Monthly Archive for August, 2011Page 2 of 3

Second Chance for Juvenile Lifers in California

As it stands now, California law allows minors as young as 14 years old to be sentenced to life in prison, for certain crimes. Currently, the United States is one of the only countries in the developed world that still has life imprisonment available as a punishment for juvenile offenders. Most other countries recognize that rehabilitating a juvenile criminal has a far better chance of success than rehabilitating a hardened, adult criminal, and that attempting to do so is a worthy investment.

If some California legislatures get their way, the situation in that state might soon change. The bill, currently headed for a vote in the California assembly, would give some juvenile lifers in California a chance at being released. This comes on the heels of a Supreme Court decision, holding that juvenile defendants cannot be sentenced to life without parole for crimes other than murder.

If passed, offenders who were juveniles when they committed the crimes for which they were sentenced to life must be made eligible for parole after they have served 15 years of their sentence. It does not require that parole be granted. It essentially eliminates life without the opportunity for parole for juvenile offenders in California. Just because a court is required to re-examine sentences of juvenile offenders after they’ve served 15 years, doesn’t mean the court has to order the prisoner’s release, if it determines that they have not been reformed and are still a threat to society.

In recent years, the Supreme Court (and, I believe, America in general) has expressed a desire to reduce the number of crimes for which the death penalty can be imposed. It started small – with the Supreme Court ruling that a state can’t impose the death penalty for the rape of an adult which does not result in the victim’s death, leaving open the question of whether or not the death penalty is a constitutional punishment for the rape of a child. In the mid-2000s, the Supreme Court ruled that the mentally disabled cannot be executed, or can anyone be executed if they were under the age of 18 at the time the crime was committed. Most recently, the Court ruled that the death penalty cannot be imposed for the rape of a child when the victim does not die, essentially eliminating the death penalty for all crimes except murder (and possibly treason).

I generally support this trend of narrowing the use of the death penalty. Now that the use of the death penalty in the United States is as limited as it’s going to be for the foreseeable future, many reformers are turning their attention on life sentences without the possibility of parole. As mentioned earlier, the Supreme Court, in the 2010 case of Graham v. Florida took a very small step in limiting the imposition of this sentence, holding that it cannot be imposed on minors for crimes other than murder.

The Sentencing Law and Policy Blog recently examined the question of whether or not life sentences should be eliminated for juvenile offenders altogether, pointing out that attempts at the lower courts to extend the Graham holding to all juvenile offenders, even those convicted of murder.

A compelling case can be made for this. Recent discoveries in neuroscience suggest that brain development is not complete well into adolescence, suggesting that most people under 18 have reduced capacity for impulse control, critical thinking, and planning.

Now, obviously, anyone who deliberately takes the life of another needs to be put away for a long time. However, the death penalty for juvenile offenders is gone, and it’s almost certainly not coming back. This leaves states with the alternative of sentencing them to life without parole, which is a costly and (arguably) unnecessary endeavor. Wouldn’t it make more sense, rather than feeding, clothing, and sheltering a juvenile offender who might live for another 60+ years, to try and rehabilitate them, and turn them into a productive member of society who does not spend their life as a public charge?

While the American prison system talks a good game about rehabilitation, it is still largely built on a model that emphasized punishment and permanent separation from society.

Perhaps forcing states to give all juvenile offenders an opportunity to seek parole would prompt them to get serious about prison reform, and really focus their attention on rehabilitating juvenile offenders, rather than filing them away forever. After all, if all juvenile offenders have a serious chance of being released, wouldn’t a state rather release a rehabilitated adult who has a reasonable chance at re-integrating into society, or a hardened criminal? The answer seems pretty obvious to me.

While advocates for crime victims are understandably upset at this California proposal, as well as any suggestion of early release for convicted criminals, it’s important to remember that nobody is suggesting that all juvenile offenders should be guaranteed a release at some point. These proposals would simply require that, at some point, they be given an opportunity to prove to a court that they’ve been rehabilitated, and should be release. If there is not enough evidence to support their assertion, the court could, and should, deny their request.

A blog post, written by the relative of the victim of a violent crime committed by a juvenile, agrees with the need for juvenile sentencing reform, arguing that locking up a child and giving them no chance to become rehabilitated is a waste of a life, and does not provide justice to the victim, the victim’s family, or the offender.

I’m sure there are some offenders, juvenile and otherwise, who simply cannot be rehabilitated, and need to be removed from society, for the safety of everyone else. This proposal would allow them to remain in prison indefinitely, while giving a second chance to those who can prove they deserve it.

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Does the Second Amendment Protect a Right to Carry Guns Outside The Home?

In a move that provided a great excuse for authors of constitutional law textbooks to come out with a new edition (as if they needed one), the Supreme Court ruled a couple years ago that the Second Amendment to the Constitution confers an individual right to bear arms, ruling that laws which prohibit or severely restrict the possession of handguns in private residences are unconstitutional. Last year, the Supreme Court ruled that this right is incorporated against the states by the 14th Amendment, so the right applies nationwide (not just on federal property) and restricts state governments along with the federal government.

Both of those cases, however, left many, many questions unanswered. While the court in both cases gave a few guidelines on what types of restrictions on gun ownership and possession are constitutionally-permissible (for example, states can ban gun ownership by convicted felons, they can require background checks and registration, they can ban guns from government buildings, etc.). However, the court left many gaps which are presumably to be filled in subsequent cases, as the issues arise.

firearm supreme courtThe Supreme Court is now being given its first opportunity to answer one of the biggest unanswered questions it left in Heller and McDonald (the two cases mentioned earlier): does their ruling extend to the right to carry concealed weapons outside the home (in this case, in a car on a public highway)?

Many states already allow residents to carry a concealed weapon, with varying restrictions. Some states, known as “shall-issue” jurisdictions, will grant a license to carry a concealed weapon to anybody who requests one, unless there is a compelling reason not to (they are a convicted felon, under the legal age of majority, etc.). Other states, known as “may-issue” jurisdictions, allow people to apply for concealed-carry licenses, but will only grant them if the applicant shows that they have a very good reason for needing to carry a gun with them.

And in a few states, like Arizona, you can legally carry a concealed firearm without even having to apply for a permit.

Quite a few states, however, do not issue concealed-carry permits, and have altogether banned the carrying of concealed weapons outside the home.

So far, lower courts have consistently ruled that the Second Amendment, when read along with the Supreme Court’s recent opinions, does not confer a right to carry concealed weapons outside the home. However, before McDonald and Heller, lower courts were ruling, pretty consistently, that the Second Amendment doesn’t confer an individual right to keep guns in the home, and the Supreme Court overruled them on that point.

So, if the Supreme Court ends up granting cert, there’s a real chance that it could further extend the protections afforded by the Second Amendment. While there are federal laws that are meant to make it easier for people to transport lawful, registered firearms across state lines without running afoul of state laws (known as “peaceable journey” laws), many states have laws on the books that place severe restrictions on carrying guns outside the home, even if they’re in the trunk of a car where neither the driver nor any passengers have immediate access to them.

While I’m not sure how the Supreme Court should rule in this case, if it even takes it, it does seem that if it did find a limited right to carry a gun in one’s car, establishing a constitutional baseline, it would make transporting guns (for lawful purposes) across state lines much easier, and create far less hassle and uncertainty for law-abiding gun owners.

On the other hand, there is no question that guns, in the wrong hands, are dangerous. And while both sides of the gun control debate can cite volumes of studies showing that increased gun ownership increases or decreases violent crime (proving that the issue of gun control is probably far more complicated than either side of the debate makes it out to be), there are obvious concerns raised by the recognition of a constitutional right to carry guns in automobiles on public highways.

We all know that “road rage” is a problem, and it’s not hard to imagine somebody snapping and firing shots at other motorists when they perceive that they’ve been slighted. Obviously, this would not be a common occurrence, but it’s hard to argue that more guns on the road wouldn’t make this more common.

Also, the presence of a gun, even if it’s legal, in a car could trigger a misunderstanding with a police officer, possibly leading to an officer-involved shooting.

On the other hand, I recognize that people have a right to defend themselves, and that this right is relevant outside the home, as well as inside. I don’t pretend to have a perfect solution to the question of gun control, and I don’t expect the Supreme Court to have it, either. However, I’ve argued before that having a clear rule is, in many ways, more important than what the rule says. Legal uncertainty and ambiguity can be more paralyzing than clear prohibitions on certain types of conduct.

For example, in the U.S., cars drive on the right side of the road. In many other countries, they drive on the left side. One arrangement is no better than the other. What’s important is that a rule exists in the first place, to prevent head-on collisions.

Similarly, having a uniform, nationwide rule on the carrying of guns in private autos would also be helpful, reducing legal confusion.

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Planet Sushi Gets Sued Over Semen Allegedly Found in the “Special Sauce”

This story is probably the best example of “fast food gone wrong.”  A girl orders some sushi, her favorite food, from Planet Sushi one night and discovers there is semen in the special sauce.  I am cringing as I type this.  If you were this woman, what would you do next?  Most people would take the restaurant to court, and that is exactly what this young woman has done.

As a result of this incident, the woman claims to have suffered physiological and psychological injuries, including anxiety and depression.  It seems that the case has gone through the discovery stage, where the young woman has been deposed.  The restaurant is asking the court to dismiss this lawsuit because the evidence (semen) has been spoiled.

In general a motion to dismiss is requesting the court to dismiss the suit because there are no disputed facts.  In this written motion, a lawyer is then to give some evidentiary basis as to why there is no disputed fact.  Here, Planet Sushi is trying to dismiss this suit based off of the spoiled evidence i.e. the lack of the sauce sample with the bodily fluid in present possession.

The court has denied Planet Sushi’s motion, and the suit is to go on.  Now, the young girl is claiming that she suffered psychological and physiological distress per Planet Sushi’s special sauce.  To prove such a claim, the young lady will need to show that she suffered in some manner.  As part of her suffering, she claims that she has had stomach aches, anxiety attacks, and cannot eat her favorite food anymore.  It is likely that the complaint lists more specific injuries, alongside an order for a monetary amount to compensate her for her suffering.

Planet Sushi may try to get out of the suit by blaming the employee whose body fluid ended up in the special sauce, and stating that the employee is only liable and should compensate the young woman.  However, the law recognizes that employers can be liable for an employee’s act if the act was done within the scope of the employment.  So, if the worker whose body fluid ended up in the sauce was working at the time of the fluid transfer, carrying out his occupational responsibilities, then Planet Sushi will have to pay for the worker’s action.

A claim that is not listed here that the young woman may be able to recover from is negligence.  The young woman can claim that Planet Sushi had a duty to make sure the food served was not contaminated with bodily fluid, that Planet Sushi did not carry out this duty, that Planet Sushi’s negligence to carry out this duty caused her harm, and that she suffered due to this negligence.  On a negligence count, the young woman would likely be able to cover a significant monetary amount.

Is it smart for Planet Sushi to have this suit carry on?  Definitely not.  Planet Sushi is a chain, and they have already suffered a great deal of negative publicity.  I am sure that their sales have been adversely affected.  After all, who waits in line to chow down some sushi with semen on the side?  Therefore, the smarter thing to do would be for Planet Sushi to settle.  In other words, Planet Sushi should agree to pay the young woman a certain amount in order to settle the case, and not have it go to trial.  In fact, I am surprised that they have not already initiated settlement talks.

Either way, may this story be a lesson to all.  First off, do not trust any type of restaurant condiment labeled “special.”  Be skeptical and inspect it!  Secondly, keep all evidence in your possession.  It is important and will play a vital role in litigation.

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Bankruptcy Filings Up in 2010

In one of many signs that the Great Recession has ended in little more than name, a report just released by the federal government showed that new bankruptcy filings in 2010 increased by 8 percent from 2009. However, this was a much smaller increase than the 20 percent jump we saw from 2008 to 2009. As with many economic indicators, the “improvement,” boils down to saying “things are still getting worse, they’re just not getting worse as fast as they used to be.”

While this may be good news for bankruptcy lawyers, it is probably not very good news for the broader economy. After all, bankruptcy is generally used as a last resort when a person’s debts become unmanageable, sometimes because of irresponsible use of credit, but more often as a result of a sudden change in one’s financial situation, such as loss of a job, or sudden medical expenses.

bankrupt manSadly, it seems that Americans are facing these calamities more often than ever in recent memory, when they are least prepared to deal with them. With wages failing to keep up with inflation, and prices of many important products and services, ranging from food to higher education, growing at rates that actually exceed the overall inflation rate, you have a recipe for financial hardship that cuts across a wide swath of American society.

Bankruptcy is generally (and accurately) viewed as an emergency safety valve, getting rid of debt that is growing faster than it can be paid down, averting financial catastrophe for an individual or a family.

Bankruptcy allows a person to discharge some or all of their debts, doing away with the legal obligation to pay them. Other forms of bankruptcy can reorganize a person’s debts into a single monthly payment that’s designed to be more manageable than their current situation.

Of course, like any emergency measure, bankruptcy is not to be employed lightly, and one should definitely not rack up a large amount of debt, relying on the idea that they’ll be able to wipe it out by going bankrupt. Bankruptcy definitely has its costs.

For instance, filing for bankruptcy will virtually ruin your credit rating for years to come, making it very difficult to get credit at a reasonable interest rate. This means that buying a home or a car for a reasonable price will not be easy for the foreseeable future.

Furthermore, bankruptcy lawyers charge for their services, and their fees can often run in the thousands of dollars, even for relatively “simple” cases filed on behalf of individuals or married couples (as opposed to businesses). Obviously, you should only consider filing for bankruptcy if the debt that you expect to be discharged is far greater than the fee charged by your bankruptcy attorney.

However, in some cases, filing for bankruptcy can be a rational decision. And recent LegalMatch case data from the last several months bears this out. People are seeking legal advice on bankruptcy in very large numbers, and, in many cases, they are seeking to discharge credit card debt and medical expenses, which are usually the “best” types of debts to have when filing for bankruptcy, since they’re unsecured and dischargeable.

More disturbingly, however, a fairly large number of people are seeking legal advice regarding bankruptcy and student loans. Unfortunately for them, it’s virtually impossible to discharge student loans in bankruptcy. This makes student loans a particularly risky form of debt to take on. It also illustrates that, given the skyrocketing costs of higher education, an increasing number of people apparently don’t believe they’ve gotten their money’s worth out of college or graduate school.

In the last few years, there has been talk that higher education, and the debt that it generates, is a bubble that’s waiting to burst. After all, a huge number of young adults, fresh out of college or graduate school, are entering the workforce every year. Their numbers far exceed the number of jobs created each year which require the level of education they’ve attained.

It should come as no surprise, then, that many recent college graduates, sitting under a pile of debt, looking at lukewarm job prospects, might view their college education as a waste of time and money, and seek to at least recoup the financial loss. But, as I mentioned earlier, the current bankruptcy laws make this nearly impossible.

I don’t pretend to have a solution to this. And maybe the fact that the increase in bankruptcy filings is at least slowing down (even though they’re still increasing) is more of a silver lining than I’m making it out to be. However, the numbers certainly paint an interesting picture: the economy is still bad, and it has spared virtually nobody. Well-educated professionals seem to be in just as much danger of losing their job as a factory worker or janitor.

This likely means that bankruptcy rates are going to continue to be high for the foreseeable future.

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Tweet From the Juror Box, Go to Jail

I’ve blogged plenty of times before about jurors, and other participants in the legal system, getting themselves into trouble by using social networking sites at inappropriate times, in inappropriate ways. Usually, these cases involve jurors or judges expressing bias in a case, or lawyers absentmindedly publishing confidential information on the Internet.

There tends to be a common theme in discussions of this issue: the legal system has trouble keeping up with technology. But, it looks like California is going to become one of the first states to make a serious effort to close this gap, by clarifying the rules governing technology and courtroom decorum, and that there are still places in the modern world where tweeting, texting, and posting on Facebook are simply not acceptable. And, more importantly, reminding people that some information still shouldn’t be made public, no matter how easy it is to do so.

And this proposed law is not messing around: it requires jail time, and requires judges to explicitly explain to jurors that communicating to the outside world about the case, or doing any independent research on the case, is prohibited, and imposes jail time for jurors who violate these rules.

I think it’s very unfortunate that a rule like this is necessary, but it’s necessary, nonetheless.

The legal system in the United States still relies very heavily on juries to make decisions, more than perhaps any other country. Even in the UK, where our jury system originated, the use of juries has been reduced significantly over the centuries. So, because juries are such an integral part of the American legal system, maintaining the integrity of juries, and individual jurors, is absolutely essential.

Many people are incredibly cavalier about their use of social networking services like Twitter and Facebook. Some people share every aspect of their lives online. If that’s how you want to live, nobody should stop you. However, when you are serving on a jury, somebody’s life may, quite literally, be in your hands. While you have the right to share every aspect of your life on line, if you want to, you don’t have the right to toy with the life of another person.

Even if posting information about a case doesn’t directly prejudice a juror’s decision, it can harm the image of the jury system in the eyes of the public. And this isn’t just vanity – the jury system’s effectiveness is largely dependent on the public’s acceptance of its legitimacy.

And when jurors are tweeting from the jury box, or talking about deliberations on Facebook, anyone who reads these postings would seriously question that juror’s impartiality. In one case, a juror even tweeted, before the trial was over, that she was looking forward to convicting the defendant.

Thankfully, these occurrences are relatively rare. The purpose of this new law seems to be to ensure that it stays that way.

Jail time may seem harsh, but as long as the sentences are not excessive (certainly they should be no more than a year, and probably significantly less than that), I think that this is just the deterrent that jurors need to take their responsibilities seriously. And because the law requires judges to clearly explain these new rules to jurors, as well as the consequences for breaking them, nobody who is convicted of violating the law will be able to claim ignorance (not that that’s an excuse, anyway).

While it’s usually pretty easy to determine if a juror has posted information about a trial online (where everyone can see it, and it’s usually attached to their name), what’s more difficult is stopping jurors from consulting outside sources during a trial, especially if it’s a high-profile trial.

When deciding on a verdict, jurors are only supposed to consider the evidence that’s presented to them by the lawyers for each side of the case, the testimony of witnesses that have been called, and the judge’s jury instructions. However, if a trial is being covered by the media, you can be sure that the airwaves (and the Internet) will be rife with news reporting about the trial and the events leading up to it, and, perhaps more dangerously (to a juror’s impartiality), constant speculation and debate. Since anyone with a cell phone that was made in the last 5 years or so can access the Internet at virtually any time, they have access to all of this outside information and speculation, which is virtually guaranteed to shape their views of the parties and witnesses, especially when the media delves into subjects irrelevant to the case at hand, like their personal lives.

I’m really not sure how we can prevent jurors from accessing outside information. The fact is, in this modern, interconnected world, if a juror wants to access outside commentary about the trial they’re sitting on, they can, and if they’re discreet, it’s unlikely that anybody will find out.

Hopefully, these rules, when explained to jurors, will deter such conduct, not because of the risk of getting caught, but because they will impress upon jurors the importance of the task at hand.

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