Sentencing Law and Policy

"Pokémon Go Craze Sparks Worries About Sex Offenders, Cybercriminals"

My students and regular readers know I am eager to assert that any and every aspect of modern law and life has a sentencing/crime and punishment angle. In service to that claim, I could not resist highlighting this new local NYC article which shares the headline of this post and demonstrates that the latest gaming craze in not immune from criminal justice concerns. Here are the (serious?) particulars:

The Pokémon Go app has been all the rage in recent days, but new concerns have mounted about criminals abusing the game.  As CBS2’s Jennifer McLogan reported, there are worries that sex offenders might use the app to lure children, and cybercriminals might steal people’s information.

Sulma Rivas is part of a Pokémon Go scavenger hunt adventure craze. So are her three children. Rivas keeps a watchful eye. “I don’t want to do it when my mom’s not around, because I could get hurt,” said Mylie Rivas, 10.

Pokémon Go is exploding in popularity, and Babylon town officials have been monitoring hundreds of people of all ages circling the lake in Argyle Park -- with their heads down and their smartphones in hand.  When asked if he was playing unsupervised, Ethan Fortaleza, 12, smiled and said, “Maybe.” Ethan said his parents dropped him off in a safe area. But county officials are worried about the luring component of the game.

With 38,000 registered sex offenders in New York state, police fear that it might be easy for someone to fake a Pokémon Go ID and stalk a child player. “The people who are the quickest to adapt to new trends in social media technology are criminals and predators,” said Suffolk County Executive Steve Bellone.  Bellone wants Pokémon developer Niantic to install e-stop technology, making it tougher for predators to sign on and demanding more checks and balances.

After downloading the app, players are asked to sign up with their Google accounts, using existing credentials to ensure the process is fast and simple. But that can put at risk users’ emails, cameras, photos, and storage.  That pool of data could be a boon for cybercriminals.

“I haven’t heard anything about that. That would be unfortunate,” said Samara Katini, 21. “I probably wouldn’t play the game if that was a real problem.”...

Ninatic said it is working closely with authorities to keep all players safe. The company said it has no plans to share the data it collects with third parties.

"Automatic Justice? Technology, Crime and Social Control"

The title of this post is the title of this intriguing new paper authored by Amber Marks, Ben Bowling and Colman Keenan. Here is the abstract:

This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice.  It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system.  These blur the boundary between the innocent person, the suspect, the accused and the convicted.  They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment.  The entire process is being automated and temporally and procedurally compressed.  At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past.

This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model.  The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.

Should high-profile prosecutor have a high-profile social media presence?

The question in the title of this post is prompted by this St. Louis Post-Dispatch article. The piece is headlined "Tweeting the law: St. Louis prosecutor gets praise and criticism," and here are excerpts:

She delivered her first tweet with gusto. “I know I’m getting to this party 5 years late but Hello Twitterverse!” Circuit Attorney Jennifer Joyce announced in a March 23, 2011, post, adding a #JMJ stamp to make it official.  From there, the St. Louis prosecutor — who until then preferred sticking to the confines of the courthouse — developed a loud and unabashed presence on the social networking site.

With daily, sometimes rapid-fire online messages, Joyce began announcing charges and sentences.  She expanded to Facebook, telling the stories of crime victims and neighborhood action.  She eschewed traditional news releases in favor of teasers linked to court documents on her website.  She rallied citizens and threatened criminals.

“Bad guys take heed: Lafayette Park folks WILL catch you & they WILL go to court to get your bond raised. Saw this today!” she tweeted in June 2011.  And in January: “Carl Barnes & David Townes came to City to steal dumpsters. Both now charged with felony stealing. Stay out of our town! #WELOVESTL.” 

At last check, Joyce had tweeted 2,557 times to 1,628 followers, and 917 people had subscribed to her office’s Facebook page.... [E]ven in the age of online everything, it is less common to see a prosecutor so prolific on these sites, and mixing personal with professional.

While Joyce has been praised for engaging the community, her musings — particularly the tone of them — have raised eyebrows in the buttoned-down legal community, where lawyers’ comments are bound by strict limits to protect the rights of the accused.  Twice this year, Joyce’s courtroom opponents have complained to judges in formal motions that she crossed the line....

On her Twitter page, Joyce juxtaposes case information with shout-outs to her husband and cheers and jeers on Notre Dame game days.  After reaching the 1,000-follower mark, she tweeted about a cupcake giveaway.  She praises police and neighborhood groups who show up to court. “It is very powerful in informing and engaging citizens to get involved in public safety issues in their community,” she explained.

Her message to criminals is pointed: Shape up or ship out.  “Stanley Bailey assaulted an 80 yr old lady & stole her purse,” she tweeted on Oct. 25.  “He now has 20 yrs to ask himself why he’s a jerk.”  In another: “Don’t threaten police with a weapon, unless you want to be shot AND charged with a felony (unlawful use of a weapon), like Carl Evans was today.”

The Facebook page, a collaboration of Joyce and her staff, has narratives of closed cases, crime-fighting tips and profiles of police and court players.  Those narratives are often dramatic, with talk of “bad guys” and the innocent victims they prey upon.  In one poignant exchange, she explained to the family of a traffic fatality why she could not file a manslaughter charge....

Joyce is not the only top prosecutor who tweets or finds friends on Facebook.  Charles Hynes, district attorney from Brooklyn, N.Y., and Craig Watkins, his Dallas counterpoint, are among many with a more neutral tone, offering posts that function as mini news releases about events and appearances.  They rarely talk about specific cases.

One exception is Ray Larson, district attorney in Lexington, Ky. Joyce has said on her Twitter page: “If you like tweeting prosecutors, you’ll love @raytheda. Much spicier than me!”  Larson displays a Superman-like emblem and likes to comment about “thugs, hoodlums and outlaws.”

Michael Downey, a lawyer specializing in ethics at the Armstrong Teasdale firm in St. Louis, said everyone should beware of the basic hazards of social media: It’s easy to be impulsive, the message reaches a broad audience and the words linger to haunt the writer later.  Beyond that, Downey emphasized, lawyers — especially prosecutors — have a special obligation not to publish something that might influence a jury and deprive a defendant of a fair verdict. “It’s a huge potential problem,” he said, and one that pops up increasingly. Ethics violations could lead to reprimand, suspension, or in more serious cases, disbarment....

Mary Fox, head of the public defender’s office here, complained in a court motion after prosecutors opposed a gag order in the Ronald Little rape case.  Fox said Joyce’s tweeting, in general, had created “a heightened public condemnation of the accused.” That wording reflects a Missouri ethics rule on pretrial publicity.  Fox wanted to prevent any tweets about Little’s case.  The motion never received a ruling.

In June, an assistant public defender asked a judge to dismiss rape charges against his client, David Polk, after Joyce tweeted about it on the eve of trial.  Joyce continued to tweet through jury deliberations, noting that she could never defend a child rapist.  The judge denied the motion, but did question jurors extensively about whether they had seen the tweets, according to Fox....

Joyce said she is careful not to include her opinions on active cases, speaking only to what is in the public record.  The ethics rule is posted on her website, and her Facebook page reminds that defendants are innocent until proven guilty.  She noted no ethics complaints have been filed against her.  “I’m an elected official and I’m put in this position by the people of St. Louis, and I think they have an expectation that I’m going to inform them of what’s going on,” Joyce said. “To suggest I don’t have the right to speak to my bosses — the citizens of the city of St. Louis — is kind of crazy.”

"From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws"

The title of this post is the title of this new article now available via SSRN by Professor Audrey Rogers. Here is the abstract:

Child pornography circulating in cyberspace has ballooned into the millions.  To punish this flood, the law must accurately delineate culpable conduct.  Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings.  The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves.

This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly.  Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.