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Bail Reform went into effect in New Jersey almost two years ago.  Its stated goals included, among other things, a reduction in jail populations.  At the heart of this issue was the implementation of a screening tool known as a Public Safety Assessment, or “PSA”, which is prepared by Pre-Trial Services.  The PSA is basically a scoresheet that evaluates each defendant to determine what, if any, terms of pre-trial release should be imposed by the Court, or if the defendant should be remanded to a county jail.  The PSA is used on a State-wide basis.  In other words, it is used in all counties for all defendants in the Superior Court.

I have always believed that the PSA is problematic because of its “one-size-fits-all” approach to the State’s defendant population.  I also believe that this concern is supported by the fact that the algorithm underlying the PSA does not account for all individual variations that may exist between and among all defendants.  Given that we have now had some experience with bail reform and the PSA, this may be a good time to take a hard look at the new pre-trial release procedures to see how well they work within the larger context of our State’s criminal justice system.

We can all agree that every jurisdiction wants to reduce its jail population.  Toward that end, New Jersey has not been the only state to adopt some sort of bail reform.  States all over the country are doing the same thing for the same reasons.  This is not surprising given the national experience over the last several decades.  We know that inmate populations have been rising nationally for decades.  In 1970, daily local jail populations were at about 157,000 inmates.  By 2015, that number exceeded 700,000.  Close to 11,000,000 people are  admitted into jails annually in this country.  Given these staggering numbers, coupled with the costs associated with building and maintaining jails as well as the societal costs stemming from incarceration, we need to constantly ask if enough is being done to reduce our jail populations to the lowest possible levels. Continue reading ›

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The face of the United States Supreme Court has changed considerably in a relatively short time.  Two very conservative judges – Brett Kavanaugh and Neil Gorsuch – have now joined the bench.  At least in some circles, it was believed that Gorsuch’s appointment would not have a monumental impact since he was replacing Antonin Scalia, who was a reliably conservative vote.  Now that Kavanaugh has been confirmed and sworn in, there is a solid five-judge conservative voting bloc,  As a result, defense attorneys need to be mindful of possible changes in the following areas:

Search and Seizure – The exclusionary rule is a judicial remedy designed to exclude evidence discovered as a result of police misconduct.  Essentially, the rule states that when tainted evidence is obtained as a result of wrongdoing by law enforcement, other evidence stemming from the original evidence is “fruit of the poisonous tree”, and must also be suppressed.  Justice Kennedy, who Kavanaugh replaced, was not a major fan of Mapp v. Ohio, which applied the exclusionary rule to the states.  Kavanaugh’s anticipated opposition to the exclusionary rule may send a message to prosecutors that it is to be overturned.  Given Kavanaugh’s history, do not be surprised if prosecutors start arguing that Mapp is to be reconsidered or overruled.  In fact, there may now be five votes on the Court that would hold in this way.  This momentous change would, in essence, allow law enforcement officers to ignore constitutional protections when collecting evidence.

Gun Rights – The Court previously took relatively few gun cases, but its new conservative majority will probably start reading the Second Amendment more broadly.  As a result, there will almost certainly be more cases that address the scope of gun control.  In fact, Justices Thomas and Alito, as well as Justice Gorsuch, have previously sought unsuccessfully to rule on more Second Amendment cases.  With Kavanaugh now on the bench, the “rule of four”, which allows four of the nine justices to grant cert, would be satisfied thereby adding additional gun control cases to the Court’s docket.  Thus, open issues, such as whether the right to bear arms outside the home, may be addressed.  The Court may also be asked soon to rule on issues concerning concealed carry permits, and on the validity of laws banning assault rifles. Continue reading ›

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We all have the experience every time we shop online.  Once we view or purchase an item on a particular website, ads for that site pop up everywhere we go online.  Online sellers are tracking our search habits so as to market and sell their merchandise.  We are, in fact, all being tracked online by companies like Amazon and Google that collect all kinds of information on users.  But retailers are not the only entities interested in collecting data from online sources.

“Predictive Policing” and “Precision Policing”, both of which include various data collection strategies, are being used increasingly by police departments around the country.  Generally speaking, the idea is to quantify, “data-fy” and control communities based upon the analysis of information collected online.  Sometimes, the information is purchased from data brokers.  However, law enforcement agencies are also developing their own internal collection systems.  For example, New York and Los Angeles continue to develop extensive gang databases.  In fact, Los Angeles has partnered with an entity called Palantir, whose technology has been utilized by the U.S. military and U.S. intelligence to track terrorists globally.  Much of the information is collected from social media including Facebook, Twitter, Youtube, Instagram, Tumblr, Pinterest, and the like.  The data is used to track individuals and groups who are deemed “high risk”.

Further, improved technology continues to give law enforcement the ability to collect, analyze and collate data from multiple sources.  For example, New York City has approximately 9,000 linked surveillance cameras in Manhattan.  This network affords the police the opportunity to view almost every street in the borough.  Currently, the system can go back as far as one month, and can track individuals wearing unique clothing such as a hat or shirt with a particular insignia, as well as track the time or place that a particular car is driven through an area.  The Chicago Police Department is using something called a “Heat List” which grades how dangerous someone is using a threat score of 1 to 500.  When someone is pulled over in what may start as a routine traffic stop, a threat score appears on the officer’s dashboard computer, ostensibly giving the officer some idea of how to approach the subject.

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This blog has previously addressed the fact that the statistics describing the state of the juvenile justice system in this country are alarming.  About 53,000 juveniles are incarcerated on any given day in the United States.  Many jurisdictions report recidivism rates exceeding 50% during a one to three year period.  We have also learned that education is closely linked to criminal behavior.  Incarcerated juveniles are 13% less likely to complete high school, and 22% more likely to be incarcerated as adults.  At least one study estimates that 200,000 young offenders are tried sentenced, and/or incarcerated as adults each year, and juveniles in the adult system are between 34% and 77% more likely to be re-arrested.

We have also recognized that juvenile involvement with the criminal justice system stems, at least in part, from the fact that a young person’s brain is underdeveloped relative to that of an adult.  A series of United States Supreme Court decisions delivered over the last few years found that this leads young offenders to make poor decisions that result in criminal conduct.  It also prevents juveniles from fully appreciating the consequences of their conduct.

None of this is new.  In fact, we have known about all of these facts and issues for some time.  However, a new approach to dealing with juvenile crime, as well as kids who are at risk for becoming criminally involved, has already shown considerable promise. Continue reading ›

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The United States Supreme Court decided Carpenter vs. United States on June 22, 2018.  This is a major Fourth Amendment decision which requires law enforcement to obtain a warrant to get cell phone service provider records that can show a user’s movements.

The broad facts of the case are not complicated.  The police arrested four men in connection with a series of armed robberies in April, 2011. One of the men confessed and gave his cell phone number and the numbers of the other actors to law enforcement. This information was used to apply for court orders to obtain “transactional records” for each phone number.  The applications were granted under the Stored Communications Act, which provides that the government may require the disclosure of certain telecommunications records when “specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The transactional records included the dates and times of calls, and the approximate location where calls were made based on the user’s relative location to cell towers.  Such material is referred to as “cell site location information” or  “CSLI”.

Based on the CSLI, the government charged Carpenter with, among other offenses, Hobbs Act robberies (e.g., robberies that affect interstate commerce).  Carpenter moved to suppress the CSLI evidence on Fourth Amendment grounds, asserting that a warrant was required to obtain the records.  The district court denied Carpenter’s motion, and the Sixth Circuit affirmed.

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What is drug addiction?  How is it to be defined?  Is it some sort of disease, or just another form of illegal conduct?  Commonwealth v. Eldred, a case now before the Massachusetts Supreme Judicial Court, may soon provide guidance on these issues.  This case is important for any criminal attorney who represents addicts, particularly those who are placed on probation and then violate the terms and conditions of their supervision with, as frequently happens, a positive urine screen.  It is therefore worth a comment, even though it is from another jurisdiction.

We have all been down this road many times.  A client has a relatively low-level drug charge, which is typically the latest in a series of minor drug offenses or other petty offenses geared toward obtaining money to buy drugs.  The client’s criminal history and behavior are consistent with addiction.  They plead guilty and are placed on probation (or, in New Jersey, accepted into drug court, which is a form of probation).  One of the terms or conditions of their probation is that they remain drug-free.  In fact, this is always a standard term of probation in these cases.  The client subsequently reports to their probation officer and are asked to, among other things, provide a urine sample.  The sample tests positive and a violation is filed, with the result that the client is now facing the possibility of prison time.

Julie Eldred, a defendant with a relatively long drug history, was sentenced to probation for stealing jewelry to obtain money to purchase narcotics.  Her first urine test – taken only days after her probationary term began – was positive, and she was briefly jailed as a penalty.  In Ms. Eldred’s case, the Massachusetts Supreme Judicial Court will determine whether Ms. Eldred’s relapse warranted the imposition of a criminal sanction.  In doing do, the Court will opine on whether addiction is a mental disease that inhibits the addict’s ability to avoid using illegal substances, or some other kind of condition that will respond simply and directly to rewards and punishments. Continue reading ›

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Legislation governing the ownership and use of firearms, and the operation of gun shops, typically originates on the federal and/or state level.  As any New Jersey gun owner knows, our State already has some of the most restrictive gun laws in the country.  Certain cities and towns in different states including New Jersey are, however, apparently attempting to take action on the municipal level by implementing local ordinances that sharply restrict the operation of gun shops in their areas.

Officials in New Jersey who are purportedly fed up with what they perceive as insufficient federal or state action on gun control are using local-level policy rarely used to regulate gun dealers by adopting local zoning regulations that effectively ban gun shops from their municipalities.  Piscataway, a suburb of New Brunswick, does not have a single licensed gun dealer, and almost certainly will not at anytime in the near future. A Town Council resolution adopted on June 14 of this year is, in essence, designed to guarantee that a gun dealer cannot open in that town. The resolution bans gun stores from opening within 1,000 feet of schools, parks, health care facilities, and other locations that are viewed as sensitive. While the new zoning law does not explicitly forbid gun stores from opening in the town, it makes dealers subject to conditions that cannot be satisfied from any location in the municipality.

This is the first such ordinance in New Jersey, and one of several that have appeared in different municipalities all across the country. There are 24 municipalities in California with such location restrictions, and another two in New York. “There’s a growing concern about gun violence and the federal government’s inability to do anything comprehensive,” said Steven Cahn, the council member who drafted the ordinance. “The point is to demonstrate that as local officials, we’re not helpless. We can use our authority. Hopefully, other communities will do something similar.”

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The New Jersey Supreme Court recently approved a warrantless search of a vehicle’s glove box for registration and related documentation.  In doing so, the Court set parameters for when such a search will be constitutionally valid.

Defendant’s truck ran a traffic control and almost hit a police car.  The officer activated his lights and sirens and pursued the truck.  Defendant did not stop, but continued driving erratically.  The officer checked the vehicle, which was a rental that was not reported stolen.  Defendant subsequently turned into a gas station and stopped.  The officer pulled in behind the truck, while a back-up vehicle pulled in up front.  The officer then repeatedly ordered the defendant to show his hands, but the defendant did not respond.  The officer opened the vehicle’s door and ordered the defendant to get out.  Defendant left the vehicle, leaned against it, placed his hands in his pockets, and asked why he was pulled over.  The officer directed the defendant to show his hands, and he complied slowly.  He was then patted down for weapons.  He produced his driver’s license when asked for identification.  He was then asked for a vehicle registration and proof of insurance, but did not respond.  When asked a second time, he shrugged his shoulders.  He did not make any gestures that would indicate that the requested documents were on his person or in the truck.  When asked if he owned the truck or had any paperwork for it, he again failed to respond.  The officer then approached the passenger door, opened it, and looked in the glove box which was believed to be the most common place for keeping such papers.  He found nothing in the glove box, but discovered a handgun on the floorboard.

The motion judge denied a defense motion to suppress, finding that the officer was credible and had the right to search for the documentation in the place where it is typically kept.  The court also found that the discovery of the handgun fell within the plain view exception to the warrant requirement.  The defendant was convicted of weapons offenses at trial, but the Appellate Division reversed, finding that the warrantless search of the truck violated both the federal and state constitutions. Continue reading ›

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A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading ›

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An inventory search is a narrow exception to the Fourth Amendment warrant requirement.  This search occurs after a defendant is arrest, but before incarceration.  Briefly, the police are allowed to search the defendant/arrestee without a warrant and inventory the property in their possession.  The goals of this search are to protect the defendant’s property while s/he is being held; to protect law enforcement from false property claims; and to safeguard the police from danger.  These searches are administrative in nature, and frequently do not receive significant attention.  In State v. Hummel, the New Jersey Supreme Court recently provided guidance on what qualifies as a proper inventory search.

Thomas Corbin was killed on December 5, 2010.  Two days later, law enforcement informed Lori Hummel that they wanted to take her to a police station for two outstanding traffic-related bench warrants.  She was then taken to the Gloucester County Prosecutor’s Office, where she was met by several detectives and placed in an interrogation room.  She had her purse on the table in front of her.  Detectives entered the room to begin questioning her, and sat down at the table without frisking her or removing her purse.  Soon after questioning started, she reached into her purse to get her cell phone.  She checked the time, and told the detectives that she had to pick up her daughter by a certain time.  The detectives did not comment on that but instead asked her to be sworn in, and then questioned her without first advising her of her Miranda rights.  When asked about her cell phone, she began looking through her purse for the receipt from its purchase.  The detectives continued questioning her about her relationship with Corbin.

The detectives then left the room.  After returning her possessions to her purse, she left the room and asked the detectives if she could leave to get her daughter.  They did not allow her to leave and she asked if she was under arrest.  One of the detectives said “technically” because of the traffic warrants, and that they still had questions for her.  She indicated that she thought she should get an attorney.  After questioning her about her decision to obtain counsel, the detectives left the room.  One of the detectives then came back in, cuffed her leg to a bar on the floor and told her she had an outstanding traffic warrant.  She asked repeatedly if she could call her lawyer.  The detective who cuffed her took her purse from the table, and the defendant objected.  Another detective then told her she was in custody.  As the detective with the purse left the room, the defendant said “Hopefully that $500 ain’t missing out of there.”   Continue reading ›

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