January 26, 2010
How could (or should) proposed spending freeze impact federal crime and punishment?As detailed in this New York Times article, which is headlined "Obama to Seek Spending Freeze to Trim Deficits," in his upcoming State of the Union Address "President Obama will call for a three-year freeze in spending on many domestic programs, and for increases no greater than inflation after that, an initiative intended to signal his seriousness about cutting the budget deficit." Here are more details:
The freeze would cover the agencies and programs for which Congress allocates specific budgets each year, including air traffic control, farm subsidies, education, nutrition and national parks.
But it would exempt security-related budgets for the Pentagon, foreign aid, the Veterans Administration and homeland security, as well as the entitlement programs that make up the biggest and fastest-growing part of the federal budget: Medicare, Medicaid and Social Security.
My first instinct is that the Department of Justice and other agencies involved in traditional federal law enforcement activities — other than terror-related homeland security — would be among the agencies and programs subject to a freeze rather than an exemption. I likewise assume that the federal judiciary and its various departments — ranging from the US Sentencing Commission to federal probation offices to federal defender offices — will also be subject to this proposed freeze.
I know many persons working in DOJ and the federal judiciary likely already feel their budgets are (too?) lean. I suspect that this proposed spending freeze, if it becomes a reality, could significantly alter who is working on federal crime and punishment issues and how they do their work. But, as the title of this post asks, it is not thereafter obvious if and how such budget-driven changes would impact federal crime and punishment. Perhaps fewer low-level immigration and gun and drug prosecutions? Perhaps greater emphasis on economic crimes and punishments? Perhaps some more serious discussion of marijuana legalization?
Judge Weinstein attacks Wall Street while sentencing with aid from a judicial sentencing panelA new sentencing story out of the Eastern District of New York, which is described in this New York Law Journal piece headlined "In Securities Dealer's Sentencing, Judge Blasts 'Corrupt' Wall Street Culture," includes a gut of exciting themes for a law geek like me. Here are excerpts:
In sentencing former Credit Suisse securities dealer Eric Butler to five years in prison, Eastern District of New York Judge Jack B. Weinstein has condemned "the pernicious and pervasive culture of corruption" on Wall Street.
"The blame for this condition is shared not only by individual defendants like Butler, but also by the institutions that employ them, those who carelessly invest, and those who fail to regulate," Weinstein wrote in the Statement of Reasons for the sentencing he issued on Friday in United States v. Butler, 08-cr-370.
"Supervision is seriously negligent; greed and short-term gain are so enormous that fraud and arrogant disregard of others' rights and of ethics almost encourage criminal activities such as defendant's," he said. In addition to the five-year sentence and three years of supervised release, Weinstein fined Butler $5 million, about $1 million more than Butler's estimated assets.
United States v. Butlermarked perhaps the first major criminal action stemming directly from the subprime crisis. Following a three-week trial, Butler was convicted in August of securities fraud, conspiracy to commit securities fraud and conspiracy to commit wire fraud for his role in a scheme to trick investors into purchasing high-risk and high-commission subprime securities....
Judge Weinstein dedicated a significant portion of Friday's eight-page statement [which is available here] to excoriating the culture of Wall Street....
The sentencing was also notable for Weinstein's use of an advisory panel of fellow Eastern District judges, an increasingly common practice in Brooklyn federal court since 2005 when the U.S. Supreme Court determined in United States v. Booker, 543 U.S. 220, that sentencing guidelines should be treated as advisory rather than mandatory. Although Weinstein declined to name the judges he consulted, the panel did include the Eastern District's chief judge, Raymond Dearie.
Dearie said in an interview Monday that he expects the use of advisory panels to become "fairly standard" in the Eastern District in the near future for difficult cases, such as those with broad or long guidelines, and as the imperatives of the pre-Booker guidelines recede.
In the present case, Weinstein wrote that he convened the advisory panel because "of the severe impact of defendant's frauds on the international short- and long-term securities markets, and other complexities presented by this sentencing." In addition to the unspecified number of judges, the panel included "an expert on sentencing guidelines from the court's Probation Department," Weinstein wrote.
In pre-sentencing arguments, the prosecution contended that Butler faced a statutory maximum of 45 years and a guidelines recommendation of up to life in prison. The advisory panel recommended six to 10 years. Butler requested probation. Weinstein settled on a five-year sentence.
"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."
Dearie said he knew of no other district court that regularly uses advisory panels, but that when he testified before the U.S. Sentencing Commission last year, the Massachusetts District Court seemed "very" interested in the concept.
Though the Wall Street smack-down is what makes the headlines here, I think true sentencing geeks like me are likely to get more excited and intrigued by the idea that the use of advisory sentencing panels may become "fairly standard" in the Eastern District in the near future for difficult cases. And, in the near future, I hope there will be full transparency about who is on these panels and how they make their recommendations.
"Why doesn't O'Malley clear death row?"The title of this post is the headline of this potent commentary by Charles Lane at the Washington Post, which wonders why the strong anti-death-penalty rhetoric coming from the Governor of Maryland has yet to turn into strong anti-death penalty action. The whole piece is a must-read, and here are excerpts:
Maryland Governor Martin O’Malley staunchly opposes the death penalty: Given its flaws -- the lack of deterrent impact, the risk of a wrongful execution, high costs -- capital punishment can be neither morally nor practically justified, he argues.
The issue moves him to eloquence. “Human dignity is the fundamental belief on which the laws of this state and this republic are founded,” O’Malley wrote in a 2007 Post op-ed. “And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.”
As governor, O’Malley supported the creation of a Maryland Commission on Capital Punishment, which called for the abolition of the death penalty based on racial bias and other alleged inequities in the Maryland death penalty. Brandishing those findings, the governor fought for an abolition law last year, falling just short of victory....
But I wonder: If O’Malley is so courageous, and this is such an issue of principle for him, why are there still five people on death row in Maryland? Why doesn’t he commute their sentences to life imprisonment, as Maryland’s constitution and laws empower him to do? It would certainly be a more permanent -- and forthright -- approach than this indirect foot-dragging routine with the lethal injection protocols....
When the governor visited The Post on Jan. 21, I asked him these questions -- ready for almost any response but the stunningly unconvincing one he actually gave. O’Malley suggested that there might be some technical problem with a simultaneous commutation of all five sentences. “I don’t know off the top of my head legally whether I’d be prohibited from doing the joint blanket commutation or not,” he mused, adding that “the best course to follow is to handle each case individually.”
Okay, a colleague ventured, what about doing them one at a time? O’Malley hemmed and hawed again, offering a defense of his anti-death penalty legislative efforts and taking credit for Maryland’s improving murder rate. “Of course part of my duties require me to evaluate requests for pardons, requests for commutations and other things, and I’ll handle them in the due course,” he concluded....
For the record, according to several experts on the subject with whom I spoke, nothing in Maryland law prohibits the governor from pardoning or commuting the sentences of any prisoner or prisoners he wants, for whatever reason he wants, whether or not the prisoner requests clemency first.
O’Malley’s inability to muster one plausible, principled reason not to commute the death sentences tells me that he’s playing politics. O’Malley’s liberal Democratic party base dislikes the death penalty. But, overall, voters in the state support it 53 percent to 41 percent -- and much of that support is concentrated in Baltimore County, a swing jurisdiction in statewide elections. Clearing death row might turn pro-death penalty voters against O’Malley and hurt his re-election chances this fall.
January 25, 2010
Shouldn't Javaris Crittenton be a Second Amendment hero rather than a sentenced zero?
Perhaps because I taught a Second Amendment seminar last semester, I keep noticing cases in which a person gets in big criminal justice trouble for keeping or bearing arms in a manner that would seem to be within the spirit (if not the letter) of the Supreme Court's blockbuster ruling in Heller. For example, I have previously suggested that celebrity defendants such as Plaxico Burress and rapper Lil Wayne and Delonte West might have viable Second Amendment defenses after facing gun possession charges.
Today, I think I've really found a potential celebrity Hellerposter-child in light of the facts brought forth in the prosecution and sentencing of the NBA's Javaris Crittenton (basics here). According to this press release from the US Justice Department, Gilbert Arenas threatened to "shoot Crittenton in the face" and Crittenton believed that Arenas intended to harm him." In reponse, Crittenton placed a "lawfully owned, unloaded handgun into his backpack" in Virginia and brought it into the Wizards' locker-room in DC on the day that "he believed that Arenas would carry out his threat to shoot him." In addition, Crittenton never loaded this gun nor otherwise brandished the firearm in a threatening manner when he had an encounter with Arenas in the Wizards locker room, and he return this unloaded gun to his backpack upon "deciding that Arenas did not intend to shoot him."
Because I take the the right of armed self-defense discussed in Hellerquite seriously, I want to commend Javaris Crittenton for exercising what would seem to be his Second Amendment rights in a terrifically responsible manner. But, problematically, the federal criminal justice system has just declared Javaris Crittenton a criminal, rather than a constitutional hero. I suspect that adamant opponents of the Second Amendment and the Hellerruling have no concerns about how Crittenton is being treated, but I am wondering if others who are not categorically opposed to gun rights share my sense that he has gotten a pretty raw deal.
Some related posts on other celebrity gun possession cases:
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- Rapper Lil Wayne cops a plea to New York gun possession charge
NBA player Javaris Crittenton quickly charged and sentenced for role in Wizards "gun fun"This press release provides the details concerning the swift (and sound?) form of justice administered to the other player involved in gun play with Gilbert Arenas last month in the locker room of the NBA's Washington Wizards. Here are the basics:
Javaris Crittenton, a 22-year-old member of the NBA's Washington Wizards, has pleaded guilty to a misdemeanor charge of possession of an unregistered firearm, U.S. Attorney Channing D. Phillips and Metropolitan Police Department Chief Cathy L. Lanier announced today. The guilty plea follows an investigation in which it was determined that Javaris Crittenton had brought a firearm to the Verizon Center in December 2009. This incident followed an argument Crittenton and teammate Gilbert Arenas had on a plane two days earlier.
Crittenton entered his plea this afternoon before Senior Judge Bruce Beaudin in the Superior Court for the District of Columbia. Following the guilty plea, Senior Judge Beaudin sentenced Crittenton to one year of unsupervised probation, and required Crittenton to perform community service through the NBA's Haiti project, and to further perform community service with a children's organization in Washington, DC.
"Possessing a firearm unlawfully in the District of Columbia can lead to nothing but trouble and can have serious consequences" said U.S. Attorney Phillips. "We commend Mr. Crittenton for accepting responsibility and hope he fully appreciates the gravity of his actions."
According to the factual proffer presented at the plea hearing, on Dec. 19, 2009, into the early morning hours of Dec. 20, 2009, Crittenton and Arenas became involved in a verbal exchange following a card game. In a heated exchange, Arenas stated he was too old to fistfight and threatened to shoot Crittenton in the face. Crittenton responded that he would shoot Arenas in his surgically-repaired knee. On the shuttle bus from the airplane to the terminal, Arenas further stated that he was going to burn or blow up Crittenton's car when they came to practice the following Monday. According to Crittenton, he believed that Arenas intended to harm him.
On Dec. 21, 2009, at approximately 9:00 a.m., Crittenton arrived at the Verizon Center, 601 F Street N.W., Washington, D.C., to receive medical treatment and attend Wizards' practice. According to Crittenton, before he left his home in Virginia for practice that day, Crittenton had placed a lawfully owned, unloaded handgun into his backpack because he believed that Arenas would carry out his threat to shoot him that day....
There is no evidence that Crittenton's firearm was loaded when he pulled it out of his backpack or that Crittenton ever loaded the firearm with ammunition. There also is no evidence that Crittenton ever chambered a round, pulled back the hammer, raised or pointed the firearm, or otherwise brandished the firearm in a threatening manner at any time during this incident. After deciding that Arenas did not intend to shoot Crittenton at that time, Crittenton placed his firearm back in his backpack and went from the locker room to the trainer's room.
Based on these "offense facts" as set forth in this press release, it sounds as though Crittenton could and should be a poster child for asserting a Second Amendment defense to his criminal charges in light of the Supreme Court's recognition of an armed self-defense right in Heller. Of course, the ruling in Helleris formally limited to the home. Yet its logic and principles would seem to support a claim that Crittenton's behavior in this incident was constitutionally protected.
In a subsequent post, I will pose the question of whether Crittenton's actions should be constitutionally protected ni light of Heller. In this post, I just wish to note how this case provides a great example of why many criminal defendants, even those with money to hire the best lawyers, will not often be eager to pursue all their potential constitutional defenses. Like many criminal defendants, Crittenton obviously wants to put this matter behind him ASAP. Consequently, rather than invest time and expenses raising a (very plausible?) Second Amendment defense to the charges (or even to enter a conditional plea), Crittenton apparently was eager just to get a deal done and try to move on.
Moving on, it will be interesting to see how this plea deal and the facts set out in this press release might impact Gilbert Arenas's fate at his scheduled March sentencing. Professor Michael McCann is already commenting thoughtfully on this front in this new SI column, which is headlined "Crittenton's plea agreement on gun charges could affect Arenas' future."
Lots of good reading around the crim law blogosphere...
at many of my favorite criminal law blogs, including:
California Corrections Crisis (with recent favorite "GPS Monitoring: Now Expanded to Include Gang Members")
- Prison Law Blog (recent fav "New Jersey Prisoner Alleges He Was Subjected to a Fake Electrocution")
SCOTUS grants cert on another mandatory minimum sentencing issue
Adding to a docket that is already heavy with important sentencing cases, the Supreme Court this morning added another through its cert grant the consolidated cases of Abbott v. United States (09-479) and Gould v. United States (09-7073). Here is how SCOTUSblog decribes the issue in Abbott, along with links to key materials in the case:
Title: Abbott v. United States
(1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?
As federal criminal justice practioners know, the mandatory minimum sentencing provisions in 924(c) concerning the use of firearms in connection with other offenses are extremely significant and consequential. It is unclear if Abbott and Gould could have a broad impact in other cases, but they clearly present yet another important set of cases to watch over the next few months.
SCOTUS decides to dodge reconsideration of big confrontation clause issues
Many criminal justice court-watchers were keeping a close eye on this term's seemingly big Sixth Amendment confrontation clause case, Briscoe v. Virginia, based on the notion that the case would give the Justice a new opportunity to examine la st year's controversial, 5-4 decision in Melendez-Diaz v. Massachusetts. But SCOTUS issued an opinion in Briscoe this morning that suggests that the Justices decided a dodge rather than a reconsideration is more appropriate right now. Here is the full text of today's per curiam opinion in Briscoe:
We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).
Of course, as astute readers know, the Sixth Amendment's confrontation clause does not even technically apply in sentencing proceedings, so this is not formally a sentencing issue. But it does provide another interesting tea leaf concerning how the addition of (former state prosecutor) Justice Sotomayor to the Supreme Court may (or may not) change how the Court does criminal justice business.
What can and should be done about Pennsylvania's decade-long moratorium on executions?This new piece in the Pittsburgh Post-Gazette, which is headlined "Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999," raises the question in the title of the post. As the start of the article highlights, Pennsylvania's Governor continues to sign death warrants despite recognizing that the state has had a de facto moratorium on executions for more than a decade:
Richard Baumhammers and Ronald Taylor have a lot in common. Both are racially motivated mass killers who slaughtered innocents within a month of each other a decade ago, Mr. Baumhammers targeting minorities and Mr. Taylor targeting whites. Both are on death row. And neither is likely to be executed for many years, if ever.
Gov. Ed Rendell signed a death warrant for Mr. Baumhammers, 44, last week, but he admitted the execution isn't likely to happen on March 18, the scheduled date for lethal injection. That's because the state has what the governor calls a "de facto" moratorium on executions.
The governor has signed 101 death warrants, including one for Mr. Taylor in 2006. But the state hasn't killed anyone since Gary Heidnik in 1999. More than 220 prisoners are on death row statewide.
It strike me as problematic and irresponsible (not to mention expensive) for the executive branch in Pennsylvania to keep pursuing death sentences and signing death warrants if it is now a legal and political given that the state will never be able to actually carry out an execution. Indeed, there are reasons to suspect and fear that juries in Pennsylvania may be more likely to return a death verdict based on the (apparently reasonable) assumption that no defendant will actually ever again be executed in the state.
Of course, if state and federal judges are truly dead set against letting any Pennsylvania murderers get to the death chamber, there may little that the executive or legislative branch in Pennsylvania can do to alter these realities. But, as the question in title of this post is meant to suggest, I suspect that Keystone State legislators and executive official could probably do something to try to break this harmful capital punishment log-jam. And perhaps readers can use the comments to make some suggestions for those (few? many?) Pennsylvania lawmakers and officials who may be truly troubled by the state's decade-long de facto moratorium on executions.
"The Virginia debate: Should marijuana be decriminalized? legalized?"
The title of this post is the headline given by The Daily Press newspaper to this archive of recent articles and commentaries about debates in Virginia concerning marijuana crimes and punishment. Here are the headlines, with links and summaries, from some of the pieces in the archive:
Va. lawmaker proposes medical marijuana bill: Del. Harvey B. Morgan acknowledges he might not seem a likely proponent of decriminalizing marijuana and making the drug available medically. He's 79, a Republican and he's never touched the stuff.
Where the newspaper stands: Decriminalizing marijuana makes sense and will free up police and courts to deal with real crimes: The bill was introduced by a bow-tie wearing, Republican, Virginia gentleman. Not by an aging hippie or a street-corner drug merchant.
Virginia should legalize marijuana: It's not just "left coast" states like California and Washington that are considering marijuana law reforms to help balance state budgets. For the first time in years, the Virginia General Assembly will consider common-sense marijuana law reform. House Bill 1134 would replace criminal penalties for simple marijuana possession with a civil penalty of $500.
Federal judge rejects plea with long sentencing recommendation because it is not long enoughThis New York Times article from late last week, which is headlined "Plea Rejected in Case of Hepatitis Infections," spotlights the role that victims can sometimes play in getting sentencing judges to reject plea deals even when they include significant terms of imprisonment. Here are the details:
Suggesting that 20 years in prison was not enough punishment for the crime, a federal judge on Friday rejected a plea agreement for a former hospital technician and drug user who admitted that she exposed hundreds of patients in her care to hepatitis C.
The judge, Robert E. Blackburn, said the agreement with the former hospital worker, Kristen D. Parker, inordinately restrained his discretion and did not take into account the views of victims, many of whom submitted anguished written statements. It is unusual, legal experts said, for a judge to reject a plea agreement.
Ms. Parker, 27, admitted to the police on videotape that while working at Rose Medical Center in Denver in 2008 and 2009, she stole pain-medication syringes from operating room trays, replacing them at times with needles she had already used to inject herself with heroin.
Seventeen Rose patients have so far been found to have a strain of hepatitis C linked through genetic sequencing to the strain in Ms. Parker’s blood, according to the Colorado Department of Public Health and Environment. Hepatitis C affects liver function and can have lifelong consequences.
Ms. Parker’s lawyer, Gregory C. Graf, said he had not consulted yet with his client but expected she would probably persist with her guilty plea, giving the judge discretion as to her sentence when the case reconvenes next month. Ms. Parker could also change her plea to not guilty and insist on a jury trial, or try to reach another plea agreement with prosecutors.
Judge Blackburn warned Ms. Parker in the brief hearing in Federal District Court, before a courtroom packed with former Rose patients and their families, that if she chose to continue with her guilty plea, the sentence could be stiffer. “I may dispose the case less favorably,” Judge Blackburn said....
A lawyer representing 13 of the Rose hepatitis patients, Hollynd Hoskins, also specifically argued to Judge Blackburn that the United States attorney’s office was not adequately consulting with her clients as required by the [federal Crime] Victims Rights Act.
The United States attorney for Colorado, David M. Gaouette, in a statement on Friday, said, “The victim issues are vitally important in this case and we will continue to work closely with them to ensure their voices are heard.”
January 24, 2010
"State must put 'death' back in death row"The title of this post is the headline of this new commentary in the Sacremento Bee that is authored by David E. Brown, a former commissioner and chief counsel of California's Parole Board. Here are a few excerpts:
Admittedly, California's death penalty is not perfect and probably could never be reformed to the extent that it could always be applied in a fair and just manner. The problem, however, with California's death penalty is its inability to carry out executions following convictions and sentences. California leads the nation with more than 600 inmates on death row, but only 14 have been executed since the reinstatement of the death penalty in 1978. A person sentenced to death in California is more likely to die of old age or natural causes than to be executed.
The opponents of the death penalty, in calling for its abolishment, ignore the victims of murderers and the right of society to protect itself from future crimes by convicted murderers. There have been cases in California of persons sentenced to death who were subsequently paroled only to murder again. I have personal knowledge of such cases.
As a result of highly publicized murders by murderers released on parole, California voters have consistently voted to support the death penalty. Originally restored by voters' initiative in 1977, every subsequent measure to expand the provisions of the death penalty, most recently the gang-murder special circumstance in March 2000, has been overwhelmingly approved by the voters.
Because of the judicial system's failure to approve executions, the death penalty in California has become a de facto life-without-possibility-of-parole sentence. While California's death penalty is far from perfect, there are some crimes that are so egregious that any punishment less than death would be inadequate as a matter of basic justice. There are also certain situations where the death penalty may be morally required to prevent the taking of an innocent life.
Perhaps the only truly notable aspect of this relatively standard defense of the death penalty is the background of its author. But I am also drawn to this commentary because my Fordham sentencing seminar is about to begin a death penalty unit, and it is intriguing and remarkable how the author of this commentary mixes a melange of traditional death penalty justifications (s well as their obvious counter-arguments) in a few paragraphs.
Incapacitation, democratic theory and retribution all get some understandable attention in this defense of the death penalty by Mr. Brown. But his description of California death sentences as now a "de facto life-without-possibility-of-parole sentence" suggests that his concerns about future crimes by parolees can be handled without executions. Moreover, his initial concession that California's capital system will probably never be applied in a "fair and just manner," would seem to at least partially undercut arguments based in democratic theory and retribution. I would question the claim that California voters support a capital punishment system that necessarily will be applied in an unfair and unjust manner, and I also think most Kantian retributivists who view executions as a matter of "basic justice" would at least worry about whether such basic justice is truly served by a punishment that is distributed in an inherently unfair and unjust manner.
I make thiese point neither to praise or criticize Mr. Brown's commentary in particular, but rather just to note and lament the fact that political and public discourse concerning the death penalty remains so simplistic. I also look forward to seeing what might Fordham students say about this commentary in our seminar.
A crappy case concerning prisoner poo before New Hampshire Supreme CourtThough easily the basis for a lot of bad dirty jokes (as this post has already excreted), this story from the The Concord Monitor actually raises a host of interesting legal issues concerning prison conditions and criminal assaults. (Potty tip: How Appealing.) The piece is headlined "Prison waste is matter for court; Justices to rule if feces on floor equals assault," and here is how it gets started:
It's a crime for inmates to throw feces, urine and blood at jail and prison staff. The question before the state Supreme Court is whether throwing it on the floor for staff to clean up also qualifies as assault. A lower court has said no. The state attorney general's office says yes and has asked the high court to decide. Meanwhile, prison and jail officials are watching.
"This is part of daily life we have to be on guard for," said Jeff Lyons, spokesman for the state's prisons. He said officers deal with inmates throwing their bodily fluids several times a year, most often in maximum-security units. "You never know when it's going to happen."
Lawmakers passed the current law forbidding the throwing of bodily fluids in 2000 at the request of prison officials tired of being targeted by inmates. During legislative hearings on the bill, corrections officers described being spit on, being soaked with the contents of a colostomy bag, and having urine thrown in their eyes and mouth.
"We are talking about some kind of behavior that borders on animalistic," Denis Parker, then of the State Employees' Association, told lawmakers at the time. "And more than that, we are talking about potential dangers of getting some real infectious dangerous disease that could probably at some point take your life."
But what if the corrections staff isn't actually hit? The question before the state Supreme Court involves six inmates from the Hillsborough County jail who were indicted in 2009 on several counts of assault by prisoner. The indictments allege the six men committed assault by throwing feces and urine on the jail floor for corrections staff to remove.
The law under which they were charged says it is illegal for inmates to "harass" corrections staff by causing or attempting to cause "employees to come in contact with blood, seminal fluid, urine or feces by throwing or expelling such fluid or material." Attorneys from the Hillsborough County Attorney's Office argued the men's actions qualified as assault because the men intended to harass the jail staff and knew employees would come into contact with the fluids when they cleaned the floor.
The men, Timothy Spade, Ralph Carey, Jarrell Wilson, Jason Connolly, Ryan Freeman and Peter Gibbs, challenged the charges in superior court. Their lawyers argued the indictments did not adequately allege how jail officers had actually come into contact with the fluids. They also criticized the assault law and its use of the word "contact" as too vague. The lawyers asked the court to dismiss the charges against all six men.