Senator Joseph Robach (R-Rochester) has introduced a bill, S-7304, to make it unlawful to release the mugshot of a person unless and until the person is convicted.  From SYR.com:

Even if a person is acquitted, the mugshot can still circulate online for years. Some people argue a mugshot can change the outcome of a case.

“Viewing someone’s photograph after the fact, sometimes months after the fact, there’s a danger of them identifying in court the person whose photograph they saw instead of the person who actually committed the offense,” said attorney Donald Kelly with Tully Rinckey PLLC.

Innocent or guilty, once a photo hits the web, it can be saved by nearly anyone with access to a computer.

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When Attorney General Eric Holder announced that the administration’s disgraceful handling of clemency would not define the president’s last few days in office, there was applause. Sure, a bit of cynical snarling about the disingenuousness of finding religion in a lame duck term, but still. Anything that helped people (and even Jim Cole admitted that sentences were unduly severe, despite his role in advocating for them in the well) was better than nothing, a cynical ploy though it might be.

But at HuffPo, Megan Quattlebaum pours some cold water on the joyous festivities by reminding us that there are 2,785 applications for clemency, people who have damn good reason to seek the mercy of the executive, that are growing moldy while the DoJ and White House are throwing themselves a party over how merciful they are, at least in the press.

Late last month, the Department of Justice announced a laudable initiative to seek out nonviolent drug offenders with long prison sentences whom it will consider for clemency. The initiative is open to federal prisoners who meet six criteria, including that they have served at least ten years of their sentence and likely would have received a substantially lower sentence if convicted of the same offense today. The goal, according to President Obama, is to help “restor[e] fundamental ideals of justice and fairness” to our penal system by releasing those who “would have already served their time and paid their debt to society” had they been sentenced under current law. Continue reading →

For those whose fond law school memories have yet to fade completely, you may still have some tiny recollection of admin law’s peculiar crutch called Chevron deference.  The notion is that if Congress hasn’t spoken directly to an issue, the courts will defer judgment to that of an administrative agency because they have magical voodoo powers.

It’s one of those legal fictions where the courts presume the agency to know how to administer its law because of its specialized knowledge, as opposed to its members being appointed because they shared a dorm room with a politician when both were back at Rosemary Hall.  It relieves a judge of the responsibility to think, to rule and to be responsible for his decision, by allowing the judge to shirk responsibility and shift the blame to the agency.

Such an animal exists within the federal criminal law sphere as well, called the United States Sentencing Guidelines Commission. No, it’s not quite a perfect analogue to an administrative agency, nor does anyone mention Chevron deference, but there is the same awed expectation of voodoo, the facile presumption of mad skilz, that allows judges to pass the buck. Continue reading →

Of the handful of case names familiar to just about anyone with a reasonably full set of teeth, Brown v. Board of Education of Topeka stands tall.  It was announced from the bench 60 years ago today, May 17, 1954.  It changed our nation.

The opinion was written by then-new Chief Justice Earl Warren, former three-term California Governor and Attorney General, a Republican appointed by Dwight D. Eisenhower.  Also on the Supreme Court was Robert Jackson, former Attorney General and Chief Nuremberg prosecutor, and mentor to 1952-3 law clerk William Rehnquist.

An old buddy of mine, John Q. Barrett, one-time fed turned crim law professor at St. Johns Law School, has maintained the Jackson List for the past generation.  As a member, I’ve had the enormous good fortune to receive John’s Jackson emails, with details, stories and background about  Justice Jackson.  This timely story arrived last week, which I share in full: Continue reading →

In a New York Times Room for Debate essay, Tim Wu sums it succinctly:

At Thursday’s F.C.C. public meeting, Chairman Tom Wheeler declared, with Lincolnesque firmness, that he would stand second to no one in his defense of net neutrality.

“I will not allow the asset of the open Internet to be compromised,” he said. Citing his experience as an entrepreneur and venture capitalist, he said he knew personally what artificial barriers to entry look like. There will be no fast lane, he declared, “I don’t like the idea that the Internet could be divided into haves and have-nots, and I will work to make sure that does not happen.”

Disaster averted, as Wheeler declares the internet to be safe from the machinations of smacking down those will refuse to grease the tubes with green, so that everyone, anyone, can access the web on the same footing. But…

[T]here is a gap between his speeches and the actual rules. The rules say, for example, that “our proposed no-blocking rule would allow broadband providers … to negotiate terms of service individually” with content sites provided that they are commercially reasonable, and don’t harm Internet openness.

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Pandering to fear and ignorance is far easier than trying to think hard or, harder still, explain something thoughtfully.  The limit may be one’s ability to explain well, but more often it is the ability and willingness of others to listen, to think, to care about anything beyond their transitory self-interest.  And when it comes to self-interest, there is nothing more likely to trump reason than safety.

So when North Dakota State University Police and Safety Office Director Ray Boyer decided to ban its budding fencing club from campus, the pitch was easy:

“What is more at issue is a society that has been conditioned to violent and often deadly behavior as a result of individuals’ use of weapons on campuses and in schools, that has led to a public reporting of these incidents with an expected police response to use deadly force to end the threat.”

“When the public sees someone displaying a sword in public in a hostile manner with another individual, it is reasonable for me to believe today that they would call police with an expectation that police respond with equal or greater force.”

“Sometimes the safest way is simply to have no weapons, real or perceived, on campus.”

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The “incident” involved a Springfield, Missouri police officer, Jason Shuck, who shot a panhandler outside Wal-Mart.

There’s no indication the man shot was armed at any time. He was running away from the officer when shot, police have said. Court records indicate that the man has been diagnosed with mental illnesses including schizophrenia and bipolar disorder.

Sadly, it’s become a rather pedestrian story that a police officer shot a person for running away.  No threat of harm to the officer. No First Rule of Policing issue. No threat of harm to anyone else.  He just didn’t do as he was told, and it’s easier to shoot than run after him.

But what distinguishes this story isn’t the underlying facts, but the way it was reported by the Springfield News-Leader.  This is what they report about Shuck.

Shuck’s 2013 meritorious service award from the police department stemmed from a July 16, 2012 incident. The man he disarmed had a shotgun in his mouth. Shuck holds a Class A peace officer license with the state Peace Officer Standards and Training Commission.

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New. From ABC. It’s How to get away with murder!!!

I know! It’s like a documentary.

It’s no biggie that people see the inside of the onion for law students and criminal defense lawyers, because everybody already knows we’re the coolest cats around.  But giving away the true inner secrets of the Academy?  There’s going to be some ‘splaining to do. Continue reading →

That there hasn’t been huge interest in the trial and appeal of Raphael Golb remains a mystery to me.  Aside from Eugene Volokh and I, interest in the blawgosphere has been nearly non-existent, which is sad given that the case is fascinating.  The facts underlying the case are quite remarkable, and the legal implications of the case for the rest of the internet are huge. There was even a Streisand moment in the middle.

Yet, it hasn’t sparked the level of interest and debate that it should have.  Now that the New York Court of Appeals has decided Golb, we’ll live with the consequences.  The Court, in an opinion by Judge Sheila Abdus-Salaam, upheld Golb’s misdemeanor convictions for five 19 counts of criminal impersonation in the second degree, Penal Law §190.25, which to the unknowing eye would make it appear a win for the prosecution. But not so fast.

A New York County grand jury charged defendant with 51counts of identity theft, criminal impersonation, forgery, aggravated harassment and unauthorized use of a computer. He proceeded to a jury trial, where 31 counts were submitted for the jury’s consideration. The jury convicted on 30 counts: two counts of identity theft in the second degree; 14 counts of criminal impersonation in the second degree; 10 counts of forgery in the third degree; three counts of aggravated harassment in the second degree; and one count of unauthorized use of a computer.

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The ruling out of the European Union was stunning: all the arguing and haggling aside by those who thought it would require some sort of agreement and mechanism, Europe’s highest court held in Google v. Gonzales that there already was a right to be forgotten, and Google better shape up.

Whether this is the start of a great new day or the end of one is a matter of priorities, at least for the moment:

Jonathan Zittrain, a law and computer science professor at Harvard, said those who were determined to shape their online personas could in essence have veto power over what they wanted people to know.

“Some will see this as corrupting,” he said. “Others will see it as purifying. I think it’s a bad solution to a very real problem, which is that everything is now on our permanent records.”

The mantra has long been that the internet never forgets, and it is a very real problem. Continue reading →