Author Archive for John Richards

Supreme Court Throws Out Life Without Parole for Juveniles

I blogged before about how the Supreme Court, for the last decade or so, has been on a noted trend of limiting the imposition of the most severe criminal sentences, under the 8th Amendment’s prohibition of “cruel and unusual punishment.” In the early 2000s, there came a series of decisions holding that people who were under the age of 18 at the time they committed their crimes cannot be sentenced to death. Around the same time, they ruled that the mentally-disabled are also ineligible for the death penalty.

A few years later, they ruled that the death penalty cannot be imposed for any crime other than murder (overturning the death sentence of a man who had been convicted of raping a child).

Most recently, the Court has held that minors cannot be sentenced to life without parole for any crime other than murder. When that ruling came out, I, along with many other legal wonks, speculated that it was only a matter of time before the Court took up the issue of whether or not that same restriction should also apply to juveniles convicted of murder.

Well, the Supreme Court has just ruled that it does. They overturned the sentence of life without parole of a juvenile who had been convicted of murder, on the grounds that such a sentence constituted “cruel and unusual punishment” under the meaning of the 8th Amendment to the Constitution.

Actually, to be more precise, the court ruled that mandatory sentences of life without parole for juveniles are unconstitutional. However, making that sentence an option, which a judge can choose to impose at his or her discretion, appears to still be allowed, for now.

Like the past decisions I mentioned above, I think that this one is a step in the right direction, and I also think that the horrible scenarios trotted out by “tough-on-crime” pundits are largely distractions. First of all, this ruling does not guarantee that everyone sentenced as a minor will eventually be released. The court simply held that all juvenile convicts must be given a meaningful opportunity for parole. It did not dictate that every application for parole has to be granted. This seems like a good balance to strike. Some people do truly reform themselves in prison, through a wide variety of avenues. Some prisoners find religion, others use their time (something prisoners generally have plenty of) to earn their GED, or learn a trade. And others (especially prisoners convicted when they were minors) simply mature over the years, and come to understand the error of their ways.

In many cases, these rehabilitation success stories end up mattering very little, because the inmates are ineligible for parole, and are almost certainly destined to languish in prison for the rest of their lives.

On the other hand, if these people were eligible for parole, it’s possible that they’d eventually be released, and would have the potential to become productive members of society, instead of living the rest of their lives in prison, at taxpayer expense.

And if prisons really focused on rehabilitation, rather than punishment, I believe that a far larger number of convicts could be released, with little risk of recidivism. This is especially true of younger inmates, who still have a good deal of development and maturing ahead of them. In the proper environment, I don’t doubt that a large number of them could be rehabilitated.

And I think that this ruling provides officials with a strong incentive to reform prisons with an eye towards rehabilitation. After all, if prison officials know that everyone who is convicted of a crime as a minor will have a real chance at eventually being released, they will have a strong incentive to invest in programs designed to decrease the chances of them re-offending.

And it’s important to note that this decision, and the decisions restricting the imposition of life without parole sentences that came before it, does not mean that every juvenile convicted of a heinous crime has to be released eventually. The decisions recognize (as would any civilized but pragmatic legal system) that rehabilitation, while a worthy goal, simply isn’t always possible. There are some people who are simply bad to the core, and need to be kept out of society forever. To that end, these decisions make it clear that juveniles convicted of serious crimes need to be given a real opportunity to apply for parole. They do not say that every parole application needs to be granted.

This means that all juvenile offenders will have a chance to prove to a parole board that they’ve been rehabilitated. However, parole boards will still be able to deny the parole application of anybody who they believe represents a continuing threat to society.

To me, this seems like a perfect balance between the interests of giving young offenders a second chance, and ensuring that the authorities still have the flexibility to keep the worst of the worst offenders locked up.

Judges Replacing Lawyers with Machines for Some Tasks

Suppose a large company, as large companies are wont to do, gets itself involved in a lawsuit, either as a plaintiff or defendant. In the early stages of the lawsuit, a process known as “discovery” usually occurs, during which the parties exchange evidence that might be relevant to the case.

In many cases, this could involve combing through millions of documents in order to fish out the small percentage that might be relevant to the case at hand. This process is informally known as “doc review,” and is often carried out by dozens of lawyers working on contract with the firm that’s handling the case. Obviously, paying dozens of attorneys $30+ per hour for weeks, or even months, will get very expensive, very fast. So, for years, large corporations and law firms have been looking for ways to automate the process.

That is no simple task, however. Reading a document, parsing the meaning of its contents, and determining whether it’s relevant to the issues at hand, are tasks that machines have historically been terrible at, and have been considered the exclusive domain of human beings. That might be changing, however.

I’ve blogged before about how recent advances in artificial intelligence had the potential to significantly change how law is practiced. Super-powerful computers, combined with software systems like “Watson” (the computer that famously won Jeopardy last year), have become much better at processing natural human language, and parsing meaning from written content.

However, this change has happened faster than I might have predicted. A judge recently signed off on allowing a party to a large lawsuit (the owner of an airplane hangar whose roof collapsed from heavy snow, destroying over a dozen private jets) to conduct the first round of document review (which mostly involved combing through millions of company emails) with a computer program.

Some estimates place the cost of manual document review at over $1 per document. When tens of millions of documents might be involved, this gets very expensive, very quickly. Having a computer conduct the first few rounds of review could conceivably make the process faster, and much cheaper. And because the discovery process makes up the bulk of the expenses associated with large scale litigation, streamlining discovery could significantly cut the costs of litigation, having a trickle-down effect of reducing the costs of legal services for everyone.

However, when using machines to take over some of the tasks previously done by human lawyers, we have to be careful. After all, computers aren’t perfect. We’ve probably all seen computers do some pretty strange things that a human would never do, all because, at the end of the day, computers are still machines: they operate under pre-determined rules, applying them with rigid, unflinching logic, without the benefit of human intuition and adaptability. So, while this makes them very well-suited for any task that involves mathematics, but they’re still playing catch-up when it comes to things that are very easy for humans.

So, if we’re going to have computers doing substantive legal work (that is, actually analyzing legal issues, no matter how simple), we need to dip our toes in slowly. For example, if we let a computer conduct a large percentage of the document review in a particular case, without human oversight, there will be no way of knowing for sure that it didn’t miss any relevant documents, or let a significant number of irrelevant documents slip through.

Given what’s at stake in huge lawsuits (often tens or hundreds of millions of dollars), you want to be confident that the discovery process is handled well. For that reason, I think it’s essential for the legal system to ease into having computers, rather than people, do any type of substantive legal work.

There is no doubt that these technologies are impressive, and they have some incredibly useful applications in the legal industry, and many other sectors – particularly medicine. It’s been suggested that this technology could be used to assist doctors in diagnosing illnesses; they could simply enter a list of symptoms, and the computer could, in a matter of minutes, scour digital archives of every medical textbook and journal available, and suggest diagnoses that a human doctor might not have thought of. Furthermore, it’s possible that these systems could detect outbreaks of infectious diseases (by analyzing the data of large numbers of patients as they come in) before a human doctor would be able to.

And, putting aside the task of reviewing documents, these systems have other promising applications for lawyers and law firms. For example, their unprecedented ability to process natural language and parse meaning from documents would make computerized legal research much more efficient. This would likely not replace the jobs of many lawyers, but it could possibly let some law offices get by with fewer assistants and paralegals, which would cut their costs significantly.

So, while this technology shows promise, using it to replace the intuition and analytical abilities of a human being (in any industry, but in the legal sector in particular) should be approached cautiously and deliberately.

Should Prisons Consider Releasing Older Inmates?

As you probably know, America has a bit of an incarceration problem. This country has the highest incarceration rate in the world, with nearly 1% of the population currently behind bars. Over 2.2 million adults are incarcerated in the United States. And while the U.S. accounts for 5% of the world’s population, it houses 25% of the world’s inmates. Even if you don’t account for population differences, America’s incarceration numbers are mind-boggling.

The U.S. prison population is even larger than that of China – a country with about 3 times the total population of the U.S. and a reputation for being very authoritarian and punitive towards criminals.

This didn’t happen overnight, and the people who created the laws and policies that led to our current situation probably didn’t intend for this to be the end result. The prison population skyrocketed beginning in the early 1980s, when the U.S. was experiencing unacceptably high violent crime rates. This led the federal government, and state governments, to enact policies meant to “get tough” on crime. One tactic used to deter crime was to lengthen prison sentences, and expanding the number of offenses eligible for life imprisonment.

As a result, the many thousands of people given decades-long (or life) sentences 30 years ago are starting to get old. For their own safety, they sometimes need to be separated from the rest of the prison population. And they’re prone to all the medical problems associated with age – heart disease, stroke, dementia, and others. Since the government picks up the tab for prisonersmedical care, the cost of keeping these individuals incarcerated is much higher than the average prisoner. On top of this, prisoners 55 and older already represent a significant portion of the prison population (there are over 120,000 of them), and they are the fastest-growing population in U.S. prisons.

The ACLU just released a report arguing that many of these prisoners could be released, and that doing so would pose very little risk to public safety. After all, they contend, a senior citizen is pretty unlikely to commit a violent crime. Most elderly people simply can’t commit many violent crimes, even if they want to. And keeping senior citizens in jail costs state and federal governments about $16 billion per year. In an era of fiscal austerity, most people would welcome that kind of savings.

Critics, however, point out that (1) releasing these prisoners is not without risk, and (2) the money that the taxpayers save on keeping these people incarcerated may simply be spent taking care of them after they’re released, via Medicare and Medicaid, in addition to housing subsidies, food stamps, and other welfare benefits. So, it’s not clear if this would actually save governments much money, though it’s hard to imagine how it could cost them any more than is already spent on them.

But as a practical matter, it’s hard to see what society gains by keeping them locked up. Are these men and women likely to re-offend? Probably not. So nobody is being protected by keeping them locked up.

Opponents of this move make a few good points, however. First, they argue that it would send the wrong message to younger would-be offenders, giving them the idea that they, too, might be released once they become elderly and enfeebled. In theory, this could reduce the deterrent value of long prison sentences. Still, if a would-be criminal in his 20’s actually weighs the sentence he’s likely to face (if he’s caught) before committing a serious crime, would spending 50+ years in prison, only to be released in your 70s’ or 80s’, seem much better than spending your entire life in prison? As someone in my 20’s (though I don’t plan on committing any felonies any time soon), I can say that both of those options seem pretty terrible.

That raises another question: if no support system is in place on the outside, would releasing elderly prisoners, who have been incarcerated for decades (and think of how much the world has changed over the last few decades), be any more humane than keeping them in prison, or in prison hospitals?

Think about it: if a person in his 70’s or 80’s is isolated from society for the last two thirds of his life, do you think he’d take well to being thrown back into the world? Not likely. Without some kind of support system, elderly prisoners who are released seem virtually guaranteed to become homeless, possibly turning to crime simply to survive.

As is often the case, there’s no perfect solution to this problem, which is really just one of the many problems created by the overcrowding of our prisons, which, in turn, is a symptom of the over-criminalization of American law.

Personally, I believe that we need to completely rethink the types of crimes that warrant imprisonment, and what purpose prisons should serve. First of all, I think virtually all nonviolent drug offenses (especially first offenses) should not be eligible for jail time. Instead, the money that would have been spent incarcerating these offenders should be directed to mandatory rehabilitation programs for drug addicts.

Also, prisons should really focus on rehabilitation. While most penal systems in the U.S. pay lip service to the notion of practicing rehabilitation over retribution, few seem to make much of an effort to implement it. However, if we did, I would wager that more people who end up in prison at an old age would be better-suited to reenter society upon their release.

In Rare Move, Federal Judge Blocks Sex-Trafficking Law

There’s a certain theme I’ve hit in many of my blog posts before: when dealing with a major social problem, our initial response is to create a new criminal law to ban whatever behavior we believe leads to that law. We then sleep tight, secure in the knowledge that we’ve “done something” – with the actual effectiveness of these laws being of secondary concern.

And even if a law (such as draconian sexoffender residency restrictions, for example) ends up having the opposite of the intended effect, changing or eliminating the ineffective law often becomes an uphill battle, because it’s almost impossible to argue against laws governing the post-release conduct of sex offenders without coming off like you’re actually “taking sides” with sex offenders.

And before I go any further, I should make clear that I have no sympathy for sex offenders. I think that their crimes are some of the worst things that one human being can do to another, and that they should be a high priority for law enforcement. Precisely because these people are so dangerous, and prevention of their crimes is so important, we should avoid knee-jerk, emotionally driven responses when we consider laws to deal with the problem.

That’s partly why I found this case so interesting. A federal judge in Washington state has granted a temporary restraining order barring the state from enforcing a law that would require the providers of classified ads, such as newspapers and websites, to verify the ages of everybody who works at any sex-related business that takes out an advertisement.

This law came on the heels of concerns that classified ad website BackPage.com (and other, similar sites) was hosting advertisements from companies providing “adult” services, like escorts and massage parlors, and were enabling criminal activity such as child prostitution and human trafficking.

Obviously, anyone who would sexually exploit children for profit (or any other reason) is, to put it mildly, a monster. They deserve to be locked up, and have the key thrown away. And finding and prosecuting these people is one of the major reasons we pay taxes for law enforcement.

However, it does not follow from there that every private entity can be drafted into service of that objective. This law was written so broadly, that it could be interpreted to require virtually every online service, from dating sites to chat rooms, to verify that all of their users are adults. Obviously, this requirement would be pretty hard to comply with, and could force entire classes of legitimate online services to go out of business in the state of Washington, and other states that decided to implement similar laws.

I should note that the court did not issue a final ruling on the merits of the case. It only issued a temporary restraining order, which blocks the law from going into effect for only 14 days. This is issued before a court has had time to consider all the evidence and legal arguments concerning the law’s validity.

These orders are typically granted when a lawsuit is initially brought, and the plaintiff can, right at the outset, prove a few things. Most importantly, they have to show that they are more likely than not to prevail on the merits. They must also show that they would suffer irreparable harm if the order is not granted. Also, in order to get a temporary restraining order, the party seeking it usually has to put up a bond to compensate the party against whom the restraining order is sought, in order to compensate them for any harm caused by it, if they ultimately prevail.

However, I think that, in this case, the court will ultimately come down on the side of the newspapers and websites that run these ads. While I think that they have some moral responsibility to try and ensure that the services they advertise don’t employ underage individuals, or contribute to human trafficking, and many of them do take reasonable measures to this end.

However, any business that engages in the deplorable conduct of human trafficking and child prostitution is, by definition, a criminal organization. They usually aren’t in the business of making their illegal activities widely visible to the public.

So, it seems unreasonable for the operators of classified ad sites to be expected to police the internal operations of organizations that may or may not be engaged in criminal activity, if law enforcement hasn’t already done the same.

“So,” you might ask, “why not simply ban advertisements for ‘adult’ services that often serve as fronts for illegal activities, such as massage parlors and escorts?”

Well, the First Amendment still applies here. As you probably know, the Constitution guarantees all Americans the right to free speech. The Supreme Court has long held that the right to freedom of speech also applies to so-called “commercial speech” – i.e. advertisements. And although the protection afforded to commercial speech is quite a bit thinner than what other types of speech enjoy (the Supreme Court has held that advertisers can be banned from making false and misleading claims without running afoul of the First Amendment, for example), effectively banning advertising by a whole class of lawful (even if they are seedy) businesses because they might engage in illegal activity is almost certainly not consistent with the right to freedom of speech, even the more limited right afforded to advertisements.

I’m obviously concerned about the issue of human trafficking and child prostitution, and I think that the federal and state governments should enact legislation to combat it. However, these measures need to be well thought-out, and narrowly tailored to actually address the problem at hand. I’ve said it before, and I’ll say it again: we cannot legislate based on emotion.

Can You Get the Benefits of Divorce Without Being Married?

If you’re a normal American adult, it’s highly likely that you know at least one couple who are unmarried and live together, routinely intermingle their finances, and maybe even have children. And chances are you don’t think that this is anything unusual.

For most purposes, these couples can enjoy the legal benefits of marriage, even if they have to jump through a few hoops that a married couple would not have to (setting up power of attorney to make medical decisions for one another, for example).

However, one thing that unmarried couples in the United States generally cannot do is get divorced – where their relationship is legally dissolved, and the assets acquired during the marriage are distributed between the former spouses in the most fair and equitable way possible.

This is also generally true in most other Western countries, such as Canada, for example. But things might be changing in our neighbor to the North, and perhaps in the United States, as well. At first blush, ending a long-term, cohabitating, but unmarried, relationship seems like a relatively simple matter: the couple breaks up, and one of them moves out. There are no messy court proceedings, and the former lovebirds have to agree amongst themselves about how their stuff is divided up. If the couple had children, the only legal dispute that’s likely to come up is about child support.

However, the former girlfriend of a Canadian billionaire, with whom she was in a relationship for about 10 years, got an order from a court in Quebec requiring her former partner to pay her spousal support, on top of the child support he already pays. Her argument is essentially that their relationship was identical to marriage in all but name, and that treating it otherwise amounts to discrimination against unmarried couples.

Now the government of Quebec is appealing that decision to the Supreme Court of Canada, arguing that it interferes with the rights of individuals to enter into the marital/domestic arrangements of their choice.

So, what does this have to do with the United States? Well, whatever a court in Canada rules, it will obviously have no direct bearing on couples in any other country.

However, in some U.S. states, there are already legal arrangements which are strikingly similar to the one that the plaintiff in this case seeks to establish. Most notable are so-called “common law marriage” and “palimony.”

Common law marriage is only recognized in a minority of U.S. states, because it can create problems that will be discussed shortly. In the states that do recognize it, a common law marriage is essentially a marriage created by operation of law, based on the couple’s circumstances, rather than the couple actively entering into a marriage. While the exact requirements vary between states, in order for a common law marriage to be established, the couple needs to have lived together for a certain period of time (usually several years), and behaved in all ways as a married couple during that period, by commingling their finances, holding themselves out as husband and wife, and having and raising children together.

When the relationship ends, or one of the partners passes away, the legal consequences can be the same as if the partners were married. For example, if a common-law marriage ends, one partner may seek spousal support (alimony) from the other partner. Of course, a prerequisite for this is that they were married in the first place, which requires them to go to court and show that their relationship had all of the required characteristics of a common-law marriage.

Likewise, if one of the partners dies, and did not leave a will, their assets will usually first go to their spouse, if they have one. This can lead to disputes between the decedent’s living partner, and the decedent’s other relatives, over who should inherit his or her property. In that case, a court would also have to determine whether or not a common-law marriage existed between them.

Basically, this question rarely comes up during the relationship, so courts are forced to resolve the issue after the fact, which can be very expensive and time-consuming for everybody involved.

For that reason, many states have done away with common law marriage, meaning that they will only recognize a marriage that follows all the ordinary formalities (obtaining a marriage certificate, having an officiated ceremony with witnesses, etc.) in order for their relationship to ever be classified as a legal marriage.

With that in mind, it actually makes a lot of sense that the government of Quebec would want to prevent a similar situation from arising: common-law marriage seems like it’s a lot more trouble than it’s worth, which is why the trend is to abolish it in the United States.

On top of that, they’re probably also right that it could interfere with one’s right to enter into their preferred type of marital relationship. The knowledge that they might end up on the hook financially for all the obligations of marriage, even if they never thought they were married, could deter people from entering into long-term relationships.

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