Archive for the 'Criminal Law' Category

Texas Prison Riot Is a Reminder That Prisoners Have Rights, Too

Around 2,000 inmates took over the Willacy County Correctional Center in Raymondville, Texas a little over a week ago. They caused so much damage to the facility during the riot that 2,800 prisoners must be transferred to another location. The prison was deemed uninhabitable after fires were started and the property was severely damaged.

texas prison riotInhumane Conditions Sparked the Revolt

The correctional center is one of 13 “Criminal Alien Requirement” prisons. These facilities are privately run and consist primarily of illegal immigrant offenders (note: majority non-violent). “CAR” prisons hold over 24,000, and 2,800 are housed at Willacy. Prisoners have to sleep in tent dormitories, and are so tightly packed together that their feet can touch the bunk next to them. The prison has been nicknamed “Tent City” among locals.

The conditions at Willacy are inhuman. The inmates are forced to not only live in tight quarters, but are subject to disgusting conditions. There has been raw sewage from overflowed toilets, an infestation of spiders, and a huge lack of medical attention paid to inmates. For example, if an inmate has a toothache, the only solution is an extraction. One inmate had hepatitis C and reported it, but two years later still did not receive treatment. Reports of guard-on-inmate sexual violence has been reported, as well as the use of excessive solitary confinement. Inmates have been thrown into solitary confinement for simply asking for food. After reading this, can anyone blame the inmates for feeling the need to revolt?

Prisoners’ Rights

Prisoners do not have the same constitutional rights as free citizens, but they are protected by the Constitution’s prohibition of cruel and unusual punishment. Inmates also have the right to due process, right to administrative appeals, and a right of access to the parole process. They are also protected against discrimination under The Equal Protection Clause of the 14th Amendment.

Federal prison officials have full discretion to control prisoners and the conditions of their confinement. State prisoners have zero rights to specific classifications under state law. Instead, the Federal Bureau of Prisons has the power to make all decisions regarding inmates and terms of their confinement.

Prisoners are turned into numbers instead of people when they enter the criminal justice system. Too many are subject to horrific conditions that no human should have to endure.

Marijuana Wars with Maraschino Cherries and D.C.’s Mayor

Washington D.C.’s decriminalization of marijuana went into effect last week, drawing the wrath of prominent Congress members. Rep. Jason Chaffetz reportedly said D.C.’s Mayor could “go to prison for this.” Federal law enforcement’s war against marijuana has been continuous since Congress passed the Controlled Substances Act in 1970. However, that war has often shattered lives, as Arthur Mondella’s tragic story reveals.

Maraschino CherriesWhile the District of Columbia was preparing to decriminalize marijuana, local police and federal agents were conducting a raid on Maraschino Cherries Factory in Brooklyn. Law enforcement claimed to have a warrant to search the factory for violations of environmental laws, but the raid’s true purpose was to search for marijuana. The factory owner, Arthur Mondella, had inherited the business from his father and grandfather. Initially Mondella cooperated with the police. Authorities eventually discovered a secret room concealed by a fake wall. Mondella immediately went to the bathroom.

His sister, obviously concerned, followed. Mondella asked her to “take care of my kids” and then Mondella shot himself. After Mondella’s suicide, police entered the hidden basement. Law enforcement found a 2,500 square foot marijuana farm underneath the cherry factory.

Maraschino Cherries Kingpin vs. Washington, D.C.’s Mayor

Although I drew comparisons between D.C. and Mondella, there are enormous differences. In D.C., the voters had approved a measure decriminalizing marijuana. If D.C. were a state rather than a federal district, Congress would not be as hostile. Mondella, on the other hand, was a private actor growing marijuana in knowing violation of the law. Mondella wasn’t trying to change the law, which would be legal; he was violating the law for, possibly, his own profit.

News coverage of the cherry factory conflict with each other. Most stories quote an unknown police officer claiming Mondella wouldn’t have done any jail time. However, some stories claim the officer wouldn’t have done time for spilling cherry syrup in the water while other stories quote the officer saying Mondella wouldn’t have done jail time for marijuana.

Although Mondella wouldn’t have gone to jail for cherry syrup, the idea that Mondella wouldn’t have gone to jail over marijuana is laughable. Mondella was concealing what looked like a multi-million dollar farm on his property. Federal prosecutors would have indicted Mondella as a drug kingpin and there is no doubt that Mondella would have served significant time. If Congress is threatening to lock up the mayor of D.C. for enforcing an initiative to decriminalize marijuana, imagine what the Justice Department would do to a man caught running an entire drug operation in his factory.

States across the country might be decriminalizing marijuana, but there’s no doubt that some federal actors still want to win the war on marijuana.

What You Should Know about StingRay Cell Phone Surveillance

What Is the StingRay Tapping Device?

A new device called StingRay Tapping Device enables the police and the government to track cell phone communications. The StringRay is a box that electronically connects to local cell phone towers. It then simulates the cell phone tower, and in turn prompts signals from cell phones attached to the tower.

cell phone tower stingray trackingIf the police can connect to hundreds of citizen’s phones, what stops them from tapping into the general population’s phones?

StingRay’s Use by Police

From 2007-2014 in Tallahassee, FL, the city police used the StingRay in more than 250 investigations. This means they used it in about 40 investigations per year, in a city where the population is only 186,000. Even if the police are using the StingRay just to find criminals, are they taking advantage of this power and relying on it too much?

In one of these cases, a drug deal gone wrong lead the police to use the StingRay to track down the location of the suspect. Tadrae McKenzie and a couple of friends robbed a dealer of weed and money in a parking lot and fled the scene. Police found his whereabouts about a week later and he was arrested.

During the trial, McKenzie’s defense team became suspicious that a secret surveillance tool was used because there was no evidence that would lead the police straight to McKenzie’s home. The judge then ordered the police to show the device. They did in fact use a StingRay.

The FBI has declared there is no mandate for court warrants to be used when connecting a StingRay to a cell phone tower. They decided the device does not violate our Fourth Amendment and it is lawful for the police to track communications of suspects. The Obama Administration stands by this. The administration has declared that citizens have no privacy in public areas.

Senator Questions the Use of StringRay

Recently, Florida Senator Bill Nelson gave a speech to the Senate about the threat that StingRay poses to consumers’ privacy. “It’s time for us to stand up for the individual citizen of this country and their right to privacy,” said Nelson. The Senator also send a letter to FCC Chairman Tom Wheeler, requesting certain explanations regarding the nature of the company behind StringRay.

Can the Government Create a Fake Facebook Page Using Your Identity?

In 2010, a New York woman named Sondra Arquiett learned that her identity had been stolen. Someone had created a false Facebook page with her name that included racy photos of her. The page was complete with “friends”, comments supposedly made by her, and private messages. Arquiett reported the page and soon found out that U.S. Drug Enforcement Administration Special Agent Timothy Sinnigen was responsible for stealing her identity.

fake facebook pageArquiett was arrested not long before the page was set up for involvement in a drug ring. The judge sentenced her to five years’ probation, which included six months of weekend incarceration and six months home detention. While awaiting trial, Sinnigen used Arquiett’s seized cell phone to set up the false online profile without her knowledge.

Arquiett sued Sinnigen in federal district court in Syracuse, New York for violation of privacy and placing her in danger. The government defended the agent by stating Arquiett “implicitly consented by granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations”.

Eventually, without taking responsibility, the Justice Department settled on $134,000 to be rewarded to Arquiett.

Was This Legal?

According to Facebook’s “Community Standards”, “Claiming to be another person…violates Facebook’s terms”. A spokesman for Facebook says law enforcement is not exempt from the site’s policies. But, this is just a policy, not a law. Are there any laws that apply?

In 1984, New York State enacted the Personal Privacy Protection Law. This law prohibits an agency (like the DEA) from collecting personal information (such as Arquiett’s photos) unless it is “relevant and necessary” to an agent’s goal that must be accomplished by law. Also, when an agency requests personal information from an individual (which the DEA failed to do), the agency must disclose how and why the information is being used (also failed in this aspect).

Facebook has since taken down the fake profile of Arquiett. Even though the Justice Department refused any responsibility for violating privacy laws, at least Arquiett received a settlement and she has since had her probation terminated.

A Teacher Was Raped and the State’s Response Is Unacceptable

A female teacher was raped in an Eyman Prison in Florence, Arizona on January 30 2014. She was administering a pre-GED exam to seven convicted sex-offenders and mentally handicapped prisoners. The convicts arrived unescorted, and the classroom was in a remote location without security cameras or in the view of security guards. After the test, all inmates left with the exception of 21 year old Jacob Harvey. Harvey was convicted of a day-time home invasion where he brutally raped and beat a woman while her toddler watched. He was sentenced to 30 years in March 2013.

Jacob HarveyHow can an unarmed woman who is not trained in self-defense protect herself when in a classroom of convicted sex offenders? Should the state be held liable for her injuries? After all, she is an employee, isn’t it their job to protect her? According to Laurie Roberts of The Arizona Republic, the attorney general’s reasoning was essentially “The woman knew she was in a prison, so what did she expect?”

The only communication device she was given was a radio to reach prison guards if an incident occurred. When the inmate attacked the teacher, she tried using the radio, but it was tuned to a channel the guards didn’t even use. She also tried screaming, as Harvey threw her to the ground and stabbed her with pencils, choking her and slamming her head into the floor all at the same time. No guard came to help. The teacher has accused the state of negligence, false imprisonment, and violation of her civil rights.

The state of Arizona has requested that the teacher’s negligence lawsuit be thrown out. But, U.S. District Judge Susan R. Bolton stated that the suit “contains sufficient allegations” and is letting the civil suit go forward. She stated the teacher “faced an unusually serious risk of harm” and the defendants “acted with deliberate indifference in failing to take steps to address that danger”.

The Attorney General’s Office stated the teacher “has attempted to recast absolutely routine prison events”. So an employee being raped by a prisoner is a routine prison event?

Scott Zwillinger, the teacher’s attorney, believes this is a classic case of victim-blaming. On top of physical injuries, he stated “the emotional part of this has tore my client’s life up” and it’s like we’re back in 1952 because “Absolutely, it’s blaming the victim”.

Who is at fault, is yet to be decided. The pretrial conference is set for February 23rd. To me, if an employee is subjected to physical harm with a clear lack of protection that is expected from a prison, the state is at fault and should pay the highest amount of restitution. Victim blaming is not the answer.