Posts Tagged ‘law enforcement for profit’

Law enforcement for profit roundup

Not unconstitutional for county to jump off probation-for-profit carousel

“Craighead County, Arkansas officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees. (On one day in 2016, of 34 defendants brought to court, only six were charged with crimes. The remaining 28 were in jail for failing to pay the company.) Voters elect new judges who promise to cease using the company, erase outstanding debts. Company: Which violates the Contracts Clause, Takings Clause. Eighth Circuit: Can’t sue the judges over that. The judges are entitled to modify probation conditions and discharge debts.” [John Ross, Institute for Justice “Short Circuit” summarizing Eighth Circuit ruling in Justice Network v. Craighead County]

Prosecution roundup

  • Let justice be done: conviction integrity units “operate within prosecutors’ offices to investigate old cases for errors or misconduct that may have led to a wrongful conviction.” [C.J. Ciaramella]
  • “Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He’s detained for 13 years before he’s finally acquitted in a third trial. And this happens because the state lied about an ‘utterly unqualified’ assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there’s so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.” [Institute for Justice “Short Circuit” on Camm v. Faith]
  • In the new 2018-19 term Cato Supreme Court Review, Anthony J. Colangelo writes about Gamble v. U.S., the dual-sovereignty double jeopardy case;
  • “Baby’s Death in Mother’s Bed Leads To 5-Year Prison Term. But Was It Her Fault?” [Cassi Feldman, The Appeal]
  • Seattle: “King County Took Money From an Anti-Prostitution Organization. Then ‘Unprecedented’ Felony Prosecutions of Sex Buyers Began.” [Sydney Brownstone, The Stranger last year; more (judge rejects disqualification motion)]
  • So it does happen: court denies prosecutor absolute immunity for withholding exculpatory evidence [Penate v. Kaczmarek, First Circuit]

Law enforcement for profit roundup

Fifth Circuit: basing judges’ fund on fines and fees violates due process

Orleans Parish, Louisiana (= county, in this case coterminous with the City of New Orleans) funnels the revenue from many criminal fines and fees into a judicial services fund which, while it does not pay judges’ salaries, does cover many related expenses including staff salaries, conferences and office supplies. Judges themselves help determine the volume of inflow to the fund by their rulings in cases. Now a unanimous Fifth Circuit panel has ruled that given the fund’s substantial dependence on such revenue, the parish “failed to provide a neutral forum” and thus violated defendants’ constitutional right to due process [Nick Sibilla/Forbes, ABA Journal; opinion in Cain v. White]

After a mechanic took it on an unauthorized ride, Chicago impounded her car. And then….

Her car was in the shop for work when a mechanic drove it on an expired license. What the city of Chicago did to her then shouldn’t happen to anyone [Elliott Ramos, WBEZ/ProPublica, Institute for Justice on its suit representing Veronica Walker-Davis and Jerome Davis, earlier]

An especially outrageous angle from an earlier Ramos/WBEZ story, quoted in our earlier coverage: “Chicago has impounded and sold off nearly 50,000 cars for unpaid tickets since 2011. Not a dime of the sales went toward the ticket debt; instead, the city and its towing contractor pocketed millions.”

“The secretive nonprofit that made millions suing companies over cancer warnings”

Beth Mole at ArsTechnica takes a look at “a little-known nonprofit called the Council for Education and Research on Toxics (CERT),” which sued over the lack of California cancer warnings on coffee and has filed many other Prop 65 suits, and its lawyer Raphael Metzger, whom longtime Overlawyered readers have met before. While the organization’s workings have seldom come under scrutiny, one money trail appears to lead to epidemiologist Martyn Smith at Berkeley’s School of Public Health; neither professor nor school responded to Mole’s requests for comment.

Judge: holding “Cops Ahead” sign to warn motorists may be protected speech

“The cop actually hauling him to the station [for warning motorists that there were cops ahead] was more to the point, telling the man he was arresting him for ‘interfering with our livelihood,'” according to the complaint in the subsequent lawsuit. [Tim Cushing, TechDirt; Stamford, Ct.] We covered a similar ruling in Florida in 2012.

Elizabeth Warren on white-collar prosecution — and what to do instead

My new piece at Cato, citing Carissa Byrne Hessick and Benjamin Levin at Slate, discusses Sen. Elizabeth Warren’s proposal to lower the standard for criminal culpability in many white-collar prosecutions to simple negligence. It begins:

Presidential candidate and Sen. Elizabeth Warren (D-Massachusetts) wants to see more business people behind bars, and she’s not fussy about how to make that happen. In a Washington Post op-ed last week she unveiled a new Corporate Executive Accountability Act, which in her words would expand “criminal liability to any corporate executive who negligently oversees a giant company causing severe harm to U.S. families.” She says she wants top executives to know that they can be (again in her own words) “hauled out in handcuffs for failing to reasonably oversee the companies they run.”

And ends:

The civil courts already hear many thousands of cases seeking damages over claims that serious harm arose from industry conduct that falls short of being reckless or deliberately wrongful. Not infrequently – as with claims over supposed “sudden acceleration” in cars, cancer from Roundup, and autoimmune disease from silicone breast implants – large sums get paid even when science finds no basis for concluding the products caused the harms alleged, such is our legal system’s tendency to tilt against business defendants as unsympathetic. Under the Warren standard, complaints that driverless cars have gotten into avoidable accidents or vaccines have caused side effects – maybe even that cheeseburgers, supersize sodas, and margaritas have worsened the harms of obesity – will put business people at risk for long prison terms. To her backers, will this count as a bug? Or a feature?

Aside from the propriety of criminalizing simple negligence, the issue is not so much that individuals as such are the wrong target for white-collar prosecution — as Stephen Bainbridge has argued, holding them personally culpable will often make more sense than prosecuting the corporate entity — as that notions of collective guilt must not be used to impute criminal culpability to others within an organization not proved to have committed wrong acts or acted with wrong mind. While the Warren proposal would march off in the wrong direction, in the Cato Handbook for Policymakers two years ago,
I contributed a chapter on white-collar prosecution with the following recommendations:

Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should

  • review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible;
  • enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law;
  • codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015;
  • devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law;
  • limit agency discretion to create new crimes without an act of the legislature;
  • enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say-so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision);
  • enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R-WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture; review and, where appropriate, reduce or coordinate per offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct;
  • prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured;
  • assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight);
  • prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated; and
  • impose transparent principles of selection and payment on outside contracting for legal services.