Tag Archive for 'due process'

You Can Be Prosecuted for a Fake Facebook Profile

Share on TwitterSubmit to StumbleUpon

I’ve spilled a lot of virtual ink about criminal charges arising from bad behavior on the Internet. Much of the time, these cases have involved conduct that should be criminalized, such as making threats or committing fraud. Essentially, these are things that have always been illegal in the “real” world, transferred onto the Internet, where they’re still illegal.

I’ve also written about crimes that can only be committed online, some of which clearly should be criminalized, such as breaking into computer systems to steal sensitive information. On the other hand, there have been several high-profile cases of criminal law being applied to online conduct in a way that seems to make little sense. For example, there have been cases of people being prosecuted for “unauthorized access” to a computer system for logging into their work computer after quitting or being fired, or setting up fake MySpace pages.

Last week brought another case of a person being prosecuted for setting up a fake online presence.

A woman set up a fake Facebook profile about her ex-boyfriend, and posted inflammatory statements under his name. She is now being prosecuted for identity theft.

Now, I’m not condoning this woman’s conduct. At the very least, I think she should be subject to civil liability for defamation and invasion of privacy. In this case, I’m pretty much on the fence about whether or not this type of conduct, deplorable as it may be, should expose a person to criminal charges.

On one hand, identity theft is a serious problem, and can ruin people’s lives. However, laws against identity theft are primarily meant to guard against the financial harm caused by fraudulent use of another’s identity. While it’s true that any identity theft can also damage its victim’s reputation, that doesn’t seem to be the main motivation for laws banning it. A couple states, including California and New York, do have laws specifically outlawing online impersonation. New Jersey, where this took place, does not.

So, could the state’s existing law against identity theft be stretched to cover the conduct at issue in this case? According to at least one judge, it can.

If New Jersey had a law specifically prohibiting online impersonation, this prosecution would probably be uncontroversial. But, as a matter of due process, I have a problem with prosecutors stretching criminal statutes to be applied to conduct that the actor may not have reasonably expected to be criminal in nature.

This is because due process of law requires that, among other things, that people have notice of what conduct is illegal. Obviously, if there were “secret” laws, it wouldn’t be fair to punish someone for breaking them, when they had no way of knowing that they existed in the first place.

The best way to mitigate the problem of extremely bad conduct which we haven’t thought to criminalize is, unfortunately, to simply learn from our mistakes. In this case, the proper response would be to lobby the state legislature to change the law, not to stretch existing law to accommodate it.

This is unfortunate because this approach generally requires that the first person to commit a bad act that we decide needs to be criminalized would have to go free, since criminal laws cannot be applied retroactively.

But, as I’ve said before, the price we pay for living in a free society with a fair criminal justice system is that some guilty people will go free.

Incoming search terms for the article:

Florida Considering Constitutionality of Harsh Drug Law

Share on TwitterSubmit to StumbleUpon

Back in 2002, Florida passed a law that makes finding a person criminally liable for a drug-related offense easier than just about any other state.

While every state prohibits possession and sale of certain drugs, an essential element of those crimes is “mens rea,” or “guilty mind.” Essentially, it means that to convict someone of virtually any crime, the prosecution most prove that the defendant acted with some type of criminal intent. In drug cases, this requires a showing that the defendant knew that the substance he possessed or sold was, in fact, an illegal drug. Note, this usually means they only need to know that they possessed a specific drug. It does not require that they know the drug was, in fact, illegal. So, if somebody believes, for whatever reason, that cocaine is legal, and happens to be in possession of cocaine (and knows that the substance in their possession is cocaine), they are criminally liable, despite the fact that they believed it was legal.

On the other hand, if the defendant possessed a drug, and reasonably believed that it was something else, they will not be liable. For example, suppose that cocaine is being smuggled into the country in boxes of baking soda. One of the boxes inadvertently finds its way onto a grocery store shelf. A customer at the store buys the box containing the cocaine, intending only to buy baking soda, and believing that that’s what the box contained, which is a perfectly reasonable assumption, under the circumstances.

If they were arrested for cocaine possession later on, they would probably not be held liable, assuming the never found out that the box contained cocaine.

Under this Florida law, however, the rules would be changed: anyone in possession of an illegal drug can be found guilty of drug possession, even if they did not know or believe that they were in possession of an illegal drug. So, the person who innocently buys a box of cocaine at the grocery store, thinking its baking soda, could theoretically be found guilty of cocaine possession, despite the fact that they had absolutely no intention of breaking the law. This effectively makes drug possession in Florida a strict liability crime.

This would be a radical change, and, as one might expect, it’s hardly without controversy. In fact, it’s so controversial that a Florida appellate court has asked the state’s supreme court to take up the case, to resolve the issue of the law’s constitutionality. This is something that rarely happens, as it’s usually the losing party in a lawsuit or appeal who asks a higher court to hear the case.

The key issue is whether or not the law violates a person’s right to due process of law. A person cannot be deprived of life, liberty, or property without due process. And one essential element of due process is that defendants have notice of the fact that the conduct they’re engaging in is illegal. Imagine of your state legislature passed a bill that prohibited, say, wearing blue shirts, but kept this law a secret – they didn’t tell anyone that the law had passed, and didn’t even publish it. Obviously, it would be incredibly unfair to punish a person for breaking this law when no member of the general public had any way of knowing that the law existed.

Here, we aren’t dealing with a secret law. But we are dealing with a law that can punish people who have no knowledge that they’re doing anything illegal, and no intent to break any laws. Most people would view this as incredibly unfair.

I would agree with them.

More importantly, however, I think that laws like this are symptomatic of how completely off-the-rails the “war on drugs” has gone, and how getting “tough on crime” has superseded any consideration of whether or not a law is actually good policy.

Personally, I think the best way to deal with drugs is not to punish the hypothetical baking soda buyer, but to actually evaluate our policies in a rational, objective manner, to see what has worked and what hasn’t. This might even require studying what (*gasp*) other countries have done to address their drug problems, and assessing their effectiveness, and the feasibility of implementing some of those ideas at home.

Unfortunately, the war on drugs seems to have become an entity unto itself. It exists primarily to perpetuate its own existence. The role of private, for-profit prisons in incarcerating drug offenders certainly isn’t helping the matter.

However, politicians seem to be engaging in the “sunk cost fallacy.” This is the belief that you can’t stop an unsuccessful project because you’ve already spent a huge amount of time and money on it, and quitting now would mean that it’s all been wasted. But here’s the thing: at some point, we’ll have to acknowledge that our current approach to the drug problem is untenable, and attempting to eradicate recreational drug use is futile. Continuing down this course will simply mean sinking more cost into an effort that is incredibly unlikely to succeed. Basically, if you’re going to fail, it’s best to fail quickly, so that you can move on to something that’s more likely to succeed. This is especially good advice with respect to the war on drugs. There’s no doubt that we need policies in place that address the drug problem, and minimize the negative effects of illegal drugs on society.

This might mean taking a less punitive approach to drug addicts, and instead treating them as people who suffer from an illness, and need medical help, as opposed to treating them as criminals in the same class as murderers. Unfortunately, I don’t expect this to happen anytime soon.

Incoming search terms for the article:

Red-Light Cameras Do Not Violate the Constitution

Share on TwitterSubmit to StumbleUpon

I came across an article discussing something that most people dread—that little camera above the traffic light that tickets you!  Apparently a dozen cities and nine states have banned traffic cameras for financial and political reasons.  Although these little devices successfully catch more speeders and produce more tickets, which in turn brings in more revenue, they are expensive.  With the economy being the way it is, it is hard for many states to spend money on such devices.  Further, a lot of voters just hate the device.

What is interesting is that opponents of these small cameras have used the United States Constitution to substantiate their point.  Opponents claim that these cameras violate due process rights and invade one’s privacy.

After the mention of the due process violation, the article goes on to state that opponents feel there is a violation of due process because the cameras “don’t capture images of those who actually are behind the wheel.”  I completely disagree with this statement.  I have gotten a ticket in the mail before because I was caught speeding by a camera.  As I opened the envelope and took out my ticket, the next page displayed a large picture of me in the car, driving.  I was actually shocked to see how focused and clear the picture was.  My face was clearly shown and pictured from a very close angle.  This is why I do not believe the claim that the cameras do not capture the image of the driver.  The close angle and clarity at which those cameras take pictures leave no room for any mistakes as to who the driver is.

Even if the picture was not the best, does this camera really infringe upon our due process rights?  A violation of one’s due process rights would be when a person was deprived of life, liberty or property without going through some sort of legal proceeding.  In our situation, when a person receives a citation, they have the opportunity to go to court and contest it.  A citation by a camera is no different than a citation personally given by a cop on the side of the road.  Both allow individuals the opportunity to have their day in court.  Therefore, I see no violation of due process rights even if the picture was not completely clear.

Additionally, these cameras do not invade one’s privacy.  Now, for an invasion to occur, a person first needs to be in a place where they can reasonably expect privacy.  When you are on the road in your car, you are in a public area.  Photos taken of people in public areas are not seen as intruding upon people’s privacy because people are out and about, not isolated in a private area.

Now, opponents may argue that one has a reasonable expectation of privacy in their own car.  Sure, I can see that point.  However, our individual car is on a public road.  Our individual car has windows where people can see into them.  Our individual car is amongst many other cars.  Overall, our individual car does not constitute a small private world of our own.  Rather, we are just beings in our car, which is on a public road amongst other cars.  There is no privacy on the road.  Therefore, the claim that these cameras violate people’s privacy is without merit.

Even though I am not a fan of these cameras because I have been a victim to them, I do think they are a great idea.  They instill fear in people because people can get caught speeding even if a cop car is not nearby.  Whenever people see these cameras, they tend to slow down.  Drivers who drive cautiously are less likely to get into accidents.  Overall, the roads become safer.  The other side to this is to just implement small measures, like making the time for the yellow light longer so people slow down and have ample time control their speed.  This can have an adverse effect.  With longer yellow lights, more people can attempt to rush though the light by increasing their speed.  This is very risk and likely to result in an increase in accidents.  Rather than people using the extra time to slow down and stop, they will likely speed up and try to beat the light, overall endangering the lives of those around them.

With so many other issues in our world, such as our rising unemployment rates or increase in home foreclosures, I say we leave the little camera alone and let it do its job.  We, as citizens, can the focus on more important issues.

Incoming search terms for the article:

New Gun Control Rulings and Constitutional Implications

Share on TwitterSubmit to StumbleUpon

“The great object is, that every man be armed… Every one who is able may have a gun.” -Patrick Henry

Whether you agree or not that Americans should have the right to bear arms, the founding fathers of the U.S. certainly thought so- the Second Amendment of the Constitution provides that the right to bear arms shall not be infringed upon.

Our modern Supreme Court seems to agree as well- recently the U.S. Supreme Court issued a ruling which extends the Constitutional right to bear arms to state and local gun control ordinances.

What this means is that states that historically have had stricter gun control laws will possibly have to slacken the scope of their gun laws in light of the expanded guarantee that private citizens can own guns.

For example, the city of Chicago is now wrestling with their gun control options.  Under the new ruling, the city’s current ban on handguns will likely be found unconstitutional since the right to bear arms now applies to state laws.  Citizens of Chicago, which currently has some of the strictest gun laws in the U.S., are outraged by the ruling, claiming that the ban on handguns has helped curbed violence in a major way.  The city’s mayor has already proposed new gun rules and registration procedures in anticipation that the current ban will be struck down.

Other states that will be affected by the new ruling are New York, California, and the District of Columbia, where guns are regulated quite heavily.

The case, McDonald v. City of Chicago (text of case here) is important not only for the arena of gun control laws, but also because of the way that the Supreme Court justices were generally able to extend federal constitutional rights to state governments.  If you recall, the Second Amendment, as part of the Bill of Rights, originally applies only to the federal and not state governments.  So how were the justices able to make the extension from federal to state?

Here the court had the option of choosing between two clauses that are found in the 14th Amendment of the Constitution.  First, they could allow states to “incorporate” the right to bear arms through the Due Process clause by proving that gun control laws restricted the due process rights of citizens.  Alternatively, under the Privileges and Immunities clause of the 14th amendment, the right to bear arms could be deemed one of the privileges that the states are prohibited from taking away.

Ultimately, the justices opted for the first choice and ruled that state restrictions on the right to bear arms may violate the Due Process clause.  This is important, as the due process clause largely deals with procedural issues.  It still remains to be decided whether the right to bear arms is a basic privilege that everyone is entitled to.  Only Justice Thomas in his highly praised concurrence made the argument that gun ownership is a basic privilege.

This is federalism (the division between federal and state governments) at its finest- the recent ruling questions the Supreme Court’s ability to apply general constitutional rights while at the same time addressing the specific needs of each state.  The McDonald case also leaves open the question of how each state is supposed to implement the new ruling.

The general gun control debate is one of the most explosive topics ever.  I particularly like the debate because aside from federalism concerns, it highlights what is known as political geography.  It is well-known that the left and right ends of the political spectrum tend to correspond respectively with urban and rural demographics.  Nowhere is this seen more clearly than with gun laws.

For example, gun violence in urban versus rural settings varies widely both in numbers and in their qualitative characteristics.  In rural areas, gun ownership is high but violence rates are lower.  Whereas in cities like Chicago, violence levels are high but gun ownership and registration is low (hence the Chicago handgun ban).  State gun laws tend to reflect these geographical differences.

As such, gun owners in a rural area would likely favor the Privileges and Immunities argument, as they tend to view long guns (rifles) as a necessary part of protecting their agricultural properties from intruders.  In contrast, urban areas are more associated with handguns as a means of protection from violent crime.  In that setting, a Due Process theory is more relevant, as cities such as Chicago attempt to institute procedures such as enforcing mandatory gun registration more strictly.

Thus the question of the rights to bear arms is not only about simply owning a gun, but rather for what purposes the gun will be used and whether or not it will be registered.

In my opinion one possible solution (or compromise maybe) is to allow citizens access to the many non-lethal weapons that are currently being developed by researchers (click here for a few high-caliber specimens).  Aside from propelling us into the science-fiction age, non-lethal weapons may be a viable option because they allow one to protect their property and safety interests while preserving the intruder’s life.

For the moment, several states’ lawmakers are scrambling to strike a balance between preventing gun violence and honoring peoples’ now expanded right to bear arms.  And one thing is a sure shot: more litigation is sure to follow the new gun control ruling.  Constitutional lawyers, armed with the new ruling, are already loading bullets into their chambers and aiming their legal weapons at states with questionable gun restriction laws.

Incoming search terms for the article:

Preliminary Thoughts on the Arizona Immigration Law

Share on TwitterSubmit to StumbleUpon

If you’ve been watching, reading, or listening to any news reports over the last week, you probably know that the Arizona legislature has passed, and the Governor has signed, a law designed to crack down on illegal immigration. Reactions have been varied, to say the least. Many conservative commentators have praised the law, with many libertarians and liberals decrying it. The government of Mexico has gone so far as to issue a travel advisory to its citizens in Arizona. Why all the controversy?

Essentially, the law makes it a crime to be an illegal immigrant in Arizona, separate from the federal crime that already exists to prohibit the same conduct. One of the most controversial provisions in the law is that, once a police officer suspects a person of being an illegal immigrant, they will have to present proof that they are in the United States legally.

Obviously, this provision raises some serious constitutional and moral questions. To many, it appears to be a license for racial profiling, and treats some people as guilty until proven innocent. According to many others, it’s just a minor inconvenience, and anyone who is in the U.S. legally will have nothing to fear.

We can bet that many, many people who are detained under this law will challenge its constitutionality, likely on due process and equal protection grounds, especially if, some time after the law is put into effect, the claimants will be able to produce evidence that it has led to an increase in racial profiling. The law might also face another court challenge, on completely different grounds: a challenge from the U.S. government, arguing that the state of Arizona is attempting to play in the federal government’s constitutionally-guaranteed domain.

Under the U.S. Constitution, Congress has essentially plenary (unlimited) power when it comes to immigration law. And under the constitution, federal laws (assuming they’re constitutional) are the supreme law of the land, and override any and all conflicting state laws. Courts have, in the past, held that only the federal government has the power to determine that somebody is in the country illegally. Of course, supporters of the law will likely argue that it simply fills a gap in federal law, created by federal inaction in enforcing immigration law. Furthermore, the law doesn’t actually create any new requirements for legal residence in Arizona beyond the requirements for being in the U.S. legally; it essentially criminalizes under state law the exact same conduct which was already illegal under federal law.

This argument makes some sense, but it doesn’t change the fact that anyone charged under the law will be tried in Arizona court, which will necessarily require a state court to determine if a person is in the U.S. legally or illegally.

Furthermore, the federal government could also argue that the state of Arizona, in enacting this law, is attempting to make foreign policy, which is also the exclusive province of the federal government.

It’s difficult to tell if this law will pass constitutional muster if it is challenged on federalism grounds. However, depending on how judiciously the law is enforced, it could quite easily be overturned on due process or equal protection grounds, at least as applied in certain situations.

The fact that there are so many obvious routes to challenge this law certainly increases the chances that it will be found unconstitutional, at least in part.

Furthermore, many organizations are calling for boycotts of many of Arizona’s key industries. It’s entirely possible that this law was passed with (at least in part) the intention of drawing national attention to the issue of illegal immigration. If that’s the case, it has been a resounding success, and hasn’t even gone into effect.

Now, the issue of illegal immigration is very serious. I personally believe the U.S. immigration system is kind of a mess. I also believe that, in general, it should be easier for people to come to this country legally. After all, Americans should be proud that so many people from around the world want to come here.

On the other hand, I also believe people should obey the law. Coming into the U.S. illegally is hardly the worst crime a person can commit, but it nonetheless puts a strain on state and federal law enforcement agencies, and cheapens the efforts of immigrants who came here legally, and followed the rules (even if I believe those rules are in need of a drastic overhaul to make them simpler and less restrictive).

The issue of immigration certainly inflames the passions of all sides of the debate, and it’s going to be interesting to see how the effects of this law pan out.

One thing I can say for certain is that LegalMatch case data from the last few weeks does not indicate a significant increase in immigration cases coming out of Arizona. This makes sense, as the law is not set to take effect until 90 days after its passage. However, I expect that we will see more of these cases coming out of Arizona in the future.

Incoming search terms for the article: