Monday, September 30, 2013
How common are DVD submissions as mitigation evidence as part of federal sentencing?The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:
Laurienti claims for the first time on appeal that the district court committed plain error when it did not read the last two pages of his sentencing memorandum or view a DVD he had submitted. We review these contentions under the same plain error standard applicable to his claim that the district court did not listen to his evidence in mitigation. We reject these contentions for two reasons.
First, the court provided Laurienti the opportunity to present the substance of those materials during sentencing. Laurienti did so, and the court listened to his position.[FN7]
Second, and more importantly, the court explained why further considering those materials would not change its decision. The court specifically stated that it had reviewed numerous letters from Laurienti’s family, friends, and business associates. The court did not, however, find these materials persuasive in light of Laurienti’s apparent attempts to avoid making restitution payments. Considering the cumulative nature of the DVD, and the fact that the court allowed Laurienti to discuss his sentencing position at length, Laurienti has failed to establish that the court’s refusal to consider the exhibits amounted to plain error requiring reversal.
[FN7] We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, “An ounce of prevention is worth a pound of cure.”
Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion. This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).
A few prior related posts:
- Interesting sign of the modern high-tech sentencing times
- "Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"
September 30, 2013 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, September 24, 2013
Documenting the enduring challenges of reentry for parolees and society in Colorado
The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:
Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:
Predicting who will murder is now a science. In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.
The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania. "It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."
The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.
In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said. The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.
Pennsylvania is expected to apply the software for all parolees by the end of the year. Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.
A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles. Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.
Sunday, August 18, 2013
"Some prisons let inmates connect with tablets"The title of this post is the headline of this new USA Today article, which provides an effective overview of one interesting recent technocorrections development. The subheading of the piece is "Proponents say allowing inmates to use tablets will help reintegrate them into society and keep them from returning to jail." Here are excerpts:
Ohio became the latest state last month to allow inmates to purchase and use mini-tablet computers while incarcerated — a controversial move intended to better connect those in jail with their families and friends on the outside.
At least six other states, including North Dakota and Georgia, permit the practice, which proponents say will deepen prisoners' ties to their communities and keep them in sync with modern technology. "We have anticipation and hope to make it a good educational tool," said Ricky Seyfang, spokeswoman for the Ohio Department of Rehabilitation and Correction.
Opponents are concerned the tablets will be used for illegal activities or brandished as weapons. "Our challenge is always how we give inmates the exposure to these tools while protecting public safety at the same time," said Douglas Smith III, chief information officer for the Florida Department of Corrections. Florida launched a pilot program last year to test Kindle devices for inmates.
Victims' rights groups say the devices make public safety increasingly difficult to achieve. Kristy Dyroff, director of communication at the National Organization for Victim Assistance, said there is the potential for "unrestricted and unsupervised outreach where inmates can revictimize or continue to intimidate victims."...
In the seven states that allow the tablets — Louisiana, Virginia, Michigan and Washington are the four others — inmates or their family members can purchase a $49.99 mini-tablet that allows them to send e-mails and listen to music, according to Tara Bertram, vice president of marketing at JPay, a mini-tablet vendor. The e-mails and any included attachments can be monitored by the state's department of corrections or the individual facility.
Jesse Jannetta, a senior research associate at the Urban Institute, said expanded technology access in prisons could help inmates transition into their communities — and keep them there — if the devices are used to contact family and potential employers. "It can be hard to build connections to people or organizations they'll be interacting with," Jannetta said.
Jannetta and others caution that tablets, like cellphones, can also breed criminal activity.... "Prisons have trouble containing all sorts of things," said Robert Coombs, spokesman for the National Reentry Resource Center. "You're dealing with folks who probably want to break some rules."
JPay tries to minimize that risk by loading only limited functions, such as music and gaming, on to its tablets. The decision to allow the devices in prisons is made by state corrections departments, Bertram said.
Another vendor, Keefe Group, launched an MP3 player and music download service for prisoners in 2009. The service netted more than 1 million downloads a year after it was introduced, according to a news release on its website.
This month, Maryland Attorney General Douglas Gansler advocated for giving Android tablets to prisoners as a solution to close the "revolving door" of ex-offenders returning to jail. The Democratic gubernatorial hopeful said inmates would be allowed access to e-books, the state's library system, law resources and educational applications. Limited e-mail capability would also be offered.
That proposal could draw concern from taxpayers skeptical of investing more resources in jails. The average per-inmate cost a year is $31,286, ranging from $14,603 in Kentucky to $60,076 in New York, according to the Vera Institute, a research group focusing on justice systems. "When you're talking about buying individual pieces of technology and distributing them, it can be very controversial," Jannetta said.
As technology becomes increasingly embedded within society, some experts say its placement in more prisons is inevitable. "For us to expect inmates will possess the skills necessary to survive in the free world, we'll have to come to the realization they'll have to use these things," Smith said.
Recent related posts:
Wednesday, August 07, 2013
Should prisoners all get iPads?The question in the title of this post is prompted by this intriguing Baltimore Sun story, which is headlined "Gansler proposes tablet computers for inmates: Gubernatorial hopeful says idea would help keep offenders from returning to jail." Here are the details:
Maryland Attorney General Douglas F. Gansler pushed a novel solution Monday for closing what he called the "revolving door" of ex-offenders returning to prisons.
Give inmates tablet computers.
As Gansler envisions it, the proposal would help offenders build both education credentials and social support before they leave prison. The gubernatorial hopeful says the wireless devices would replace brick-and-mortar libraries and classrooms in the state's prison system, providing each inmate with an Android tablet that could connect with e-books, the state's library system, law resources and online learning programs.
They would also allow limited — and monitored — email access, so inmates could connect with family members. "It has to work," Gansler said. "It's common sense that it will work."
The tablet idea is one element of Gansler's 10-part proposal for integrating former inmates into communities. Statistics show that roughly half of the offenders who are released will return to the state's prison system within three years. The most recent state data available puts the rate at 43 percent. Gansler, who presented his plan in Baltimore at the latest in a series of meetings outlining his platform for governor, called the state's approach to re-entry a "policy mess."
The Android proposal drew concern from some in the corrections world, particularly in light of the recent federal indictment of a dozen Baltimore City Detention Center guards, who are accused of smuggling in cell phones to help the Black Guerrilla Family gang run a drug ring.
"There's a lot of challenges with providing Internet access to inmates," said Nancy G. La Vigne, director of the Justice Policy Center at the Urban Institute. "There's a real concern — I think a valid one — that access to the outside can threaten both inmates and staff.
"While it's innovative to think about delivering education with new technology, a lot of things need to be sorted out."
In a presentation to the Corrections Technology Association in June entitled "iPads for Inmates", the Virginia firm HomeWAV LLC listed what it said were the positive benefits: social and job skills, mentoring and rehabilitation. The cons: "gangs," "nudity," "corruption."
"It's a fascinating concept," said Robert Coombs, spokesman for the National Reentry Resource Center, a policy group.
Only a few inmates in Maryland have Internet access, state corrections spokesman Rick Binetti said. All are low-security, pre-release inmates who are permitted to use the Internet only to look for jobs, and only under the direct supervision of correctional officers.
Several states have set up Web kiosks that give limited access to inmates. A company called JPay sells a $49.99 mini-tablet to inmates in prisons in Virginia and Louisiana. Access is limited to music, games and a few other applications.
A New York startup called American Prison Data Systems has been shopping the idea of an indestructible 7-inch Android tablet that states would purchase for inmates' personal use. CEO Christopher Grewe said he expects to finish negotiating pilot projects in three states by the end of 2013. He proposes giving one to each inmate in a low or medium-security prison to limit potential fights. He said they would be designed so that they couldn't be converted into weapons. Each device would come with free access to libraries and legal resources, and cost $500 per year per inmate.
Maryland spends an average of $38,383 per year per prisoner, the Vera Institute of Justice reported last year. Grewe has pitched his idea as a way for states to improve education opportunities for inmates and save money on maintaining expensive classrooms and libraries....
Grewe said that algorithms and a 24-hour center in Ohio would scan all outgoing and incoming email on a 12- to 24-hour delay, and that devices could be heavily restricted or shut off remotely. "We can filter it five ways to Sunday," he said. Prisons, he said, "can't postpone dealing with the digital revolution any longer."
Gansler, in pitching his idea to a room full of people who work with offenders, suggested anyone who has seen the Oscar-nominated film "The Shawshank Redemption" knows libraries can be used as a means of transporting contraband. Replacing them with more secure tablets, he said, would save money and make sense.
"We have the ability in the 21st century to educate children online," Gansler said. "You can learn a language online. … Why can't we educate our offenders?"
Tuesday, July 30, 2013
Intriguing AP review of the challenges of GPS tracking
The AP has this intriguing piece of new reporting on a (too?) popular modern form of technocorrections. The piece is headlined "Some Ankle Bracelet Alarms Go Unchecked," and here are excerpts:
Three decades after they were introduced as a crime-fighting tool, electronic ankle bracelets used to track an offender's whereabouts have proliferated so much that officials are struggling to handle an avalanche of monitoring alerts that are often nothing more sinister than a dead battery, lost satellite contact or someone arriving home late from work.
Amid all that white noise, alarms are going unchecked, sometimes on defendants now accused of new crimes. Some agencies don't have clear protocols on how to handle the multitude of alerts, or don't always follow them. At times, officials took days to act, if they noticed at all, when criminals tampered with their bracelets or broke a curfew....
Twenty-one agencies that responded to the AP inquiry logged 256,408 alarms for 26,343 offenders in the month of April alone. It adds up for those doing the monitoring. The 230 parole officers with the Texas Department of Criminal Justice handled 944 alerts per day in April. The Delaware Department of Correction, which has 31 field officers, handled 514 alarms per day....
Sorting through alerts, and deciding which are serious enough to merit a rapid response, can be fraught with peril....
Supporters of electronic monitoring say [violent crimes by monitored offenders who set off alarms and other] tragedies are the exception and that the devices are a valuable tool for authorities who previously relied only on shoe leather and the telephone to keep tabs on released prisoners. In many cases involving violence by people on trackers, the accused likely would have been free on bail or parole even if electronic monitoring didn't exist, and would have been far harder to monitor.
"No one should think this is going to be 100 percent effective," said George Runner, a former California legislator who wrote that state's voter-approved law requiring bracelets for all paroled sex offenders. "It's just a tool. When used, and used effectively, it can be not only helpful in modifying behavior, but we've heard stories about it actually preventing crimes."
Once used to track straying cows, electronic monitoring of criminals debuted in 1983, when a New Mexico judge inspired by a Spider-Man comic book allowed a man who violated probation to wear an ankle bracelet rather than go to jail. Use took off in the last decade, as technology improved and lawmakers became enamored of trackers as a cost-effective alternative to incarceration and a way of monitoring sex offenders for life.
Today, 39 states require monitoring of sex offenders. The biggest user of ankle bracelets is the federal government, which tracks people on pretrial release and probation, as well as thousands of immigrants fighting deportation....
"It's virtually impossible to sit there and track a person all day," said Kelly Barnett, a union official who represents probation officers doing GPS tracking in Michigan. Barnett said that while officers see value in the monitoring, such programs also give "a false sense of security to the community."
Studies have found mixed results on the devices' value as a crime deterrent. Bill Bales, a criminology professor at Florida State University, said he believes they are beneficial. Offenders wearing them tend to stay home more with their families. "They're glad to be in the free world, albeit tethered, rather than in prison," Bales said.
The key to making the devices work, he and other experts said, is to figure out how best to process the immense amounts of information they generate.
Tuesday, July 02, 2013
Released sex offenders in Great Britain soon to be required to take regular polygraph testsAs reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program. The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:
MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.
The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.
Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.
The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.
The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.
The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.
"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."
Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.
Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.
I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring. That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.
Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty. For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).
July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack
Monday, June 17, 2013
"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl. Here is the abstract:
Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.
Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).
For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.
Tuesday, June 11, 2013
Documenting problems with using electonic tracking for crime control in ColoradoThe Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring. Here are exceprts:
One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.
Another parolee disappeared from his motel the day he was tethered to an electronic monitor. He now is charged with raping two women and attempting to rape another. A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.
Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble. A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.
Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts. Monitors are strapped to their ankles and receivers installed in their residences. In the most serious sex-offender cases, parolee movements are tracked by a GPS system.
But problems arise. Batteries run down. Plugs get ripped from wall sockets. The systems go dark. The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....
Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case. Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.
"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...
Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them. Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.
Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders. In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement. There are currently more than 800 Colorado parole absconders....
The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.
Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.
In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."
He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."
Tuesday, May 21, 2013
"Colorado Department of Corrections to Pilot Telemedicine for Prisoners"The title of this post is the headline of this interesting report, which starts this way:
In June, the Colorado Department of Corrections (DoC), in partnership with Denver Health Medical Center, will launch a pilot project designed to treat inmates using telemedicine. Doctors will start by providing consultations in areas like rheumatology, orthopedics, infectious disease and general surgery. Nineteen correctional facilities will participate in the pilot.
Driving prisoners to the hospital can be costly. Transportation usually happens after hours, which means that the DoC has to pay overtime wages to security officers. Also, prisoners could potentially escape during the trip. "The program improves accessibility to specialty care, and there’s been some use cases throughout the U.S. about inmates escaping, so this decreases the risk," explained Chris Wells, who is director of health IT architecture for Colorado's Governor's Office of Information Technology.
Tuesday, May 14, 2013
In praise of NTSB seeking to save more innocent lives with tougher DUI lawsI was very pleased to see the news today, like this report from CNN, concerning a new recommendation to lower the level at which a driver is to be considered over the limit. Here are the details:
A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.
The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving....
The idea for a tighter standard is part of a safety board initiative outlined in a staff report and approved by the panel to eventually eliminate drunk driving, which accounts for about a third of all road deaths in the United States.
Hersman said progress has been made over the years to reduce drunk driving, including a range of federal and state policies, tougher law enforcement, and stronger advocacy. But she said too many people are still dying on America's roads. The board acknowledged that there was "no silver bullet," but that more action is needed at the federal and state levels.
"In the last 30 years, more than 440,000 people have perished in this country due to alcohol-impaired driving. What will be our legacy 30 years from now?" Hersman asked. "If we don't tackle alcohol-impaired driving now, when will we find the will to do so?"
Lowering the rate to 0.05 would save about 500 to 800 lives annually, the safety board said....
The NTSB investigates transportation accidents and advocates on safety issues. It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress. But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide. States set their own BAC standards.
The board also recommended on Tuesday that states vastly expand laws allowing police to swiftly confiscate licenses from drivers who exceed the blood alcohol limits. And it is pushing for laws requiring all first-time offenders to have ignition locking devices that prevent cars from starting until breath samples are analyzed.
In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication. But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004.
The number of alcohol-related highway fatalities, meanwhile, dropped from 20,000 in 1980 to 9,878 in 2011, the NTSB said. In recent years, about 31 percent of all fatal highway accidents were attributed to alcohol impairment, the NTSB said....
The NTSB cited research that showed most drivers experience a decline in both cognitive and visual functions with a BAC of 0.05. Currently, more than 100 countries on six continents have BAC limits set at 0.05 or lower, the safety board said. The NTSB has asked all 50 states to do the same.
A restaurant trade association, the American Beverage Institute, attacked the main recommendation, saying the average woman reaches 0.05 percent BAC after consuming one drink.... A beer industry trade group said it would examine NTSB's recommendation for lowering the blood-alcohol threshold. "However, we strongly encourage policymakers to direct their efforts where we know we can get results: by focusing on repeat offenders and increasing penalties on those with BAC of (0.15) or more," said Joe McClain, president of the Beer Institute....
The NTSB recommended last December that states require ignition interlocks for all DUI offenders and said states should improve interlock compliance.
I concur with the recommendation coming from the Beer Institute that states get tougher ASAP on repeat drunk drivers and those caught driving with high BACs. But I think that should be done in addition to defining the legal limt for BAC lower, coupled with technological sanctions for first offenders. Specifically, as I have often noted in prior posts, states that require ignition locks for convicted drunk drivers have seen a marked decline in highway fatalities. Unless and until someone can prove to me that tipsy driving is more valuable than innocent human lives, I will praise any and all efforts by NTSB and others to do everything reasonable to reduce the harms of drinking and driving.
Some related posts on sentencing drunk drivers and advocacy for ignition locks:
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
- Effective commentary complaining about undue leniency for drunk drivers
- Alcohol industry resistant to federal support for more DUI prevention technology
- Notable report on Oregon's use of technology to combat drunk driving
- Ignition lock law in Kansas seeming responsible for huge drop in DUI fatalities
Sunday, April 21, 2013
Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observerThe sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:
Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches. But not in federal courtrooms, where all electronic devices are banned. But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.
Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.
On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.
Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state. That’s when Prince admitted having photographed his friend with the phone.
When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt. Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said. He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone. "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."
But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop. Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.
On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."
A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings. In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.
But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings. I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?
April 21, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack
Friday, April 12, 2013
Two discussions suggesting potential virtues of shame punishments
I have just noticed two notable punishment theory papers via SSRN discussing shame punishments. This broader piece by Luke Coyne is titled "Can Shame Be Therapeutic?" and here is its abstract:
This paper focuses on alternative judicial punishments such as reciprocal and humiliation punishments. It explores the past and present use of such punishments. It covers the theories behind the use of these punishments. It also takes a look at the praise and criticism for the use of these punishments. Additionally, the paper discusses the use and effects of these punishments, including recidivism rates.
This other piece is by Xiyin Tang is a bit more focused. It is titled "Shame: A Different Criminal Law Proposal for Bullies," and here is the abstract:
Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective.
I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue. To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.
Thursday, April 04, 2013
"Pretrial Detention and the Right to Be Monitored"The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:
The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.
This paper develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.
Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.
Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint." I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.
April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, April 01, 2013
California figures out GPS tracking won't work if GPS trackers don't workThe silly tilte to this post is prompted by this notable lengthy story from the Los Angeles Times, which carries the following headline and sub-heading: "Tests found major flaws in parolee GPS monitoring devices: One company's devices were deemed so unreliable that California ordered a complete switch to another firm's, citing 'imminent danger' to the public. A lawsuit ensued." Here is how the piece starts:
A little more than a year ago, California quietly began conducting tests on the GPS monitoring devices that track the movements of thousands of sex offenders. The results were alarming.
Corrections officials found the devices used in half the state were so inaccurate and unreliable that the public was "in imminent danger." Batteries died early, cases cracked, reported locations were off by as much as three miles. Officials also found that tampering alerts failed and offenders were able to disappear by covering the devices with foil, deploying illegal GPS jammers or ducking into cars or buildings.
The state abruptly ordered parole agents to remove every ankle monitor in use from north of Los Angeles to the Oregon border. In their place, they strapped on devices made by a different manufacturer — a mass migration that left California's criminal tracking system not operational for several hours.
The test results provide a glimpse of the blind spots in electronic monitoring, even as those systems are promoted to law enforcement agencies as a safe alternative to incarceration. The flaws in the equipment raise the question of whether the state can deliver what Jessica's Law promised when voters approved it in 2006: round-the-clock tracking of serious sex offenders.
In a lawsuit over the state's GPS contracting, corrections attorneys persuaded a judge to seal information about the failures, arguing that test results could show criminals how to avoid being tracked and give parole violators grounds to appeal convictions.
The information, they warned, would "erode public trust" in electronic monitoring programs. The devices, they said, deter crime only if offenders believe their locations are being tracked every minute. "The more reliable the devices are believed to be, the less likely a parolee may be to attempt to defeat the system," GPS program director Denise Milano wrote in a court statement.
State officials say the replacement devices have largely resolved the problems, but officials so far have refused to release test data showing what, if any, improvements were gained.
Some older related posts on tracking technologies:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
Monday, December 31, 2012
"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions. And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:
Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.
However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.
The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.
Thursday, December 20, 2012
Wisconsin talk of GPS tracking all with domestic violence restraining ordersThe Milwaukee Journal-Sentinel has this interesting lengthy article about a new technocorrections development in Wisconsin. The piece is headlined "Walker: GPS monitoring needed for those with restraining orders," and here are excerpts:
Gov. Scott Walker wants people who have domestic violence restraining orders issued against them placed on GPS monitoring so victims will be alerted when their assailants are nearby. The idea — which Walker said is still under development and may be included in the state budget he introduces in February — is in response to the October shooting at the Azana Salon & Spa in Brookfield.
The proposal comes as policy-makers around the country debate how to prevent mass shootings like Friday's massacre in Connecticut that killed 20 first-graders and six adults. The perpetrator, Adam Lanza, killed his mother before going on the rampage at Sandy Hook Elementary School in Newtown, where he then killed himself.
Walker said Wednesday that for now he is focused more on this year's shootings in Brookfield and at the Sikh Temple of Wisconsin in Oak Creek because more information is known about them. He said more details about what happened in Connecticut are likely to come out in the weeks ahead, and that would provide the public a better sense of what laws, if any, need to change....
The Connecticut shooting comes just months after two deadly sprees in Wisconsin. In August, white supremacist Wade Michael Page killed six people at the Sikh temple before he was shot by police and then killed himself. In October, Radcliffe Haughton killed his estranged wife Zina and two of her co-workers at Azana, wounded four others and took his own life.
The Republican governor said he is "very interested" in including in his budget proposal a provision that people with domestic violence restraining orders against them be placed on global-positioning monitors. He said he is still working on details....
Walker signed a law this year that allows judges to put people on GPS tracking if they violate a restraining order and are found to be more likely than not to cause serious bodily harm to the person who sought the order. The law takes full effect in 2014. The measure passed with overwhelming support. Only Sens. Glenn Grothman (R-West Bend) and Lena Taylor (D-Milwaukee) voted against it.
Grothman expressed concerns about Walker's latest proposal. "It sounds like a lot of money, but having the government monitor that many people seems a little offensive," he said. More than 15,000 new restraining orders and injunctions are issued a year on average in Wisconsin, according to the state Department of Corrections. The agency's data does not say how many of those were related to domestic violence.
"I've always been afraid that over time government will use GPS technology to keep track of a larger and larger segment of the population," Grothman said. "It does not take a strong burden of proof to get a restraining order, and I don't think we need 15,000 people in this state being monitored."
Walker said the cost would be borne by the people who had restraining orders issued against them. The Department of Corrections monitors some sex offenders at a cost of $6.90 a day per offender. If those under a domestic violence restraining order were put on GPS monitoring and charged the same rate for six months, it would cost them more than $1,200. If those people could not afford to pay for their monitoring, it could add up to millions of dollars a year that taxpayers would pick up.
Tony Gibart, policy development coordinator for the Wisconsin Coalition Against Domestic Violence, said his group supports increased monitoring of domestic abusers but noted that many issues in Walker's proposal would need to be worked out. "I think there are a lot of legal and practical matters that would have to be thought through," Gibart said.
Many with restraining orders against them won't be able to pay, he said. Additionally, victims and assailants often share children, and the assailant is responsible for helping to pay to take care of the children. If they have to pay for their GPS devices, that makes it harder for them to pay costs such as child support....
Tamara Packard, a civil rights attorney in Madison, said she has civil liberties concerns in the government tracking a person who hasn't been convicted of any crime. "The question is whether that's something that's possible under the Constitution and whether that's something that we want in our society," Packard said.
Wednesday, December 19, 2012
"Smart Gun Technology Could Have Blocked Adam Lanza"The title of this post is the headline of this new Huffington Post commentary by David Shuster, which I view as a long-needed and welcome example of a new kind of discourse over gun control needed in the wake of the Newtown massacre. Here are excerpts:
As our leaders begin the uncertain political debate over gun control, there is a simple and straightforward policy solution right now that would uphold gun owners' 2nd amendment rights and still keep our kids safer. It's called "smart gun technology."
The system is similar to "smart technology" already in use for things like cars, iPhones and security doors. A computer microchip measures the bio-metric details of the person attempting to activate the product. If the details match the rightful owner, the device is "enabled." If the details don't match, the device will not work or open.
The most reliable smart gun technology involves a grip recognition system. There are 16 digital sensor chips embedded in the handle. The computerized sensors capture the unique pattern and pressure of your grip, plus the specific size of your hand. If someone else tries to use the gun, the information will not match the stored pattern of the gun owner's — and the weapon will not fire....
[T]his technology, as well as similar versions involving fingerprint recognition, could be embedded in guns today. But for years, the National Rifle Association has blocked these efforts, in part because they would make guns costlier to produce and purchase. The NRA has also insisted that smart gun technology would infringe upon the Second Amendment. Constitutional experts say that argument is absurd. The Constitution allows for all kinds of product regulations....
The best argument against smart gun technology is a logistical one. It could prevent a homeowner who wrestles away an intruder's gun from firing it back at them. I think we can agree, however, that such MacGyver-like situations are exceedingly rare. And the fact is, 10 to 15 percent of guns used in home invasions, robberies and mass shootings are weapons that have been stolen.
Furthermore, smart gun technology allows for multiple biometric "identities" to be stored in one gun. This would solve a problem for police or members of the military who may want to have the option of "sharing weapons."
In the case of the Connecticut massacre, is it possible that Adam Lanza's mother, a gun enthusiast who reportedly took her sons to the range, would have embedded Adam's biometric data on her weapons if that was possible? Sure. But family baby sitters have told reporters that Nancy Lanza repeatedly urged "caution" around Adam and was worried about his behavioral problems....
The weapons Adam Lanza relied on were not his. They belonged to his mother, the only person entitled to use them. And while she may have taught her son how to fire the weapons at shooting ranges over the years, she was the sole owner of the weapons, not him. If smart technology had been in place, the weapons would have likely been useless to Adam Lanza.
And that's the point. Congress and the President should begin their new effort at preventing mass shootings by mandating something that might have made a different in Newtown, Conn. — require smart gun technology in all weapons. Just as our nation insists on basic quality standards for cars, houses, tools, air, water, and etc, insisting on basic features for all weapons that may be "fired" is perfectly reasonable.
It's not about taking guns away. It's about making sure that guns can't be fired by anybody but their lawful owners. Is that too much to ask?
As long-time readers know, I have been talking up smart-gun technology on this blog for years (examples here and here), and I have been sincerely hoping that the horrific shooting in Connecticut will start generating new and needed buzz on this encouraging front. This Huff Post commentary is a good start, and I sure hope the new leadership and initiatives coming from President Obama and VP Biden (basics here from the AP) will be focused like a laser on the potential pros and cons of smart guns.
Prior posts both old and new:
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
Tuesday, October 16, 2012
New report examines value of video visitation for kids of incarceratedI received news via my electronic in-box of an intriguing new report from The Sentencing Project. Here is how the e-mail describes the report (with a link within):
On any given day, approximately 2.6 million children have a parent in jail or prison because of the harsh criminal justice policies that have made the United States the world's leading jailer. A growing number of correctional facilities are moving to video visitation because it can be managed by fewer staff than traditional visitation, reduces the chances of contraband being introduced into facilities, and can potentially generate revenue.
In our new report, Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?, Dr. Susan D. Phillips addresses the question of whether video visitation may also provide benefits for children who are separated from their parents by incarceration. Our conclusion is that it depends on the particular policies and practices of a given institution.
Video visitation holds the most potential for benefiting children if:
- It is used as an adjunct to, rather than a replacement for, other modes of communication, particularly contact visits;
- Children can visit from their homes or nearby sites;
- Facility policies allow for frequent visits; and
- Fees are not cost prohibitive.
Monday, October 15, 2012
With Texas schools now RFID tracking, is broad criminal justice use of this technology on the horizon?
Long-time readers may recall that more than half a decade ago I was asking in this post whether microchip inplants to track offenders might be an unavoidable inevitability. To some extent, broad GPS tracking of sex offenders in many states has begun a move in this direction.
I have long thought the increased use of this technology for non-criminals would be a key social development that could make more people more inclined to be more comfortable with this kind of Big Brother approach to criminal justice. Consequently, this recent media story coming from Texas about a new use of RFID tracking caught my attention. The story is headlined "RFID chips let schools track students -- and retain funding -- but some parents object," and here are excerpts:
Two San Antonio schools have turned to radio frequency identification (RFID) technology to help administrators count and track the whereabouts of students on campus.
Students at Anson Jones Middle School and John Jay High School are required to wear ID cards imbedded with electronic chips, similar to highway toll tags, which allow schools to more accurately record daily attendance. Public school funding is often tied to the number of students attending class each day....
Pascual Gonzalez, Northside’s communications director, estimates the entire district has been losing about $1.7 million a year because of underreported attendance. He says the RFID system, which costs $261,000, should pay for itself in the first year.... Principal Wendy Reyes says the system has the added benefit of allowing her to find a particular student instantly. “Sometimes it’s difficult to locate a student in a sea of 1,200 others, so this helps locate them in an emergency,” she said. The ID tags can only be read on campus, so students cannot be tracked outside the building.
Some parents and students fear the radio ID tags are just too much Big Brother. Steve Hernandez, whose daughter is a sophomore, objects to the tags on Biblical grounds. He compared the badges to the “mark of the beast” as described in the Book of Revelations.... The American Civil Liberties Union calls the RFID tags “dehumanizing.”
“What kind of lesson does it teach our children if they’re chipped like cattle and their every movement tracked?” asks Jay Stanley, senior policy analyst with the ACLU’s Washington, D.C. office. “It doesn’t create the kind of independent, autonomous people that we want in our democratic society.”
Gonzalez, Northside’s spokesman, says school administrators have no intention of spying on students. “There’s a misconception that somebody’s sitting in a room with a bank full of monitors looking at where 1,200 kids are here at Anson Middle School. That’s not true,” he said. “It’s not even feasible. We’re not staffed nor are we interested in knowing where all the kids are at a particular moment.”
What the RFID system does do, according to Gonzales, is provide an accurate, daily census of students, which helps the district make money. Based on early results, the district may consider expanding the RFID system to its other 109 schools, encompassing nearly 100,000 students.
I find the quotes from various folks in this story especially notable given the potential application of this technology in criminal justice setting: I suspect many policy-makers would be glad, not troubled, to adopt a technology which might be viewed as "dehumanizing" for certain types of offenders, and I am certain there is some policy interest (and some public benefits) from having the every movement of high-risk offenders tracked. And though some are quick to object to any further monitoring of sex offenders, I wonder if there would be the same concerns about using RFID to track potentially violent men who are subject to a restraining order due to a history of domestic violence.
Some older related posts on tracking technologies:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
Tuesday, September 18, 2012
South Carolina Supreme Court reconsidering big constitutional ruling concerning broad GPS trackingAs reported in this prior post, last May the South Carolina Supreme Court issued a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here). Via this new AP article, I now see that this Dykes case was reheard today, though it is not clear whether we may get a new (or clearer) opinion this time around. Here are the basics:
Even after hearing the case a second time, the South Carolina Supreme Court isn't sure it is fair to make some sex offenders in the state face lifetime satellite monitoring of their every move without any chance of appeal.
The justices Tuesday reheard a case from May where they decided the monitoring may be too harsh in some cases. The Department of Probation, Parole and Pardon Services asked the court to reconsider its ruling, saying their decision rewrote the law.
A lawyer for Jennifer Dykes again argued her constitutional rights were violated because she had no chance to appeal or revisit the decision to put a bracelet on her ankle that reports her every move to state authorities.
Dykes, 32, was ruled to be a sex offender after being convicted of a lewd act on a child charge stemming from her relationship with a 14-year-old girl in Greenville County several years ago. She was found to be at low risk to abuse a child again.
After violating her probation by drinking alcohol, continuing a relationship with a convicted felon she met while behind bars and rescheduling too many appointments for sex offender counseling, Dykes' probation was revoked, according to court documents.
The probation violation meant under state law authorities could seek lifetime monitoring for Dykes without a chance of appeal.... Dykes' lawyer, Chris Scalzo, held up his wedding ring and said while he loves his wife and wears it nearly all the time, he can take it off. "She's not allowed to take that thing off her body unless there is a court order," Scalzo said.
An attorney for the probation agency, John Aplin, said lawmakers passed the lifetime monitoring law to protect the public. "The reason you are tracking that person every minute of every day for the rest of their life is to protect children from further future harm. It's also to help law enforcement solve crimes," Aplin said.
Chief Justice Jean Toal said she understands the need for public safety from the most dangerous offenders. But she said it is a fair question to ask if a one-size-fits-all law that doesn't allow a timely chance to appeal the ruling or ask a judge to revisit whether an offender is still dangerous is constitutional. "This court has no grief for sex offenders. But there are certainly different levels," Toal said.
Associate Justice Kay Hearn, who wrote her own opinion in May suggesting that revealing every detail of Dykes' private life to state officials violates her constitutional rights, pointed out that Dykes was not considered to be a dangerous sex offender who preys on children and would likely never change her behavior.
Prior related post:
- South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds: