in this business operate underground, statistics are rather scarce. Some estimates of the current number of prostitutes range from 230,000 to 350,000, but others put the number closer to one million.

Prostitutes come from a variety of backgrounds. Indisputably, there are those who come from marginalized and impoverished environments, were sexually abused, homeless, poorly educated, or drug addicted. In addition, some women and men are coerced or trafficked into prostitution. Every year thousands of people are trafficked for the purposes of exploitation, including sexual exploitation. However, this doesn’t mean that all prostitutes are forced or trafficked. There are also those who chose to become involved in sex work of their own volition. These people can have different motivations to enter the sex industry, citing high earnings, flexible work hours, or genuine passion for this line of work.

Should prostitution be decriminalized, legalized, or none of the above?

Generally, you hear about three distinct approaches to prostitution: criminalization, decriminalization, and legalization. All of them are rooted in different ideological perspectives and include diverse goals and contrasting methods of achieving their desired objectives. Watch the video below to learn more about the ongoing debate over prostitution.

Criminalization

Prostitution is criminalized in most parts of the United States. Proponents of this view often believe that prostitution is immoral, and therefore label it as a criminal behavior. In their view, prostitution endangers marriages and is simply wrong. Prostitutes are viewed as criminals who behave illegally. The rhetoric of those who support criminalization is often centered on the notion that such alternatives as legalization will have devastating consequences on the American morale.

The supporters of criminalization also connect legal prostitution with increased sex trafficking, the spread of STDs, and a greater number of children being coerced into the sex industry. Watch the video below to learn more about Catharine MacKinnon’s arguments against the legalization of prostitution and its connection with human trafficking.

Decriminalization

Decriminalization means the removal of certain criminal laws related to the operation of the sex industry. When prostitution is decriminalized, consensual adult sexual activity in a commercial setting is no longer viewed as a crime. Decriminalization can be considered a half step toward legalization as individuals engaged in the business can be required to obtain a special permit or be subjected to penalties. Essentially, if a person is caught in the act, his punishment will be no more than a fine, something along the lines of speeding or a parking ticket.

At the same time, decriminalization doesn’t legalize sex work, but does instruct law enforcement to give low priority to prostitution cases. This approach intends to use the already existing legal mechanisms to support the health and safety of prostitutes. Many advocates of decriminalization cite labor and anti-discrimination laws as arguments to grant prostitutes certain rights, including freedom of choice and self-regulation.

Decriminalized systems often still impose criminal penalties for all other actors involved in the business, including clients and pimps. This perspective is rooted in the abolitionist movement that historically rescued women from prostitution and trained them for alternative careers. In this view, prostitutes are victims of male exploitation and supporters of this approach often consider prostitution demeaning to women.

The ultimate goal of decriminalization is to uproot the profession by targeting those who purchase sex in the first place. It’s believed that by eradicating the demand, the supply will subside on its own. The advocates of this form of decriminalization usually strongly oppose legalization that will make the sex business flourish instead of extinguishing the industry.

The Swedish Model

The Swedish model is the most influential decriminalization example. Since 1999, buying sex in Sweden is a criminal offense punishable by fines or up to six months imprisonment. Contrarily, selling of sexual services is not a criminal offense, meaning that prostitutes are not subjected to criminal law proceedings. The law is popular in Sweden–80 percent of the Swedish population supports the initiative, but many are still skeptical of its effectiveness.

The Swedish model was also adopted in Norway and Iceland. In 2014, Canada moved to this model of controlling public solicitation of prostitution and restricting demand on sexual services. In addition, similar decriminalization models were adopted in Nepal, India, American Samoa, Bhutan, Cambodia, China, Fiji, Guam, Republic of Korea, Palau, and Taiwan.

What are the arguments in favor of decriminalization?

Decriminalization of prostitution can arguably decrease violence against prostitutes. A study in San Francisco found that 82 percent of prostitutes have been assaulted and 68 percent were raped during their time working in the sex industry. Another study in Colorado Springs found that prostitutes were 18 times more likely to be murdered than non-prostitute women of their demographic. If sex work is criminalized, prostitutes are reluctant to ask for help or go to the police if victimized. If decriminalized, prostitutes and law enforcement will have an avenue for communication, and if a prostitute is victimized she can report the crime to the police without the fear of being charged and detained for prostitution.

Decriminalization can also benefit the investigation of sex trafficking cases as prostitutes can aid law enforcement with information from the inside. In addition, law enforcement can save valuable resources as police departments won’t need to deal with as many prostitution cases. In 2011, Texas alone spent $8 million on prison expenses related to prostitution. Decriminalization won’t eliminate the financial burden completely as pimps and johns are often criminalized in those countries who adhere to decriminalization model, but it can decrease expenses overall and re-direct resources towards other crimes.

What are the arguments against decriminalization?

Criminalization of sexual services for clients, and not for prostitutes, can be challenging as both those who purchase and provide sexual services are unlikely to admit to the transaction. Clients will be reluctant to do so due to the existing criminal laws, while prostitutes can lose their income and clientele if they aid law enforcement. In fact, several independent studies have shown that current laws have pushed some Swedish prostitutes underground, resulting in an increased danger of victimization.

Those who oppose the Swedish approach to prostitution are also concerned with its unintended consequences of stigmatization and marginalization of those who enter the sex industry of their own volition. The Swedish model doesn’t acknowledge that prostitutes can choose this occupation out of their free will, but view all prostitutes as passive victims of violence and abuse.

Overall, there isn’t much evidence that this approach improves the quality of work and life of sex workers, or decreases HIV or STD transmissions. Even through the Swedish model is popular around the world, both the Swedish and the international experiences don’t provide enough indications of decline in prostitution.

Legalization

Legalization usually involves a system of laws and government regulations that define the operation of the sex industry. Such a system can be highly regulated or merely define the legal conditions under which prostitutes can operate. Legalization is often accompanied by strict criminal penalties for those who operate outside the established framework. Prostitutes are often required to pay special taxes, can work only in specified zones, and to register with the government. In addition, prostitutes are often obligated to regularly undergo health checks, and to obtain special licenses to legally operate as a sex workers. Thus, the legalization of prostitution seeks to control, regulate, and define the rules of the sex industry.

The legalization model emphasizes freedom of personal choice and regards prostitution as a form of work. The supporters of this approach maintain the belief that sexual relations between two consenting adults should’t be criminalized as those who engage in this type of relations do so voluntarily. This rhetoric is centered on the notion that people are free to choose what to do with their bodies and, therefore, entering into contracts to provide sexual services is their right that shouldn’t be undermined by the views of those who don’t agree with their decision. At the same time, advocates for legalization acknowledge that people can be forced or coerced into prostitution. They also acknowledge the existence of trafficking and exploitation, but don’t believe that all women are victims, and that prostitution automatically leads to violence.

European Experiences

The Netherlands and Germany are, probably, the most prominent examples of legalization. The Netherlands legalized prostitution in 2000, and it’s now regulated by the country’s labor laws. Germany followed in 2002 by providing prostitutes with legal protections and social insurance. In both countries the sex industry boomed, resulting in increased numbers of legal brothels and prostitutes, but also prompted concerns over increased cases of human trafficking.

Nevada’s Legal Brothels

The state of Nevada has a long history of regulating prostitution in some counties, starting in  1937 when a law was enacted to require weekly health checks for all prostitutes. In 1971, Nevada began taxing brothels, thus legalizing the sex industry in rural counties of the state. As of now, there are around 500 prostitutes who are working in 30 brothels. A recent study found that 84 percent of the surveyed prostitutes in Nevada felt safe working in the legal brothels, and were not trafficked or coerced into prostitution. Contrary to the European countries that have legalized prostitution, Nevada’s sex workers are considered independent contractors. Consequently, they don’t receive unemployment, retirement, or healthcare benefits.

What are the arguments for legalization?

All arguments cited earlier in support of the decriminalization model, such as decreased violence, better cooperation with police, and re-direction of valuable law enforcement resources, can be relevant when taking about legalization, as well.

The advocates for legalization argue that such a model of regulating prostitution can provide even more safety for prostitutes. Legal brothels are often closely observed and monitored by the law enforcement agencies to ensure compliance with safety regulations and to prevent sex trafficking cases. Legalization can also completely eliminate  the financial burden from police departments as there will be no prostitution cases to pursue. It’s estimated that in 2010, California alone arrested 11,334 people for prostitution. In Texas, an average of 350 prostitutes are sentenced to serve time in state prisons yearly. Proponents argue that legalization can decrease the prison population and save state resources that otherwise would be used to investigate, prosecute, sentence, and house those who are charged with this “victimless” crime.

In addition, legalization advocates argue that condom requirements and mandatory HIV and STD testing can reduce health risks for prostitutes and clients alike. If sex work is criminalized, fewer prostitutes will have access to testing services and fewer of them will practice safe sex. It was found that in the United States only three to five percent of STDs can be attributed to prostitution, supporting the argument that prostitutes are not vehicles of HIV and STD transmissions. The number of prostitutes infected with STDs in New Zealand and New South Wales, where prostitution is legalized, is very low or non-existent. In Nevada, there were no registered cases of HIV among legal sex workers. Watch the video below to learn more about Nevada’s health regulations and condom requirements for legal prostitutes.

Another argument is the revenue that legalized prostitution can bring in the form of income taxes. According to some estimates based on the current income of Nevada’s legal prostitutes, legalization can generate $20,000 in federal income taxes per person per year. Not only could this money be used to provide more social and health services for prostitutes, but could be spent on other governmental needs as well.

Perhaps the biggest and the most controversial argument in support of legalization of prostitution is the extension of labor rights and other occupational benefits to prostitutes. If prostitution is treated as any other profession, legal sex workers can be entitled to minimum wage, freedom from discrimination, and safe work environments. They can claim benefits, form or join unions, and get access to medical insurance and pension plans.

Lastly, supporters of legalization believe that prostitution is no different than pornography, lap-dancing, tobacco, alcohol, and gambling, which are all legal in the United States.

What are the arguments against legalization?

The most common argument against legalization of prostitution is its close connection with human trafficking and organized crime. The Netherlands’ legalization of sex work is cited as an example of a failing experiment as Amsterdam became a hub for traffickers and organized crime groups. The Dutch Justice Ministry closed over 320 prostitution windows as a part of the initiative to curb violence against migrant women, who are often forced by traffickers and pimps to work as window prostitutes in the city’s Red Light District.

The increase in child sexual exploitation is another point of concern for those who advocate against the legalization of prostitution. The adult sex industry is viewed as perpetuating the recruitment of children as sex workers, who also could be trafficked and coerced into sexual exploitation.

Prostitution is also thought to increase crime rates as it is a magnet for ancillary crimes, including drug, sex, and violent crimes. In this view, with any form of legalization those crimes can only increase as pimps and traffickers would have more legal avenues to conduct their illicit businesses.

Together with increased crime rates and  human trafficking, legalization can give more power to pimps as they are transformed into businessmen. According to this assumption, working in legal brothels can increase the likelihood of victimization as women spend their time in closed spaces and have fewer resources to ask for help or seek protection against abuse. Prostitutes in one of Nevada’s brothels compared their working conditions to a prison environment as most of the time they were locked inside their rooms waiting for clients and could leave the premises only with their male pimps.

Those who oppose legalization of prostitution also state that prostitutes will continue to spread diseases, even if their services are legalized. As it can take up to two weeks to process STD tests, sex workers can continue to infect their clients, prompting the spread of infections and STDs, regardless of their legal status.

Conclusion

How to deal with prostitution is an endless topic of debate. As decriminalization has its benefits and pitfalls, so does legalization. Even though each model has a different set of goals, both converge on the opinion that prostitutes shouldn’t be criminalized. The United States needs to start participating in the international discussions and may soon consider an alternative to the outdated criminalization model.

 Resources

Primary

UNODC: Human Trafficking

Additional

RNW: FAQ – Prostitution in the Netherlands

Alternet: Should Prostitution be Legalized?

Business Insider: Everything You Ever Wanted to Know About Prostitution in Nevada

Business Insider: Seven Reasons Why America Should Legalize Prostitution

California State University Northridge: Should Contractual Sex Be Legalized?

CBS News: Prostitution Laws: Europeans Debate Whether Criminalization or Legalization Works Better

Difference Between Net: Difference Between Legalization and Decriminalization

Digital Journal: Amsterdam Courts Ready to Clean Up Red Light District

The New York Times: Labour Laws, Not Criminal Laws, Are the Solution to Prostitution

The New York Times: Legalizing Prostitution Leads to More Trafficking

The New York Times: Nevada’s Legal Brothels Make Workers Feel Safer

The New York Times: Nevada’s Legal Brothels are Coercive, too

Prostitution Education Network: Prostitution Law Reform: Defining Terms

The NAYked Truth: Prostitution: The Economic and Criminal Justice Benefits of Legalization

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

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As Eddie Ray Routh’s trial continues in the high profile American Sniper murder case, two videos shown to the jurors by the prosecution may in fact aid the defense in trying to prove an insanity defense. This case highlights the difficult of using the insanity defense in real life–any defense based on someone’s state  of mind requires a lot of guesswork and interpretation.

Routh is accused of killing retired Navy Seal and author of the bestselling memoir “American Sniper” Chris Kyle and his neighbor Chad Littlefield. The killings took place at the Rough Creek Ranch-Lodge-Resort shooting range in Erath County, Texas. Routh, who fled the murder scene, pleaded not guilty to both murders in a Stephenville, Texas courtroom, but many wonder if he’ll be able to receive a fair trial just months after the film adaptation of “American Sniper” grossed millions in the box office .

Yesterday the prosecution rested, allowing the defense to begin using Routh’s history of mental illness to argue an insanity defense, in hopes of combatting a potential death penalty outcome. Routh had spent two years in mental hospitals suffering from schizophrenia and post traumatic stress disorder prior to the murders.

The prosecution, on the other hand, is arguing that Routh was not insane, but rather abused drugs and alcohol. They are arguing he knew right from wrong in spite of his schizophrenia diagnosis for which he was taking medication. Despite this, they seemingly managed to lay foundation for his defense team with a video submitted Tuesday into evidence that sheds light on the what kind of mental state he was in around the time of the murders.

The court is not allowing the audio to be released to the public until after the trial, but in the video Routh is seen in the back of a cop car after being arrested. He is breathing heavily and teary-eyed.

According to CNN, an officer asks if he’s okay. Routh replies:

I’m just so nervous about what’s been happening in my life today. I don’t know what’s been happening. I’ve been so paranoid schizophrenic all day. I don’t know what to even think of the world right now. I don’t know if I’m insane or sane.

Routh clearly sounds disturbed in his ramblings, making me question why the prosecution thought this would benefit them. You can watch brief scenes from the evidence in USA Today’s video account of the proceedings below.

In another video shown to jurors of his police interrogation the night of the murders, Routh is shown sounding even more unhinged. According to USA Today he confesses to the shootings saying:

I knew if I didn’t take out his soul, he was going to take mine. You can’t let people keep eating your soul, you know? Warlords aren’t happy with me.

However, the prosecution painted a different scene with recordings CNN reports were also released Tuesday of a jailhouse interview between Routh and a reporter from The New Yorker magazine. In the interview, he is heard saying several questionable phrases such as:

So we’re shooting pistols here huh? Hmmm, OK, Again, that’s pretty much saying duel motherf*****.

I was like what the f*** are you even doing here man? This isn’t a spectator sport, it’s a shooting sport, you shoot. And that’s what got me all, you know, wired up.

I took care of business and then I got in the truck and left.

In those recordings, he sounds somewhat confrontational and like he is lacking remorse. There are just a lot of questions about what was really going through Routh’s head at the time of the murders.

No one doubts that Routh was the one who shot Kyle and Littlefield, but understanding if he was mentally competent enough to understand what he was doing is the real question. Despite what legal procedurals would have you believe, insanity defenses are only used in less than 1 percent of felony cases, and only a fraction are successful. Keeping that in mind, Routh’s defense has only just begun to plead their case while Kyle’s entire community of Stephenville anxiously watches. Whether or not the insanity defense will succeed remains to be seen.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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With the widespread use of cellphones emerging in the late 1990s, the last few generations have been the first to have their every move documented for public consumption. Since then, cellphones have been ever present at many important events: proms, graduations, college orientation, and for first relationships. Still, within the last decade or so, cell phones changed from portable phones to portable computers with cameras attached, giving people the ability to take, edit, and share photos instantaneously. This ability has led to an increase in something known as “sexting,” defined as “sending nude, sexual or indecent photos (or ‘selfies’) using a computer, mobile phone or other mobile device.” In some cases, it can also include written messages or even videos.

Some states have adopted laws that have severe penalties aimed at teenagers who send, receive, or save such photos. These laws are not as severe as if they were legal adults possessing photos of an underage teen, but they are still serious consequences of which to be aware.

Dawn of a New Legal Era

Sexting laws are a relatively new concept, so that’s why they are somewhat murky to most Americans. Since 2009, many states have adopted teen sexting laws, and each year more states consider bills on the issue. States that already have laws include: Wyoming, Virginia, Pennsylvania, Ohio, New York, and Indiana. Several other states are also considering introducing sexting laws through their legislatures. Most states focus on teen sexting, though there are a few that also legislate other aspects of the activity. As teen sexting spreads and becomes a worry among parents, it’s probable that these laws will be adopted on a wider scale. That doesn’t mean that it is entirely legal in those states without sexting laws, however. In the states without any sexting laws, teens who sext may still see consequences as a result of the pre-existing laws that target child pornography.

What are states doing about teen sexting?

There are some states that have adopted laws specifically for sexting. These laws have explicitly targeted the images sent among teenagers. For example, Connecticut’s sexting law targets teens who create, save, or spread photos of themselves or others.

Here’s an example of how Pennsylvania approaches sexting, as it is illegal for teens ages 12-17 to posses the naked photo of another person in the same age range. According to a Criminal Defense Lawyer resource page:

For example, both a teen who sends a photo of a nude classmate and one who receives the photo could be prosecuted under Pennsylvania law. Teen sexting is punished more severely if the defendant takes or shares a nude photo of another teen without the teen’s permission, and in order to harass that person or cause him or her emotional distress. For example, a boy who shares nude photos of his ex-girlfriend after they break up could be charged with a more serious crime. Pennsylvania’s teen sexting law does not apply to images taken or distributed for commercial purposes, or images of sexual intercourse, penetration, or masturbation, or any other hardcore sexual images.

State laws differ significantly, however, depending on things like ages of majority and previous cases. Louisiana won’t allow anyone under 17 to send or keep pictures. Texas is one of the states that makes some allowances: if the minor sexts another minor, it’s not considered a crime, as long as the recipient’s age is within two years of the sender and the exchange is consensual.

For more information on your state, visit Mobile Safeguard’s Comprehensive list.

What do you do if someone sends this type of message to you?

Teen sexting laws prohibit both sending and receiving explicit images, which can be quite a gray area for some people, as well as some courts. How can you stop someone from sending you a photo? There’s a definite difference between requesting a picture and simply receiving one from another teen. The difference also comes from what you do when you get that picture.

Because of the grayness and the ability for sabotage, sexting laws typically prohibit “receiving and keeping” any explicit images. This means that if a teen or adult receives an image from a teen, the receiver must delete the message immediately in order to avoid legal trouble. To protect oneself, it would also be a good idea for the recipient to send a message stating that the image is not wanted or requested.

Federal Law and Sexting

Depending on the circumstances of the images in question, sexting may also be a crime under federal law.

According to Criminal Defense Lawyer:

Depending on the circumstances, sexting may also be a crime under federal law.

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)

Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who allow this behaviorcan also be prosecuted. (18 U.S.C. § 2251.)

That doesn’t mean that we’ll likely see federal prosecution of juveniles for sexting. The Federal Juvenile Delinquency Act (FJDA) generally posits that, where possible, juvenile cases should remain in state courts.

What happens in states that don’t have sexting laws?

For those states that do not specifically legislate against sexting, the act is usually covered under child pornography laws. This includes creating, possessing, or distributing the photos of anyone underage. This means that the child who takes the picture can be in legal trouble. Many people question the punishment for these young children, especially when they may have been coerced into sending the photos. There has been much debate about what the penalties should be for teenagers who send those photos. Some think they should not face the same penalties as those who are over 18, especially because it can impact everything from college choices to potential careers and living situations. Those who argue against this type of treatment want some of the lesser penalties listed below for teens who are caught sexting.

What are the possible penalties for sexting?

The penalties for teen sexting involve a lot of red tape, juvenile and adult courts, and also include various criminal laws. Overall there is a lot of coordination required anytime there are juveniles in the justice system, which is why some states have specific laws against sexting. Usually, it takes a contentious case to prompt the creation of a specific law.

Juveniles

When a juvenile commits a criminal offense through sexting, that offense is typically handled by the juvenile court system. Juvenile courts have wider discretion in the kinds of penalties they impose. Some of the penalties could include a warning, fines, having to serve community service, completing counseling, probation, or even a sentence to a juvenile facility.

Adults

If the person is 18 or older, he or she will be charged as an adult and could face incarceration, fines, or being entered onto the sex offender registry.

Conclusion

What many consider to be fun and harmless flirting online or over the phone can actually become a severe crime with consequences for both parties involved. It’s best to know where your state stands on the issue and to be smart about it. Sending pictures or messages via your phone opens up the doors for a world of trouble and heartache.

 Resources

 Primary

Connecticut State Police: Connecticut Sexting and Teens

National Criminal Justice Reference Service: Federal Juvenile Delinquency Act

Additional

Criminal Defense Lawyer: Teen Sexting in Pennsylvania

Daily Mail: Parents of ‘Sexting’ Teenagers Can Now Be Punished in Texas

Aggressive Criminal Defense: Sexting Laws and Legal Information

Washington Post: Stop Demonizing Teen Sexting. In Most Cases it is Completely Harmless

CNN: Chances Are Your Teen Has Sexted

 Editor’s Note: This article has been updated to credit select information to Criminal Defense Lawyer. 

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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I have a love-hate relationship with texting. Yes it’s quick and easy, but my sarcastic humor sometimes gets lost in translation. At least it used to, until I added the emoji keyboard to my messages. These cartoonish emoticons opened up a whole new world for me, one where I didn’t have to add “lol” to the end of every message to make it explicitly clear that I was joking. However, some of these emojis–like the gun, dead person, and police officer–don’t have police laughing, especially when used in a way that appears threatening.

Police are calling these emoji death threats, and they’re taking these pictures just as seriously as they would take words.

Take the case of 17-year-old Osiris Aristy from Bushwick, Brooklyn who was arrested for making terrorist threats by NYPD officers after posting images of himself with a gun and ammunition on his Facebook with posts like “feel like katxhin a body right now” and “N***a run up on me, he gunna get blown down,” as well as other horribly spelled posts. The posts featured gun emojis next to a police officer emoji.

Just by looking at Aristy’s Facebook page, it’s clear he has a propensity towards posting emoji-laden updates. (He does not, apparently, have a habit of wearing shirts if the photo of him in the tweet below is any indication.)

“Osiris Aristy, 17, was arrested for Facebook posts” http://t.co/6X4MtWf4qF Great name, stupid kid – too bad #tcot#criming

— Dennis Price (@JustAHobbit) January 24, 2015

During the arrest, police found his weapon and 21 neatly packaged baggies of marijuana in his home. Aristy is currently held on a $150,000 bail and is due to appear in court next Friday.

What many naive teens may not realize is that police officers routinely check social media accounts for suspicious behavior. That’s exactly how Aristy, a repeat offender with past charges for criminal possession of a weapon, robbery and assault, was caught in the first place.

Police are taking these cartooned threats seriously because they have to. Just a couple weeks ago I wrote about Ismaaiyl Brinsley, a man who reportedly used the traffic app Waze to gun down NYPD officers Rafael Ramos and Wenjian Liu. Before the murders, Brinsley posted his plans to put “wings on pigs” next to gun emojis and #shootthepolice on his Instagram account. Police were notified of the threatening posts but it was already too late.

Freelance journalist Fletcher Babb also found himself on the other end of an emoji death threat, while researching Instagram’s black market culture for a piece he was writing. Babb discovered an Atlanta-based rapper who appeared to be selling a drug-laced syrup called “lean” through the social network. Babb posed as a potential customer, messaging back and forth with the rapper but never went through with purchasing any illegal drugs.

The rapper wasn’t pleased when he didn’t complete the sale and retaliated by posting on his Instagram a screenshot of Babb’s still-public Instagram account with a dead smiley face and gun emoji followed by the words “dude and his boys took the money off the green dot before they got the pints because I told them when it touch town I’ll take the money off then…”

According to Mashable, Babb reported the threatening post to Instagram, but the company never removed it. The dealer’s account was quickly deleted a couple days after the threat, which is apparently a common practice among drug dealers to avoid detection. Justin Patchin, Ph.D., a professor of criminal justice at the University of Wisconsin-Eau Claire and co-director of the Cyberbullying Research Center told Mashable:

When law enforcement investigates, they have to determine whether a person would have been reasonably threatened.

Intimidating or threatening imagery delivered via emoji, especially if it has been sustained over time or if the threats are coupled with some physical action, could warrant a criminal case on the grounds of assault or stalking. It could also be tried under civil or tort law as a case of defamation or an intentional wrong resulting in harm.

The penalties for such charges vary from state to state, ranging from a short jail sentence to a heavy fine. Keeping that in mind, emoji users should start to think twice before using a gun emoji, even if it is meant to be a joke. Police can consider it like it’s the real thing, and that perception could get you in some serious trouble.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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Public defenders don’t always have the best reputation. TV shows sometimes portray them as being fresh out of law school, inexperienced, and not dedicated to their clients–essentially the type of person you don’t want defending you in any legal capacity. In reality, many are dedicated veterans of the courtroom, and Jami Tillotson is a prime example. In fact, the long-time public defender was arrested January 27, 2015 for sticking to her job–defending her client. The entire scene was caught on two cellphone videos recorded by other attorneys present.

In the videos, Tillotson is seen standing next to her client and another man outside of a San Francisco Hall of Justice restroom, refusing to let their pictures be unlawfully taken. While trying to protect her client’s right to counsel she was arrested for “resisting arrest” (if that’s even a thing) by a plainclothes police officer, Sergeant Inspector Brian Stansbury. There was no mention of any other charge for her to even resist being arrested for, but when cops threatened her with arrest, she calmly replied, “Please do.”

The day of the incident Tillotson was in a courtroom representing her client on an unrelated misdemeanor theft charge, when she heard he and another man were being questioned by a group of police in the hallway, even though her client obviously had representation. Police were instructing her client how to pose for a photo when she intervened. She was well within her rights to do so on behalf of her client’s Fifth Amendment rights. Police didn’t see it that way though. Of course, after she was taken away in handcuffs their photos were taken anyways.

If you haven’t seen the cellphone footage of her arrest yet, you can watch the injustice below.

Apparently this isn’t the first time Sergeant Stansbury has used force to get his way. He was part of a 2013 federal civil rights lawsuit by a black San Francisco PD officer alleging racial profiling. In that case, Officer Lorenzo Adamson was stopped for not having a license plate when Stansbury immediately asked him if he was on probation or parole (because if you’re black you must be on one or the other), leading Adamson to believe that he was being racially profiled. Adamson was then choked and thrown to the ground by another police officer all the while repeating, “I’m a cop!”

Since Tillotson’s arrest video was uploaded to YouTube, her case has gone viral. Many are hailing her as a hero against this type of police intimidation and bullying, as well as questioning the legitimacy of her arrest. Stansbury might have just misspoken, intending to say “obstruction of justice” instead of “resisting arrest.” Either way, obstruction of justice and resisting arrest are charges abused far too often by police as a means to get their way or exert an alpha mentality.

David L. Carter, a criminology professor and former police officer, told NPR that police sometimes feel they have to arrest someone in order to “save face.” He also said some unjustified arrests also stem from officer fatigue when dealing with challenging members of the public, especially in protest situations. While Carter offers up some plausible reasons, it’s not the intent behind the injustice that matters; it’s the fact that there was even any to begin with.

Tillotson spoke about the arrest in a press conference last week, saying:

I was arrested for what we do as public defenders every day. I asked questions. I talked to my client and explained to him his rights. At that point, I was told I was interfering and taken into custody.

Her willingness to be taken away in cuffs is striking–it wouldn’t be surprising if she filed a civil suit against Stansbury and the other officers involved. While the current status of Tillotson’s case is unclear, one thing is certain; she will continue to defend her clients by any means necessary.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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The civil rights movement in America attempted to end segregation and racial discrimination of black Americans and secure federal protections of their rights. The Civil Rights Act of 1964 seemingly sealed the deal, prohibiting discrimination based on race. In spite of that, there is an argument to be made that racial discrimination is still a persistent problem in the United States. One important facet of the discussion is centered around the “war on drugs” and the so-called “tough on crime” policy approach that the United States has adopted since the 1970s. Racially disproportionate drug arrests have resulted in mass incarceration and prompted civil rights concerns. Read on to learn more about current drug policy and its implications in relation to civil rights.

History of Inequality in U.S. Drug Policy

Throughout history there have been many instances in which unequal treatment of various minority groups was evident in American drug laws. The first anti-drug law dates back to 1875, when smoking opium was penalized in San Francisco, primarily, it is believed, to stigmatize Chinese immigrants. In 1914 the Harrison Narcotics Act expanded the powers of the federal government, and concurrently the media portrayed black Americans as the primary users of cocaine, one such narcotic. Later, multiple reports by the media tied Mexican immigrants, who were entering the country for agricultural jobs, to marijuana-related violence. The result of that particular stereotype was the Marijuana Tax Act of 1937.

Congress created its first mandatory minimum sentencing law in 1952, the Boggs Act, which required a minimum sentence of two to ten years for first-time marijuana possession. But the most notorious mandatory minimum drug laws were enacted in New York under Nelson Rockefeller, who was the governor at the time. That mandatory sentence threshold was raised to a minimum of 15 years and a maximum of life in prison. The “Rockefeller Drug Laws” were enacted in 1973, signifying the beginning of a long-standing “tough on crime” policy in the United States.

The Anti-Drug Abuse Act of 1986 was the culmination of the “war on drugs,” requiring identical penalties (a five-year minimum sentence) for five grams of crack cocaine and 500 grams of powder cocaine. As crack cocaine was cheap, it dominated poor black communities, while more affluent, usually white communities, used the more expensive powder cocaine.

 Are the U.S. Drug Policies changing?

Under the Obama Administration, the ratio of crack to powder cocaine was significantly reduced when the Fair Sentencing Act was signed into law in August 2010. The current administration also acknowledged that the previous laws were discriminatory and disproportionately impacted communities of color.

State laws are also slowly changing, with California at the forefront of the movement. A new law, “Proposition 47,” enacted in 2014, reduces simple drug possession from a felony to a misdemeanor.

Politicians are also starting to speak up, calling for the end of “War on Drugs.” Outgoing Attorney General,Eric Holder is one of the most vociferous proponents of reducing mass incarceration and re-integrating formerly incarcerated individuals back into society.

In addition, legalization of marijuana is a hot topic everywhere in the United States. More and more states have legalized the drug for either recreational or medical use, prompting the idea of country-wide legalization and regulation in the future. The New York Times editorial board and President Barack Obama have spoken out in support of the legalization movement.

It’s plausible that American drug policy is undergoing a transition from prohibition and harsh sanctions toward regulation and rehabilitation practices. But it can still be characterized as a punitive system, highly centered on deterrence through long and harsh sentencing practices. There are also many concerns that the current drug policies are still racist in practice. People of color are disproportionally imprisoned for drug offenses, often creating vicious circles of poverty and crime.

What are the main concerns with the current U.S. Drug Policy?

Our drug policy enforcers are part of the judicial system, and there are many concerns that the judicial system treats members of minority populations more harshly than their counterparts. For example, black men are stopped and frisked at disproportionately higher rates than members of other communities. In 2011 the number of stops of young black men in New York City topped the city’s entire population of young black men: 168,126 stops compared to a population of just 158,406 young black men. In the same year, 52.9 percent of the people stopped and frisked were black, 33.7 percent were Latino, and only 9.3 percent were white. The stop and frisk racial landscape didn’t change much in 2014: 54 percent of those who were stopped and frisked were black, 27 percent were Latinos, and 12 percent were white. African Americans are also stopped more frequently when driving or entering the country.

Critics of the drug policy worry that black Americans are also more likely to be arrested. The rate of arrests for black Americans is 2.5 times higher than white Americans. At the same time, even though the black and white population use marijuana at roughly the same rates, black Americans are four times more likely to be arrested for drug offenses. Watch the video below to learn more about racial disparities in marijuana-related arrests.

Finally, black users are more often convicted and incarcerated for drug felonies. In 2009, 50.5 percent of the state prisoners convicted on drug offenses were African Americans, 17 percent were Latinos, and 30.1 percent were whites. Black men and women were also sent to prison on drug charges at 11.8 and 4.8 times the rate of their white counterparts, respectively.

Critics of our current polices point out that as a result of such discriminatory treatment, black Americans enter the prison system at a higher rate, stay there longer, and are more likely to go back there again. The harsh penal sanctions for drug offenses result in mass incarceration of individuals of color. Black Americans convicted of drug offenses constitute 53.3 percent of those admitted to state prisons. Watch the video below to learn more about mass incarceration in the United States.

Who thinks the current drug laws aren’t discriminatory?

There is another point of view that claims that the notion of differential treatment according to race is non-existent. Those who subscribe to that school of thought argue that African Americans simply commit more drug-related offenses. This argument posits that the police and criminal justice system are not biased toward minorities. It further asserts that the reason why disproportionately more black Americans end up in the criminal justice system has to do with relative crime rates, not racial bias. Some conservative voices hold the same view, citing that African Americans simply commit more crimes, especially those involving drugs. The video below shows Bill O’Reilly, a FOX News commentator, speaking in support of this point of view.

So, is U.S. Drug Policy a Civil Rights Issue?

What is a “Civil Rights Issue”?

Civil rights are centered on the notion of discrimination. A civil rights issue arises when an individual or group has been discriminated against on the basis of its race, sex, religion, age, physical limitation, or orientation. Civil rights issues are often discussed in the realm of employment or housing discrimination. Such spheres can be considered traditional civil rights battlegrounds.

The criminal justice system has been long overlooked when discussing civil rights violations. Only relatively recently did the ACLU and other civil and human rights groups begin to acknowledge that sentencing practices for drug offenses and the overall treatment of minorities in the criminal justice system is a civil rights issue.

How does the U.S. Drug Policy relate to Civil Rights?

Those who argue that the U.S. Drug Policy is a civil rights issue focus on the particular emphasis in drug laws that are not equal in their intent or enforcement. The majority of drug crimes are not committed by minorities, but the prison system is disproportionally filled with African Americans and Latinos.

The public has long associated poor communities of color with drugs and crime, a notion that was long perpetuated by the media. More minority arrests and convictions for drug offenses result in the belief that certain parts of the population use more drugs and commit more crime. It opens up a discussion on racial dynamics in American society and the impact of structural racism.

In this realm, many argue that the current drug policy can be considered a civil rights issue as it discriminates against communities of color in the criminal justice system by disproportionately targeting open drug markets in poor neighborhoods and failing to recognize the same dynamics in more affluent areas.

Conclusion

The current drug policy of the United States Government is centered on tough sanctions and long sentencing practices. It often ignores the fact that drug use is a public heath issue, locking up individuals for simple possession of certain drugs. At the same time, the enforcement of the current drug laws is disproportionately focused on communities of color, resulting in the mass incarceration of minorities. Thus, numerous civil and human rights groups consider U.S. drug policy a civil rights issue. But not everybody supports this point of view. The counter argument refuses a civil rights interpretation of the issue, claiming that minorities simply commit more drug-related offenses. No matter who is right or wrong, the current drug policy needs serious fixing.

Resources

Primary

The White House: Civil Rights

Additional

New Jim Crow: Mass Incarceration at the Age of Colorblindness

Foreign Policy in Focus: U.S. Drug Policy

Huffington Post: More Nails in the Drug War Coffin: Top Stories of 2014

Sentencing Project: Incarcerated Parents and their Children

Human Rights Watch: Race, Drugs, and Law Enforcement in the United States Bureau of Justice Statistics: Special Report. Civil Rights Complaints in U.S. District Courts, 1990-2006.

NYCLU: Stop and Frisk Data

ACLU: Driving While Black: Racial Profiling On Our Nation’s Highways

ACLU: Border Patrol Stops

Anti-Defamation League: Privilege, Discrimination, and Racial Disparities in the Criminal Justice System

Sentencing Project: Drug Policy

Human Rights Watch: Race and Drugs

New Century Foundation: The Color of Crime. Race, Crime and Justice in America

Center For Constitutional Rights: Floyd, et al, v. City of New York, et al.

The New York Times: An Editorial Series on Marijuana Legalization

Huffington Post: Obama: Marijuana No More Dangerous Than Alcohol

Legal Information Institute: Equal Protection

Leadership Conference: Justice On Trial: Racial Disparities in the American Criminal Justice System

NYCLU Briefing 2011: Stop and Frisk

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

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A judge, a few attorneys, and more than a thousand potential jurors are facing a tricky situation in a Boston court. How do you select jury members to try a crime that caught the whole nation off guard and drew international attention for days on end? Starting Monday, lawyers began to screen 1,200 Bostonians to serve on the jury of the Dzhokhar Tsarnaev trial.

Tsarnaev is the 21-year-old suspect in the 2013 Boston Marathon Bombing that killed three people and injured more than 260. Despite the fact that the death penalty was declared unconstitutional in Massachusetts in 1982, Tsarnaev faces capital punishment if he is convicted, given that the charges against him are federal.

That is what makes the selection process so tricky. Tsarnaev is almost definitely going to be convicted, considering the amount of incriminating evidence authorities have—including footage of him dropping what looks like a bag filled with explosives near the race’s finish line, an inscription he supposedly wrote inside the boat where he was captured, and bomb-making instructions that he allegedly downloaded. His defense is expected to focus on trying to save him from the death penalty by picking the right jury members. For the prosecution, it’s the opposite.

The Associated Press explains that the prosecution will want to look for jurors who see things in black and white (or guilty or not guilty) and are likely to favor the death penalty. Meanwhile, the defense will want to look for people who, despite knowing that Tsarnaev is responsible, want to understand what forces pushed him to kill.

CNN reported that Tsarnaev’s defense attorneys have suggested that his older brother, Tamerlan, who was killed in a police chase that ended in a firefight a few days after the marathon, was the mastermind behind the bombing. Dzhokhar, they’ll argue, was influenced and coerced by Tamerlan.

The defense is even trying to bring in the Tsarnaev family history as evidence, citing the psychological impact that Tsarnaev’s father, a refugee from Chechnya, had on him and his brother. The defense has said that the brothers grew up in an environment of “suspicion and fear.” On the other hand, the prosecutors are expected to use the evidence they have to show that Tsarnaev carried out the attack knowingly and willingly.

Tsarnaev is facing 30 federal charges, 17 of which are punishable by death or life in prison. If convicted of any of those, he’ll have a second trial with the same jury to determine sentencing. In the jury selection process, this presents another criterion for which the jurors need to be screened: they have to be willing to impose capital punishment if that is the way that justice is to be legally served.

This is all happening in a state that did away with the death penalty more than three decades ago. In a 2013 Boston Globe poll, 57 percent of respondents said they favored life without parole for Tsarnaev over capital punishment. In contrast, 33 percent said they favored death, and the rest said they didn’t know. Experts told the Globe the results reinforce the notion that most Massachusetts citizens oppose the death penalty. In Boston, a relatively liberal city, the court will have to choose jurors who don’t harbor any strong feelings about it. Anyone who does cannot be a member of the jury. The defense actually tried to move the trial away from Boston several times because of the obvious emotional toll the attacks had on the city, but U.S. District Judge George O’Toole Jr. refused.

The jury selection process is expected to take about three weeks. The trial is set to start in late January and take three to four months.

Zaid Shoorbajee

Zaid Shoorbajee is a an undergraduate student at The George Washington University majoring in journalism and economics. He is from the Washington, D.C. area and likes reading and writing about international affairs, politics, business and technology (especially when they intersect). Contact Zaid at staff@LawStreetMedia.com.

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Mental illness and criminal law mix as well as oil and vinegar. Law desires reason and cause. The reason and cause of mental illness is often difficult to detect. While our scientific grasp on mental illness is growing, the evidence of how and why it might influence an individual’s behavior is often more nebulous than a legal professional might prefer, especially in the case of violent crime.

That’s what makes the insanity defense such a controversial topic.

Mental illnesses are real and often incapacitating, but how can you definitively prove they exist in courtroom arguments?

Below we’ll dig into why the brain is so mysterious, what this mystery means for the insanity defense, and what scientific steps we’re taking to de-mystify our own brains.

The Brain: Anatomy’s Rubik’s Cube

Our brain and its team of 100 billion neurons puppet our every move, thought, and action. It’s truly a wondrous biological mechanism, allowing us to solve a number of puzzles–except the puzzle that the brain itself presents. It’s one of anatomy’s cruelest jokes. Our body’s own mechanism for logic doesn’t quite understand itself. Yet.

After years of research and remarkable breakthroughs, many aspects of the brain and mind remain tauntingly elusive. This is not an insult to scientists, but more of a testament to the brain’s enormous complexity.

John Cleese’s parody video below captures the brain’s mystique.

Time out…the brain AND the mind?

Are the brain and the mind different? Don’t worry, I’m not opening a philosophical debate. But for the purpose of the following discussion, we need to view the brain and the mind as separate entities.

In discussing mental illness and criminal law, the difference between the brain and the mind comes down to the difference between psychology and physiology.

The physiology of the brain refers to those biological functions it performs. Neurons using electrical impulses to communicate with other cells is a biological function. Some illnesses, like psychosis, can be traced to physiological malfunctions that result from things like brain tumors.

Dr. Allan Reiss discusses the physiological aspects of mental illness in the video below, as well as his ambitions for pinpointing the specific diseases instead of symptoms.

Psychology, on the other hand, refers to the more nebulous mind. While scientists do believe the mind is influenced and even dependent on the physiological functions of the brain, it’s difficult to make a direct connection. Many individuals exhibit symptoms of behavioral disorders that can be linked only to the mind and have no known physiological causes. In these cases, psychological diagnoses usually rely on observations and questions about a person’s feelings, moods, actions, and behaviors.

This will be important later, when we’re talking about hard evidence in insanity pleas.

Communication Breakdown

The mind is associated with will power and “the self.” It’s hard to accept that complex mechanisms in our brains might drive the show instead of us.

The brain is unfathomably complex. It contains billions of neurons whose interactions determine your body’s functioning by communicating through a series of electrical signals. Everything we do relies on how neurons communicate with one another. Disruptions in this communication because of abnormal functioning of brain circuits may be an underlying cause of mental illness. If connections between certain messaging pathways in the brain are disrupted, the way it processes information might also be disrupted and abnormal perception, moods, or behaviors can result.

In summary, mental illness happens when the brain cannot effectively coordinate the billions of cells it controls.

Mental Illness and Crime

So mental illness results when the brain cannot effectively coordinate some of the billions of cells it controls. Unfortunately, figuring out exactly where the coordination faltered among the brain’s billions of cells and functions is like figuring out who lead the applause in a crowded stadium.

This lack of certainty creates a convoluted intersection for mental health and criminal law. The insanity defense exists to make sure no one is imprisoned who didn’t truly understand the consequences of their actions due to mental illness. If mental illness did impair their sense of consequence and right and wrong, they may be declared not guilty by reason of insanity (NGRI). People found NGRI do not walk free–many are committed to mental institutions for at least as long as their criminal sentence would be.

For an insanity plea to hold weight, the defense must prove that the criminal’s mental condition directly influenced their actions at the time of the crime and inhibited their ability to appreciate that their actions were wrong.

Disorders with the most potent insanity defenses are those with physiological evidence that the condition caused an altered perception of reality or impaired ability to control behavior. For example, an X-ray clearly depicting a brain tumor that might have caused hallucinations is stronger evidence than a patchy history of emotional disturbances. If there is trauma, injury, tumors, or physical elements like epilepsy, the case will hold more weight than just a mere history of psychological episodes.

According to Richard McNally, PhD, a clinical psychologist at Harvard University:

“Certain disorders such as schizophrenia, bipolar disorder and autism fit the biological model in a very clear-cut sense.”

If you have biological indicators from dissections and imaging scans, you have more evidence that connects a disorder with a behavior.

Which disorders have the necessary elements?

While we don’t know the absolute and irrefutable causes of many mental illnesses, we do have evidence that some are more rooted in biology than others.

Voluntary intoxication doesn’t cut it.  Neither do pedophilia or pyromania, which are considered strictly antisocial personality disorders and are linked to thoughts, emotions, and behaviors and not dysfunctions of the brain.

People with psychosis have a skewed sense of reality. They are plagued by delusions and hallucinations that can severely impact their behavior. People with severe depression, bipolar disorder, and schizophrenia often suffer from psychosis. It has many possible causes rooted in biology including tumors, cysts, dementia, and stroke.

Those suffering from severe depression experience constant feelings of sadness or apathy. It affects how they feel, think, and react to many aspects of life. In some cases, like postpartum depression, victims can suffer from delusions and hallucinations. Chemical imbalances, changes in genes, and traumatic events are all possible causes.

Mania or bipolar disorder is associated with abnormally elevated moods that can lead to unpredictable behavior and impaired judgement. The severity of the disorder is determined by how fervent and incapacitating the abnormal moods are. Scientists haven’t discovered a single cause for bipolar disorder, but they’ve found compelling evidence that genetics and brain structure might play a role.

People with anxiety disorders suffer from anxiety that exceeds normal functional levels. They are unable to control it and it subsequently controls them. Post traumatic stress disorder is a type of anxiety disorder. While it’s triggered by an environmental trauma, some say genetics might play a major role in susceptibility.

Andrea Yates was suffering from postpartum psychosis when she murdered her children by drowning them. She was convicted at first, but her long, undeniable history of mental illness, attempted suicides, and extensive medical records led to a reversed decision that she was not guilty by reason of insanity.

Advances in Detection

There isn’t a test for detecting mental illness as finite as a blood test or an X-ray, but scientists are working on it. The idea is to prove that the mind and brain are one and the same and that all mental processes are brain processes. The brain is a biological organ so mental illness must have a testable, biological component and explanation. This would provide that solid link and evidence that forensic psychologists everywhere would cheer for.

Thomas R. Insel, MD, director of the National Institute of Mental Health, doesn’t think mental illnesses should be treated any differently from other chronic illnesses. He says,

“The only difference here is that the organ of interest is the brain instead of the heart or pancreas. But the same basic principles apply.”

Insel argues that EKGs and CT images allow us to explore the heart in ways unthinkable 100 years ago, and that similar breakthroughs could be coming down the pike for the brain. Advancements are already being made in neuroimaging that enable studies of brain structure and function. Positron emission tomography (PET), single-photon emission computer tomography (SPECT), and functional magnetic resonance imaging (fMRI) get us as close as we can possibly get to peering into the brain. Using this imaging, scientists have been able to make possible connections between brain pathways and mental disorders. They’ve also uncovered the functioning of previously mysterious brain regions.

The video below shows how scientists are also making waves in understanding how brain circuits might lead to mental illness.

Solving the Rubik’s Cube

Every advancement in detecting biological clues for mental illness would provide more evidence and substantial links for criminal cases involving people who are mentally ill.

With every advancement we make in solving the brain’s mysteries, another piece of the billion-square Rubik’s cube clicks into place. Earlier, I called the brain one of anatomy’s cruelest jokes because it doesn’t quite understand itself. But just like a real Rubik’s cube, even seemingly unsolvable puzzles can be cracked. Just because we don’t understand all of the intricate workings of our brains now, doesn’t mean we won’t ever. If any entity in the world is able to figure out the human brain, it’s the wondrous human brain itself.

Resources

Primary

APA: The Roots of Mental Illness

NIH: Brain Basics

APA: Assessing the Evidence of a Link Between Mental Illness and Violent

 Additional

Psychology Today: The Insanity Defense

WebMD: The Brain and Mental Illness

ABA: Criminal Justice Section Standards: Mental Health

Find Law: Current Application of the Insanity Defense

BrainFacts: Understanding Mental Disorders as Circuit Disorders

Ashley Bell

Ashley Bell communicates about health and wellness every day as a non-profit Program Manager. She has a Bachelor’s degree in Business and Economics from the College of William and Mary, and loves to investigate what changes in healthy policy and research might mean for the future. Contact Ashley at staff@LawStreetMedia.com.

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Watch any legal drama on TV — Criminal Minds, Law and Order, CSI, NCIS — and you’ll probably see at least a few suspects caught, or exonerated, through DNA testing. But how is DNA testing actually used in the real world? Read on to learn about DNA testing, its benefits, and its problems.

What is DNA testing?

DNA evidence is used to identify criminals or exonerate the falsely accused. Its technological advancement has led to widespread acceptance in crime scenes across the country. Today, the federal government and twenty six state governments allow genetic swabs to be taken without a warrant. In June 2013, the Supreme Court ruled that DNA could be tested after an arrest, before a trial and conviction.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” the majority wrote.

What are the arguments for DNA testing?

Proponents tout the advantages of DNA testing such as helping solve difficult cases and exonerating the wrongfully accused. According to the Innocence Project, more than three hundred wrongfully convicted individuals have been freed due to post-exoneration DNA testing. The government has created grants to help fund the research and development of DNA testing. It is especially helpful in identifying missing persons, solving cold cases, forensic backlog reduction and conviction accuracy. It has been called the most significant advance in criminal investigation because it ultimately leads to a higher rate of accuracy keeping dangerous criminals off the street.

DNA evidence most often remedies cases in which there was:

• Eyewitness Misidentification or Lying: Often, juries and judges listen to an eyewitness, especially if they seem confident, compelling, or convincing. However, as humans we aren’t perfect, and it’s entirely possible that eyewitnesses can make mistakes. Witnesses can also lie, possibly because they were coerced to do so. Informants are sometimes used in criminal trials, but they’re not always the most valuable witnesses because they’re usually testifying because they will get something out of it, such as a reduced sentence of their own.
• Forensic Mistake: There are some forensic techniques, especially older and more technologically rudimentary forensic testing methods that seem sound but actually have never been fully subjected to rigorous review. These can include things such as bite mark and shoe mark comparisons.
• False Confessions: It is also possible that a defendant lies. Whether out of confusion, coercion, fear, or any other reason, DNA has revealed that a confession was fabricated.
• Police or other law enforcement mistake: Police officers are also fallible. Whether mistakes are accidental or made on purpose varies, but it’s entirely possible that a police officer could make a mistake by not paying attention, due to corruption, or personal biases. DNA testing can help sort out where those mistakes were made.
• Lawyer Mistakes: Lawyers also aren’t perfect. Public defenders don’t always have the time or resources to launch a full defense, which can lead to false convictions.

What are the arguments against forensic DNA testing?

Opponents are concerned about the credibility of the process surrounding DNA testing. An investigation of eight hundred and forty three rape cases revealed that the technician had failed to document DNA evidence in twenty six sexual assault cases and had assigned the evidence to the wrong case in twenty six instances. Scientists have also reported that it is possible to fabricate blood and saliva samples containing DNA, essentially giving someone the ability to engineer an entire crime scene.

There have also been arguments against the way in which we as a state hoard DNA. Often when people are arrested, a DNA sample is collected, just like fingerprints are taken. But collecting the DNA isn’t always that effective. For example in 2011, the state of Maryland collected roughly 11,000 DNA samples, and less than 20 led to an arrest. Although there is limited and restricted access to DNA storage systems, they may get hacked or leaked by government officials who access these every day. Crime lab testing in general has numerous reports of sloppiness, inadequate training, and bias throughout the country.

Case Study

Michael Phillips

Michael Phillips was accused of raping a young woman in 1990. He pled guilty, not because he was guilty but because of the advice of his attorney. Phillips was a black man, the victim a white woman. And in Texas, a jury trial probably would have convicted him and sentenced him to a much worse punishment than what he received by pleading guilty. The young woman had also picked him out of a lineup, making the likelihood that he would be found guilty through a jury trial even more likely.

He was exonerated through DNA testing almost 25 years later. Through DNA testing of the rape kit performed on the victim, officials were able to determine that another man had raped the victim. Craig Watkins, the Dallas County District Attorney, released a statement saying:

DNA tells the truth, so this was another case of eyewitness misidentification where one individual’s life was wrongfully snatched and a violent criminal was allowed to go free. We apologize to Michael Phillips for a criminal justice system that failed him.

Conclusion

DNA testing is an important tool that can be used to find the guilty party and rule out those who have not committed the crime. But it’s not a magical solution to all law enforcement problems. It needs to be used carefully and responsibly to make sure that our criminal justice system is always fair.

Resources

Primary 

ABA: Standards on DNA Evidence

National Institute of Justice: DNA Initiative

Additional

The Innocence Project: Home

CNN: Supreme Court: DNA swab after arrest is legitimate search

PBS: The DNA “Wars” Are Over

DNA Resource: Forensic DNA Policy

Law Office of Kevin P. O’Donnell: Is DNA Evidence Always As reliable As We Think?

The New York Times: DNA Evidence Can Be Fabricated, Scientists Show

FSI Genetics: Authentication of forensic DNA samples

Congressional Research Service: DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues

NOLO: DNA Evidence in Criminal Cases

Lawyers: Use of DNA in Criminal Investigations

Law Street Media Staff

Law Street Media Staff posts are written by the team at Fastcase and Law Street Media

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