Author Archive for Sonya Ziaja

Legislatures Grapple With New Police Technologies

My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.

As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.

Requiring a warrant would be a safeguard rather than an outright prohibition. In order to obtain a warrant, law enforcement officials have to petition an impartial judge (usually magistrate), demonstrating probable cause and limited scope. This process is designed to protect against law enforcement abusing their power. And it increases accountability and oversight.

Despite differences between the various tracking privacy bills being considered, there are some aspects that remain consistent. For example, the bills at the state and federal levels carve out exemptions for emergency situations where, for example, someone is in imminent danger.

One major difference between the bills is whether they allow evidence from unwarranted tracking to be admitted in criminal proceedings. The Geolocation Privacy and Surveillance Act (“GPS Act”), for example, is a bipartisan federal bill that would, in general, make information obtained through unwarranted tracking inadmissible evidence in court. Whereas California’s SB914, designed to limit unwarranted access to cellphone data, would still allow evidence obtained in violation of the bill to be admitted in criminal proceedings.

The difference in how such evidence is handled is not necessarily due to the intent of the bills’ sponsors, however. Rather it is the result of differences in the federal and state evidence codes. As such,  without taking evidence codes into account, we are likely to end up with a patchwork approach to these new technologies, despite the efforts of courts and legislatures try to clarify what are acceptable uses of  new tracking devices.

Lunchtime Can Tip the Scales of Justice

Lawyers frequently have to explain to clients the myriad reasons why their cases didn’t go as expected. In any given civil or criminal case, there are usually a range of legal factors to consider, many beyond the control of the parties.

But what about non-legal factors? A new study published in Proceedings of the National Academy of Sciences (PNAS), suggests that these non-legal factors matter more than you might think. Impressively, the study concludes that a significant factor in getting a favorable decision is when the judge last had a lunch break.

The study surveyed 1,000 parole decisions of eight Israeli judges over ten months. In each case the judge could either grant or deny parole. Judges were far more likely to grant parole at the beginning of the day. They were also more likely to grant parole directly after lunch and a mid-afternoon break.

*Image taken from PNAS report, showing the proportion of favorable decisions over time.

Attorneys reported that they thought that factors like the severity of the crime and the amount of time served were likely to affect a judge’s decision to grant or deny parole. The data presented in this study demonstrates otherwise. Apparently, there is more of a correlation between the decision and when the case was heard, than whether the crime was severe.

The idea that external factors influence legal outcomes is not new. Legal realism, a philosophy of law that dates back to the 19th century, suggests that since humans are subject to whims, biases and external pressures, the legal system as a human construct is also subject to the same. In short, legal realism says, “a case turns on what the judge ate for breakfast.” Now, social science is validating that sentiment.

The authors of the study conclude that, as the judges become more fatigued, they are more likely to go with the easier choice—denying parole. And after rest periods, judges have more energy to go with the more difficult and time consuming choice—granting parole.

It’s well known that our courts are overtaxed in the United States.  Judges of all sorts do their best to keep up with ever mounting caseloads. This study then, assuming the results can be generalized, points to a huge problem in our legal system. Cases should be decided on their merits, not on whether a judge has had a break recently.

All this leads to two pressing, though obvious, thoughts. First, we need to examine what else we can do to ensure that everyone actually gets a fair day in court. And second, it’s past time for Congress to finally give up the charade of judicial nomination blockades.

We Can’t Stop the Twisters, But We Can Stop Price Gouging

Natural forces are blind to what they destroy. People aren’t. In the past month, tornadoes and flooding in the South and Midwest left behind crippled lives, destroyed homes, and eviscerated infrastructure.

Now as the victims of the tornadoes try to rebuild, they are left vulnerable to another foe—people who use the disaster for economic gain by price-gouging.

Price-gouging occurs when merchants artificially raise the price of consumer goods that are in an emergency or natural disaster. For example, it’s price-gouging, when after Hurricane Katrina, people were forced to pay $7 for a bottle of water.

Thankfully, there are legal protections against price-gouging in many states, including those that recently declared a state of emergency: Alabama, Arkansas, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee, and Virginia. In each of these states, the price-gouging statutes allows the attorney’s general to investigate and prosecute instances of price-gouging once a state of emergency is declared.

The definition of price-gouging is not settled in some jurisdictions. In Virginia and Tennessee, for example, price-gouging is an “unconscionable” or “unreasonable” price-hike. The exact definition of those terms is then left to the discretion of the AG in the first instance, and then to a judge or jury if a case is tried. In other words, it’s open to interpretation and litigation.

Other states have taken an approach that more clearly delineates what is or isn’t price-gouging. Arkansas follows a more strict approach, prohibiting price increases above 10% for storm recovery products (i.e. water, batteries, food, fuel, and construction materials). Meanwhile, Alabama allows for higher price-hikes than Arkansas. It only prohibits raising prices above 25% of the average price for the previous 30 days.

The consequences in prosecuting a price-gouging crime are also different from state to state. So the same price-hike in one state could carry with it a penalty of $10,000, but in a different state it would only be $1,000 per violation.

How does any of this help the victims of natural disaster? In theory, the threat of these consequences will deter potential price-gougers from profiting excessively from the misfortune of others. This is why Attorney Generals in the affected states have made public statements warning price-gougers and asking citizens to report incidents of price-gouging.

It may not be much of a comfort to people who are currently the victims of price-gouging that state Attorney’s General try to prevent gouging. But there can be additional ways for victims to get help. States, like New York, are considering creating a private cause of action in these cases, allowing victims to sue to stop the price-gouging practice and to collect damages. And in other states, like Vermont, there is a right of action under consumer fraud statutes.

The availability of recovery all depends on the laws of your state. But in all of the tornado affected areas, there are means to deter and punish price-gouging. If you suspect that you are a victim of price-gouging, you can check out your state’s attorney general’s office, or consult a knowledgeable local attorney.

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Federal Child Pornography Law Costing States Real Money

The aim of the Adam Walsh Child Protection and Safety Act of 2006 is to protect children by forcing sex offenders to register, and making the sex offender registry publicly available. In the case of juvenile sexting, though, the “victim” and the “perpetrator” can be the same person. Registering teens as sex offenders and subjecting them to public shame further victimizes these kids.

This result is not something that anyone wants. But, there is money involved. So the decision to protect teens from harsh penalties for sex offenses becomes more difficult in cash strapped states.

States that do not comply with the federal law suffer a 10% loss of law enforcement grant money from the federal government. How much money is that?

Similarly, Florida receives almost $2 million for complying with the federal law.

Compliance comes at a cost though. The federal law requires states that wish to receive grant money to register juveniles as sex offenders for life, if they have committed an aggravated sex offense. This requirement includes registering children as young as 14.

Considering the diminished capacity of minors, the consequences of being registered as a sex offender, and the possibility of rehabilitation, the federal law is extreme.

To date, only four states have complied with the federal law: Florida, Ohio, Delaware, and South Dakota.

This February, South Dakota took a proactive approach that might allow them to keep the federal grant money without having to register teens for sexting. The legislature there considered a bill that distinguishes aggravated sexting from a lesser offense, and prohibits the state from registering minors as sex offenders “solely for committing the offense of juvenile sexting or aggravated juvenile sexting.”

Whether South Dakota’s approach would allow it to remain in compliance with the federal law is yet to be seen. If it works, that legislation might be adopted by other states, as they weigh concerns about funding against the futures of teens.