Articles Posted in Current Events

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Many defendants focus exclusively on only one issue in their case – Am I going to jail?  If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail).  What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.

Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time.  These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life.  A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.

Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport.  She was coming from Montego Bay, Jamaica.  In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases.  Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000.  Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs.  The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute.  Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months. Continue reading ›

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Prior articles on this blog have discussed our increasing dependency on our electronic devices.  Many members of my generation are still getting somewhat used to smart phones, I-pads, and the like.  However, for our children who have grown up with them, using these devices is perfectly natural and an ordinary part of life.  These things are all second-nature to them.  The younger generation will never understand our take on these devices because they did not grow up in a time when a Princess slim-line rotary telephone (remember those?) was cutting-edge technology.

While they seem to be thoroughly in tune with the latest technological rages and crazes, our kids do not necessarily appreciate the darker side of modern technology which, in addition to all kinds of devices, includes a bewildering array of apps and social media products and services.  Last week, an 18-year-old Ohio woman learned the hard way that misuse of this technology can have dire consequences.

Marina Alexeevna Lonina (age 18) and an acquaintance identified as Raymond Boyd Gates (age 29) have been charged in connection with the rape of one of Lonina’s classmates.  Lonina and the victim, who was 17 at the time of the incident, attended the same high school outside Columbus.  Lonina, Gates, and the victim were socializing at a Columbus residence when, at some point, Gates allegedly forced the victim to have sex with him.  Lonina “Periscoped” (live-streamed in real time) the rape.  One of Lonina’s friends, who was located in another State, viewed the live-stream of the rape and contacted law enforcement.  During the evening preceding the sexual assault, Lonina had also photographed the victim in the nude.  A Franklin County grand jury indicted Lonina and Gates for kidnapping, rape, sexual battery, and pandering sexually oriented material involving a minor.  Lonina was also charged with illegal use of a minor in nude material or performance, which related to photographing the victim the night preceding the rape.  These latter two charges appear to be variations of distributing child pornography.  Each defendant now faces over 40 years in prison. Continue reading ›

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A free and independent judiciary is a cornerstone of our constitutional structure.  In our system, judges are supposed to remain free of political pressure to the fullest extent possible so that they can interpret and apply our laws without having to fear political reprisals resulting from their decisions.  Anybody who has successfully completed a middle school social studies class knows that in this country, the judiciary is supposed to act as a check on the other two branches of government.  The notion of a free and independent judiciary is, however, being reduced to little more than a nice sentiment.  In reality, the federal judiciary, as well as state judicial systems throughout the country, are increasingly under assault from both the executive and/or legislative branches of government.

As a threshold matter, it is important to remember that no judicial system in the United States can be wholly free of politics.  Judges are elected to the bench in 38 states.  In these states, judges have to run political campaigns just like candidates for the legislative or executive branches which, of course, includes raising money.  Campaign spending in a recent Arkansas judicial election reached $1.2 million.  In a relatively recent Wisconsin judicial election, the amount exceeded $2.6 million.  The issues of campaign finance and money in politics are discussed frequently in the context of executive and legislative elections.  The same problem appears to be growing in the judicial arena as well, but does not appear to be receiving the same level of attention.  (Personally, I think the idea of an elected judge is patently silly, and totally contrary to the kind of judiciary that best fits within our constitutional democracy.)

Further, in states that do not elect judges, candidates are appointed to the bench by elected representatives.  Judicial appointments thereby become campaign issues at the time of the election and re-election of those representatives, and those elected to positions of power typically appoint judges who are either members of the same political party, who share their political views, and/or who contributed significant sums to their campaign.  Against this backdrop, it is completely naive to assume that all politics can be removed from the judicial appointment process.  Given the foregoing, some politics in the process is inevitable, and American society has apparently decided to accept this. Continue reading ›

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A US Magistrate Judge in California ruled recently that technology giant Apple could be required to create specialized software to help federal investigators bypass the security protocols on the encrypted Iphone 5S used by Syed Farook, one of the San Bernardino shooters.  This ruling conflicts with the ruling of a US Magistrate Judge in Brooklyn, who found that he could not order Apple to take steps to bypass the security features of an Iphone seized during an earlier drug investigation.

The media coverage of the more recent San Bernardino case has been far more extensive because it involves the December 2, 2015 mass-shooting committed by a married couple who were radicalized by ISIS.  The facts and events giving rise to the older Brooklyn case are far more ordinary.   But for the Iphone issue, that matter arises from just another relatively routine federal narcotics investigation – one of who-knows-how-many that play out in federal courts across the country every single day.

But a review of the ordinary drug case reveals far more about the development of the cell phone security issue that is at the heart of this debate.  The drug case involves an alleged methamphetamine dealer named Jun Feng, who’s phone was seized during the 2014 search of his Queens, New York residence.  Investigators sought to access his phone to obtain information that is fairly routine in drug cases, such as contact lists.  According to prosecutors in that case, Apple had assisted federal agents in extracting information from Iphones tied to criminal investigations approximately 70 times in seven years.  To law enforcement’s surprise, Apple suddenly changed its position as to such issues in Feng’s case.  Feng entered a guilty plea last October, but attorneys for both Apple and the Government continued to press the Court for a ruling and the Court ruled against the Government. Continue reading ›

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The United States Attorney’s Offices for the Southern District of New York and the Northern District of Georgia recently announced three indictments charging several defendants with, among other things, computer hacking, theft and fraud.  [US v. Shalon, No. 15-cr-00333 (S.D.N.Y.); US v. Murgio, No. 15-cr-00769 (S.D.N.Y.); and US v. Shalon, No. 15-cr-00393 (N.D.Ga.)]  More specifically, the grand juries hearing these cases charged the defendants with computer hacking, securities and wire fraud, identity theft, illegal internet gambling, conspiracy to commit money laundering, and operating an unlicensed money transmitter.  These cases are noteworthy not only because of the sheer magnitude of the enterprise described by federal prosecutors, but also because of the manner in which they highlight the increasingly aggressive posture that the Justice Department continues to take toward cybercrime.

According to the US Attorney, the defendants hacked into the computer systems of several large financial services companies and financial news publishers.  Federal prosecutors did not identify the companies involved, but other news sources identified at least some of them as JPMorgan Chase, ETrade, Scottrade, TDAmeritrade, Fidelity Investments, and Dow Jones.  The defendants allegedly stole personal information for more than 100 million people and used it to, among other things, market securities in a deceptive manner by arranging to have prospective purchasers cold-called.

The defendants’ other activities allegedly included operating illegal online casinos, payment processing for criminals, operating an illegal bitcoin exchange, and laundering money through up to 75 shell companies and accounts around the world.  In the course of doing so, the defendants purportedly procured and used over 200 false identification documents which included over 30 false passports issued by almost 20 different countries, as well as servers located in Egypt, the Czech Republic, South Africa, Brazil and other countries.  The US Attorney believes the defendants generated hundreds of millions of dollars in illegal proceeds.  Many of the charged offenses carry federal prison terms of 20 years. Continue reading ›

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The United States houses a quarter of the world’s prison population.  The Justice Department has an annual budget of about $27 Billion, a third of which is spent on operating the federal Bureau of Prison’s 120 facilities.  Further, since 1980, the US population has grown by about a third, while the federal prison population has grown by about 800%.  It is estimated that federal prisons are currently operating at about 40% over capacity.  Much of this resulted from the harsh sentences imposed for drug-related crimes in the 1980s and 1990s, when the approach to this class of offenders was mass-incarceration.

In April, 2014, the United States Sentencing Commission, the body responsible for formulating sentences for federal offenses, generated new guidelines that reduced the penalties for non-violent drug crimes.  It later said that the revised guidelines could be applied retroactively to many inmates serving long sentences for narcotics-related offenses, leading to inmate requests for reduced sentences.

The Commission’s actions on this issue coincide with bipartisan efforts to reverse the mass-incarceration approach to drug crimes.  Indeed, a bipartisan group of senators recently proposed substantial revisions to federal sentences geared toward reducing mandatory minimum sentences and granting early release to inmates serving sentences disproportionate to their offenses. Continue reading ›

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Cleveland, Ohio has become the latest city to enter into a consent decree with the United States Justice Department (“DOJ”) concerning the conduct of its police force.  Other cities that have previously entered into similar agreements include New Orleans, Seattle and Detroit.

The consent decree stemmed from a DOJ investigation that found Cleveland police officers had routinely used excessive force (e.g., tasers, pepper spray and guns) against mentally ill, unarmed and already-handcuffed suspects.  DOJ investigators reviewed approximately 600 use-of-force incidents that occurred between 2010 and 2013 and concluded that officers almost routinely used guns in a “careless and dangerous manner”.  Other problems with the police department included its apparent inability and/or unwillingness to investigate complaints against itself.

The consent decree will cover such topics as use of force by police officers, community policing and engagement, accountability, crisis intervention and bias-free policing.  The consent decree will be supervised by a Federal judge, and will terminate only after Cleveland can demonstrate sustained and substantial compliance with its terms.  If the City fails to implement the changes contemplated by the agreement, the judge can order them to do so. Continue reading ›

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The Cook County Jail in Chicago is one of the largest county jails in the United States, holding up to 9,000 inmates on any given day.  It is estimated that approximately one third of these inmates are mentally ill.  Indeed, Cook County officials have stated that the jail is, in effect, the largest mental health facility in Illinois.

Unfortunately, and as I have written in other posts, it is not unusual for a jail or prison facility to hold such a large number of mentally ill inmates.  What is unusual at Cook County, however, is the fact that the new director of the jail is a Clinical Psychologist, Dr. Nneka Jones Tapia.  Dr. Jones Tapia is apparently no stranger to the issues of mentally ill jail inmates or the situation in Cook County, having previously been in charge of the jail’s four divisions that house its large population of inmates with mental health issues.

Statistics show that the overall inmate population at the jail may be falling; however, the number of inmates with mental health issues either remains constant or increases.  These inmates suffer from the entire array of mental health problems including, without limitation, depression and bipolar disorder.  Some of them are floridly psychotic and require stabilization. Continue reading ›

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Human Rights Watch (“HRW”) recently issued a new Report finding that mentally ill inmates in US prisons are frequently mistreated, neglected and abused.  The Report also contains a lot of information concerning the role of prisons in the mental health system in this country.

First, according to the HRW Report, prisons have become the primary mental health care facilities in the United States.  One in every six inmates is mentally ill.  In fact, there are three times as many mentally ill prison inmates as there are patients in mental health care facilities.  The rate of mental illness in our prison population is three times higher than in our general population.  Figures gathered by the US Justice Department buttress these findings.  According to a DOJ study, 75% of women and 50% of men in State prisons, and 75% of women and 63% of men in local jails, will have a mental health problem requiring services in any given year.

Mentally ill inmates experience mistreatment and abuse on two different fronts.  First, inmates who do not suffer from mental illness routinely exploit them.  Additionally, their mental illness frequently leads them to violate institutional rules (e.g., making excessive noise, failing to comply with orders, cursing, banging on cell doors), with the result that they are punished for displaying the symptoms of their respective illnesses.  Depending upon the facts and circumstances surrounding a given violation, an inmate can be punished with placement in administrative segregation (the “hole”).  A sufficiently long period of time in such an environment can cause their illness to worsen significantly.  Inmates have also been subjected to excessive force by corrections officers, and some have even died from asphyxiation because of the manner in which guards have tried to control them. Continue reading ›

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New York’s Rikers Island is the second largest jail in the United States, housing between 11,000 and 12,500 inmates at a given time.  It is also one of the most violent jails in the country.

For many years, experts have acknowledged that placement in solitary confinement can negatively impact an inmate’s mental health.  Until recently, juvenile inmates at Rikers were routinely placed in solitary confinement even for minor offense including talking back, simple horseplay, possession of unauthorized amounts of clothing or art supplies, or ignoring a direct order.  Some of these juveniles sat in solitary confinement – locked alone in a cell for 23 hours a day – for up to 90 days.  Other juveniles sat in solitary confinement for up to one or even two years.

In August 2014, the United States Attorney’s Office in Manhattan issued a report that was highly critical of the New York City Correction Department’s treatment of teenage inmates at Rikers.  It noted that the atmosphere at the jail was permeated with a “deep-seated culture of violence”, and that the use of solitary confinement for juveniles (also known as “punitive segregation”) was “excessive and inappropriate”.  Forty percent of the teenage inmates were subjected to the use of force by guards at least once, and required medical assistance more than 450 times.  Teenage inmates were also instructed regularly to not report their injuries to other guards or the jail’s infirmary.  US Attorney Preet Bharara noted that “[t]here is a pattern and practice of conduct at Rikers that violates the constitutional rights of adolescent inmates … We are talking about a culture problem and a systemic problem – not an individualized issue …” Continue reading ›

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