Author Archive for Andrea Babinec

Are Three-Strikes Laws Outdated and Unfair?

Donald J. Trump proclaimed himself the “law and order candidate” in his speech at the Republican national convention, announcing that violent crime is through the roof in major cities across America. Mr. Trump seemed to imply that criminals should face even harsher penalties for their wrongdoing. After all, shouldn’t we do whatever we can to keep “bad guys” off the streets? So why then are some states deciding to scale back on strict laws that send three-time offenders to jail for life?

What are Three-Strikes Laws?

28 states have laws in place that give alleged offenders harsh, mandatory penalties (generally a life sentence) for their third felony. Similarly, other states have what are known as habitual offender laws, in which an offender can face an enhanced penalty for a crime committed after a certain number of felonies. Three-strikes and habitual offender laws varies state by state and can depend on factors such as the seriousness of the felonies, the length of time between felonies, and the discretion of the judges.

Recently, New Mexico passed their own three-strikes legislation, adding 16 felonies to the list of crimes that make repeat offenders eligible for life sentences. The bill passed 47-15 in the House of Representatives, even after Democratic lawmakers protested, calling the law too broad and outdated.

Delaware Does Away with Its Three-Strikes Law

Some states have decided to take a very different attitude towards repeat offenders. Delaware decided to amend their three-strikes law after the House of Representatives approved a bill on June 21st. Delaware’s defeated Habitual Offender law mandated a life sentence for offenders who had committed three violent felonies. Additionally, people who were found guilty of three nonviolent felonies and one violent felony used to be required to serve the felony conviction’s maximum sentence. Prison

Under Delaware’s new sentencing law, there will be no mandatory life sentences handed down to habitual offenders— although judges will still be able to give life sentences at their discretion. Additionally, the new law permits offenders who are currently serving time under the old three-strikes law to enter into a review process to appeal their sentence.

The repeal of Delaware’s Habitual Offender law sparked outrage from some lawmakers, who argued that the new legislation ignored the victims of violent crime and posed a risk to public safety with dangerous criminals allowed back on the street. However, those in favor of the new law pointed out that the Habitual Offender law caused offenders to be saddled with disproportionate and unfair sentences. For example, under the Habitual Offender law, someone convicted of burglarizing a house could be given the same sentence as someone convicted of murder. Critics charged that the Habitual Offender law gave prosecutors all the power in sending offenders away for life, leaving judges with no discretion.

The Nationwide Fallout of Three Strikes Laws

The first three-strike law in the nation was passed in Washington State in 1993. The law categorizes a number of violent crimes as “strikes,” including second-degree robbery. Someone can be charged with second-degree robbery even if they weren’t armed at the time of the crime and didn’t physically harm anyone.

If that second-degree robbery is your third strike, you could get sent to prison for life in Washington. Skyrocketing prison populations, the failure of three-strikes laws to take offenders’ individual circumstances into account, and the lack of judicial discretion in three-strikes cases are common shortcomings of three-strikes laws.

Over the years, some have tried to modify the three-strikes law in Washington. Such efforts included requests to remove crimes like second-degree robbery from the list of strike offenses. Additionally, legislation has been proposed to allow certain three-strike offenders convicted of lesser felony crimes to have their sentences reviewed after 15 years of jail time by the Indeterminate Sentence Review Board.

However, there are still those who oppose changes to the law. These people argue that voters have made it very clear that they want habitual offenders off the streets, by whatever means necessary.

Did Donald Trump’s Campaign Rip Off A Florida Girl Group?

A Florida man is expected to file a lawsuit against Republican presidential candidate Donald J. Trump’s campaign over what he considers broken promises to his preteen girl group U.S.A. Freedom Kids. Jeff Popick, manager of the group and father to one Freedom Kid, claims that his group was promised two performances at Trump campaign events. However, the Freedom Kids were not compensated for their first performance at a campaign rally and had their second performance cancelled, never to be rescheduled.

Did the Freedom Kids Have a Valid Contract With the Trump Campaign?

Although Popick admits that none of the promises Trump’s campaign made to the Freedom Kids are in writing,  this does not mean that a valid contract doesn’t exist.

One of the essential components in the formation of written as well as oral contracts is that an offer is made by one party (called the offerer) to another (called the offeree). The offerer must spell out the essential terms of the agreement—including the price and subject matter of the contract. According to Jeff Popick, the offer presented to the Freedom Kids was that the group would perform two shows for Trump events in Florida. Although the first Florida event did not pan out, the Trump campaign offered to allow the Freedom Kids to perform at a Pensacola rally.

Popick accepted the terms of the contract when he agreed to have the Freedom Kids perform at the rally in Pensacola. In exchange, the Trump campaign would set up a table at the event where the group could sell their albums. This exchange of the Freedom Kids performance for the table at the rally represents what is known as consideration. Put another way, consideration is the benefit that each party gets in a contract—in this case, the Trump campaign received the Freedom Kids performance in exchange for the exposure and monetary benefit the Freedom Kids were supposed to receive from their table at the rally.

Broken Promises

Although the Freedom Kids did perform at Trump’s Pensacola rally as promised, they were not provided with any table. Popick’s attempts to reach the campaign afterward for some other form of compensation met with no success. As a result, Popick was forced to eat the cost of the promotional materials he purchased for the table. Freedom Kids

When a Trump representative reached out to Popick again, asking if the Freedom Kids could perform at an event for veterans in Des Moines the following day, he agreed. However, just as the Freedom Kids and their families arrived in Iowa, they learned that there had been a change of plans and the group would not be performing after all. Although the performers were still invited to attend the rally—which they did, in their outfits—they were instructed to not speak with the press.

Popick was never compensated for what he spent on the Iowa trip, including the costs of hotel rooms, a rental car and airfare. His subsequent calls and e-mails to the campaign, demanding a second performance at the Republican National Convention, went unanswered. According to Popick, “We are owed compensation, or as the agreement is, a performance. That’s what the agreement was.”

The Trump Campaigns Failure to Perform

The contract law term “performance” refers to the act of doing what is required by the terms of a contract. One element of performance has to do with mutual intent, or the state of mind of both of the parties entering into the contract. In contract law, the intent of the parties is usually ascertained by the language of the contract. In the case of the Freedom kids, the lack of a written contract makes it more difficult to prove the mutual intent of the parties.

However, courts asked to intervene in contract disputes can derive mutual intent from the circumstances, including the parties’ conduct.  In other words, how the parties’ act following the creation of a contract may later prove to be just as effective as an indicator of their intent as the words in a contract. If a mutual agreement can be inferred between two parties due to circumstances, then an “implied contract” is created. It appears that the Freedom Kids’s performance in Pensacola along with their travel to the Iowa rally bolster the existence of an “implied contract” with the Trump campaign.

Contracts are often evaluated by what is known as the standard of substantial performance. Under substantial performance, parties to a contract are allowed a partial or substantially similar performance to substitute for the performance specified in the contract. In other words, you don’t have to perform your contractual duties perfectly to have completed them. However, the standard of substantial performance is not met if there is a material breach by either one of the parties. In a material breach, one of the parties fails to perform the contract in a way that makes the agreement “irreparably broken.” A material breach defeats the purpose of even making the contract in the first place.

The Trump campaign’s decision not to provide the Freedom Kids with a table at their rally or allow them a second performance are material breaches that completely ignore their previously formed contract.

Should Those Convicted Of Domestic Violence Have Any Gun Rights?

Should those convicted of domestic violence be banned for life from owning firearms? On June 27th, the Supreme Court ruled against Voisine v. United States, a case that sought to strike down a federal amendment that bars individuals convicted of misdemeanor domestic violence from owning guns. Although the Court’s decision was clearly meant to protect domestic violence victims, the ruling means the perpetuation of an overreaching law that strips away defendant’s Second Amendment rights.

Was the Ruling in Voisine v. United States Fair?

Stephen Voisine and William Armstrong III, the two Maine men at the center of Voisine v. United States, were both convicted under the Lautenberg Amendment, a federal law which makes it a felony for people previously convicted of domestic violence misdemeanors to own or buy a gun. Those protected under the Lautenberg Amendment include a defendant’s spouse, ex-spouse, a parent to a defendant’s child or someone they lived with.

Stephen Voisine pleaded guilty to assault in 2004 after slapping his girlfriend in the face while he was intoxicated. He was convicted under the Lautenberg Amendment several years later, after someone anonymously reported seeing him shoot a bald eagle with a rifle. William Armstrong III pleaded guilty to assaulting his wife in 2008. He was convicted under the gun law a few years later, after police searching his home as part of a narcotics investigation found firearms and ammunition.

Lawyers for Voisine and Armstrong argued in Voisine v. United States that their client’s crimes didn’t qualify for the federal gun ban because the men’s assaults were committed “recklessly,” instead of knowingly or intentionally. According to Maine law, a person’s conduct is considered “reckless” when he or she knowingly ignores the risk that their behavior may cause others.

Nonetheless, the Supreme Court rejected arguments that the gun ban on those convicted of domestic violence misdemeanors only applies to intentional acts of abuse. Justice Elena Kegan argued that if the Lautenberg Amendment was interpreted to not include misdemeanors in which a person acted recklessly, the purpose of the law would be undermined. After all, the Lautenberg Amendment was designed to protect all domestic violence victims, not just those victims of premeditated abuse. In other words, acting impulsively and in the heat of the moment is not, the court found, an excuse for violence. Domestic Violence and Guns

However, Justice Clarence Thomas disagreed with the majority’s decision, stating that he found it troubling that a misdemeanor conviction could deprive someone of their Second Amendment right to bear arms. Thomas wrote that under the majority of the Supreme Court justice’s interpretation, “a single conviction under a state assault statute for recklessly causing an injury to a family member — such as by texting while driving — can now trigger a lifetime ban on gun ownership.” Justice Thomas’s concerns echoed the opinions of gun-rights activists, who also expressed concern at Voisine and Armstrong losing their constitutional right to bear arms.

When you consider Thomas’s point that someone who is convicted of “reckless” behavior that does not even involve a gun could lose their constitutional right to bear arms under the Lautenberg Amendment, the Supreme Court’s decision to uphold the law seems less than fair.

How the Supreme Courts Decision Conflicts with State-Level Domestic Violence Charges

Some states have what are referred to as domestic violence wobbler charges—cases in which the prosecutor must decide whether they should try to give the defendant a felony or misdemeanor charge. The type of charge ultimately given to a defendant depends on several factors including the circumstances of the case, the location of the arrest, the nature of the defendant’s relationship with the plaintiff, and the defendant’s criminal history. In some states the line between misdemeanor and felony can be very thin.

For example, a commonly charged offense in California (known as Penal Code Section 273.5) includes inflicting physical injury on a cohabitant, spouse, or someone the defendant has dated. This charge is considered a wobbler as the District Attorney can decide to reduce the charges to a misdemeanor if the victim’s injuries are deemed to not rise to the felony level.

Another common domestic violence charge, Penal Code Section 245, is often a felony charge, and it is also considered a strike under the Three Strikes Law in California. However, this charge is still considered a wobbler and can be reduced. In California, someone convicted of a felony under a wobbler law can, if they were not sentenced to state prison and successfully completed probation, have their charge reduced to a misdemeanor and have their gun rights restored.

While having any sort of criminal record is undesirable, being charged with a felony is much more detrimental to a defendant’s future than a misdemeanor. Someone charged with a felony could lose their right to vote as well as their ability to gain employment in certain fields. In many cases, convicted felons also lose their right to own or buy a firearm.

The ruling in Voisine v. United States sends a message to the public that even if you are only charged with a domestic violence misdemeanor, you could face restrictions on your constitutional rights similar to the restrictions placed on someone with a domestic violence felony. Most people are okay with restricting the rights of felons. Now, we are seeing the slippery slope of restricting the rights of those convicted of misdemeanors becoming a reality.

The Lautenberg Amendment eliminates, at least at the federal level, the weighing of specific circumstance in deciding how to charge domestic violence wobbler cases. That someone could lose their constitutional right to bear arms because of a misdemeanor (for something like texting while driving with a family member in the car, as Justice Clarence Thomas noted) is disturbing, and sets the stage for further restrictions on the futures of even low-level criminals.

Should Suspected Criminals Expect Any Right to Privacy?

What sort of measures should authorities be allowed to take to capture alleged criminals? On June 23rd, a federal judge ruled that the FBI didn’t need to obtain a search warrant before they hacked into the computer of a man who had allegedly viewed child pornography. In his ruling, Judge Henry Morgan argued that the defendant, Edward Matish, had no “reasonable expectation” of privacy in his IP address.

 Should the Government Be Able to Use Any Technology to Catch Criminal Activity?

The case against Edward Matish centered around a child pornography site, Playpen, that was only accessible through Tor, a browser designed for anonymous web surfing. After taking control of Playpen in early 2015 (and arresting its operator), the FBI secretly gathered information about its users through a tool known as a NIT, or network investigative technique, that let investigators see the IP address of each individual who logged on to the site.

Attorneys for Matish said that the evidence gathered by the FBI’S NIT should not be allowed to be presented in court. After all, his attorneys argued, there was no search warrant specifically naming Matish when the FBI hacked into his computer. FBI

However, Judge Morgan took the opposite view, stating that in Matish’s case the government’s duty to protect its citizens superseded any concern over Matish’s privacy in the face of electronic surveillance. In his remarks, Judge Morgan added: “The Government should be able to use the most advanced technological means to overcome criminal activity that is conducted in secret.”

Interestingly, not all cases involving people who were unknowingly put under digital surveillance before being accused of viewing child pornography have ended in a ruling like the one levied against Edward Matish. Federal judges in at least two similar cases have ruled in favor of the defendant, saying that the FBI’s Virginia-issued warrants (which called for the use of the FBI’s NIT) were invalid because the defendant’s alleged crimes did not occur in Virginia.

If the government’s duty to protect its citizens is so powerful, why didn’t federal judges in other cases involving underground child pornography declare the FBI’s NTT warrants valid? Could those other federal judge’s rulings signal that the FBI’s use of digital surveillance techniques is not always the best option in rooting out criminals?

But Shouldnt the Government Do What It Can to Root Out Child Pornography?

One of the issues raised in United States v. Matish was whether the defendant’s Fourth Amendment right against unreasonable searches and seizures by the government was violated when the FBI hacked his computer. Whether a search is considered reasonable under the law is determined by considering whether the government’s legitimate interests, such as public safety, outweigh an individual’s right to privacy.

In other words, the government has to decide whether a crime’s danger to the public is even more pressing then the alleged criminal’s Fourth Amendment rights.

Judge Morgan cited a Supreme Court decision to bolster his reasoning that the FBI’s actions in Matish’s case amounted topeering into a gap in closed blinds, “which does not violate the Fourth Amendment. Judge Morgan’s choice of words, which conjure up the FBI taking only a quick glance at the underground child pornography site, do not seem to align with what actually occurred in the investigation.

In fact, the FBI gathered Playpen users information over the course of 13 days, using their NIT that some have characterized as “malware.” The FBI has actually taken steps to keep the code to the NIT used in the Playpen investigation secret, calling it a matter of national security.

Judge Morgan’s assertion that Edward Matish had no “reasonable expectation” of privacy in his IP address drew outrage, even in the face of the defendant’s alleged viewing of child pornography. Privacy advocates argued that the implications of Judge Morgan’s ruling were staggering–that it set the precedent for law enforcement to remotely search and seize information from anyone’s computer without a warrant or even probable cause.

While some might argue that the capture of someone who has allegedly viewed child pornography is more important than any concern about the government violating their privacy, a couple of questions cannot be ignored. Does anyone, according to Judge Morgan’s logic, have a reasonable expectation of privacy in their IP address? And what other ways could the government employ the use of NIT in the future?

Was Brock Turner’s Sentence a Slap on the Wrist?

On June 2nd, Santa Clara Superior Court Judge Aaron Persky sentenced former Stanford University athlete Brock Turner to six months in jail and three years of probation after Turner was convicted of sexually assaulting an unconscious woman behind a dumpster.

Turner’s seemingly light sentence sparked nationwide outrage, with a petition on demanding Persky’s resignation getting more than 1 million signatures. Critics allege that Turner would have been punished more harshly if he hadn’t been a white, celebrated Stanford athlete from a relatively privileged background.

Many questions remain in the wake of Turner’s sentencing. For one thing, what could Judge Persky’s rationale have been for giving Turner what some have called a slap on the wrist? Also, what is the expected sentence in sexual assault cases like Turner’s? And did the judge make a horrible mistake in how he punished Turner?

The Rationale Behind Judge Perskys Sentence

Although Brock Turner has been labeled by many as a rapist, this is not, in California and in many other states, technically the case. Under California law, rape is defined as “an act of sexual intercourse” while a victim is unconscious or incapable of giving consent.

In other words, because Brock Turner did not penetrate the victim with his penis, he cannot legally be considered to have raped her. This legal distinction between rape and sexual assault caused the two most serious charges leveled against Turner—rape of an intoxicated person and rape of an unconscious person—to be dropped. This is a factor that (most likely) spared him a harsher sentence. Brock Turner

Instead of rape, a jury convicted Turner of assault with the intent to commit rape of an unconscious person; sexual penetration of an unconscious person; and sexual penetration of an unconscious person—all felonies. While Turner faced a maximum penalty of 14 years in prison, prosecutors recommended that Judge Persky impose a six-year prison term.

Judge Persky instead sentenced Turner to six months in county jail and three years’ probation, and required that Turner register as a sex offender. When announcing Turner’s sentence, Judge Persky cited the defendant’s youth as well as lack of a prior criminal history as mitigating factors. Persky also stated that he believed a prison sentence would have a “severe impact” on the defendant and that he did not believe Turner would be a danger to others.

Critics noted the similarities between Persky and the defendant’s backgrounds —like Turner, Persky attended Stanford, where he played lacrosse. However, it is important to keep in mind that Santa Clara County’s probation department also supported a “moderate” jail sentence for Turner. In their recommendation to the judge, the probation department mentioned Turner’s lack of a criminal history as well as their belief that his high intoxication level during the sexual assault reduced the seriousness of his crime.

What Penalties Have Others Charged With Sexual Assault Received?

Legal experts around America expressed disbelief at the sentence handed down to Brock Turner. Sex crimes prosecutor Dmitry Gorin told the Los Angeles Times that he could not think of a similar case in his area where a defendant convicted by a jury of a violent crime avoided prison. He stated that it is very unusual for someone convicted of such a crime to receive probation.

Information comparing how Turner’s sentence compares to the sentences of others convicted of sexual assault is hard to come by. Although a 1997 Bureau of Justice Statistics report said that the average sexual assault prison sentence was 6 1/2 years with three years served, Ohio State University Professor Douglas Berman said that a lack of data on sexual assault sentencing makes it hard to judge the relative severity of Turner’s sentence.

So Did Judge Persky Make The Wrong Decision?

Not everyone thinks the sentence Judge Persky imposed on Turner is too lenient. Santa Clara County public defender Sajid Khan told that he doubts Turner’s race and affluence influenced Judge Persky’s sentence. Khan stated that no one has been able to give an example of a case in which a minority defendant received a harsher sentence than Brock Turner after being convicted of a similar crime. Khan pointed out that, regardless of the length of Turner’s time in custody, he will have to register as a sex offender and will be labeled a felon for life.

Although much of the public discourse surrounding Brock Turner’s sentence has failed to discuss how he must register as a sex offender, registration is not something to be taken lightly. Restrictive registration laws make it almost impossible for those on the sex offender registry to find or keep jobs and housing. It is almost certain that Brock Turner’s life will never reach its former potential just because he has to register as a sex offender.

However, any thought that a few months in jail, probation and having to register as a sex offender are punishment enough for Brock Turner disappears when you consider that he has not, to this day, acknowledged sexually assaulting his victim. During his sentencing, Turner told the court: “For anybody’s life to be impacted by my actions…makes me want to live the rest of my life to change it.” This vague statement about “anybody’s life” fails to make any mention of Turner’s victim and the irrevocable harm he has caused her.

Strangely, Judge Persky admitted in court that Turner may never acknowledge that he sexually assaulted his victim—“I don’t think that bridge will ever be crossed,” Persky said. It is troubling to think the judge believes someone as dishonest as Brock Turner is really not a danger to others. It seems that in the case of Brock Turner, the wrong sentence was indeed given.