Programs that focus on addressing mental health and substance abuse issues of inmates can reduce the burden of crime on American taxpayers, according to a policy brief issued the White House Council of Economic Advisers (CEA).
Programs that focus on addressing mental health and substance abuse issues of inmates can reduce the burden of crime on American taxpayers, according to the White House Council of Economic Advisers (CEA).
In a policy brief issued this month, the CEA suggested that every dollar spent on prison reform in these programs could save between $0.92 and $3.31, and up to $1.96 on long-term incarceration costs alone.
The study was undertaken as part of the Trump administrations efforts to improve prison reform and re-entry programs that would result in lower recidivism.
Noting that the heaviest share of the crime burden is accounted for by high re-arrest rates, the CEA concluded “there is an empirical evidence base to support programs that focus on the prisoner’s mental health or substance abuse to prevent future crime.”
But it added that there is less evidence suggesting other types of programs, such as those aimed at educating inmates, are cost-effective.
It called for “increased investment” in generating such evidence.
Profiling young Latinos as “gang members”—often with little evidence beyond a suspect tattoo— has “devastating” consequences for individuals and their communities, according to a study by the City University of New York (CUNY) School of Law.
Profiling young Latinos as “gang members”—often with little evidence beyond a suspect tattoo— has “devastating” consequences for individuals and their communities, according to a study by the City University of New York (CUNY) School of Law.
Authors of the study concluded that databases and information-sharing among federal immigration authorities and local law enforcement often resulted in collecting names of individuals with no connection to MS-13, a notorious gang which has been associated with murders and drug dealings across the U.S., reports Voices of NY.
The study, based on a survey of 43 immigration lawyers and immigration advocates in New York State, notes that allegations of gang membership have been used to deny asylum or legal residents, and as a pretext to deny applications for benefits or to arrest immigrants.
A young person can be branded as a gang member just because he or she happens to know someone in a gang or connects to a gang member via social media, and the suspected name can be added to a gang database without knowing it, said Babe Howell, a CUNY law professor in a conference call discussing the study’s findings.
The study was co-produced by the CUNY School of Law Immigrant & Non-Citizen Rights Clinic and the New York Immigration Coalition.
The authors called for setting “stringent” requirements for adding names to a gang database, including limiting subjects to individuals 16 and over, and who have been convicted for violent offenses or gang-motivated felony offenses.
Criteria for inclusion should be published and publicly available, and periodic audits of databases by neutral third parties should be conducted, with a view to expunging names when new information becomes available.
Colorado’s three largest cities experienced a “stark” rise in the enforcement of ordinances aimed at moving homeless individuals out of public places since 2016, according to a University of Denver study. But researchers said the state has done little to address the roots of homelessness, while increasing the burden on taxpayers.
Colorado has stepped up measures to force homeless individuals off the streets, even though many police and municipal authorities concede such measures do little to address the poverty and high housing costs that fuel the state’s homelessness “crisis,” according to a study by the University of Denver Sturm College of Law.
“Despite some city officials acknowledging that issuing citations does nothing to solve the homeless crisis, our research reveals that city actors continue to criminalize homelessness,” the study said.
The study, a follow-up to a 2016 report by the same research group that detailed the rising cost to Colorado taxpayers of anti-homeless measures, found that the state’s three major cities—Denver, Boulder and Colorado Springs—had experienced a “stark rise in enforcement of anti-homeless laws, and [in] the disproportionate and inhumane impact they have on the day-to-day lives of people experiencing homelessness.”
The three cities now have at least 37 ordinances that target behavior considered a direct consequence of poverty and the rising cost of housing, said the authors of the study, published this month as part of the university’s Homeless Advocacy Policy Project.
The ordinances are effectively enforced by “move-on” orders issued by police for individuals who are camping, sitting, or loitering in public property.
“At first glance, these move-on orders may seem like a viable alternative to outright issuing citations,” the study said. “However, with the extreme decline in affordable housing and the lack of emergency shelter space to accommodate Colorado’s growing homeless population, these move-on orders leave homeless people with nowhere to go.
“Instead, they are merely pushed from one place to the next.”
In Boulder, for example, the lack of adequate shelter beds to house the homeless population traps individuals told to “move on” in a cycle that inevitably leaves them vulnerable to arrest for violating the expanding number of anti-homelessness municipal ordinances.
Boulder now spends about $1.8 million per year in the enforcement of anti-homeless ordinances alone.
The practice has accelerated despite objections from local enforcement.
“I don’t believe any community can enforce their way out of homelessness,” the report quoted Boulder Police Chief Greg Testa as saying. “The police are often called to address illegal behavior, and giving a warning or writing a summons modifies behavior, but it doesn’t solve homelessness.”
The use of these “move-on” orders also gravely endangers homeless individuals—by forcing them into dangerous areas, threatening their health, and pushing them further away from resources that could help them, the study said.
“As homeless people are forced into the shadows, extremely harmful consequences usually follow,” said the study.
The authors noted that just 12 percent of a sample of police-targeted homeless individuals interviewed by the Homeless Advocacy Policy project reported they were advised where they could go for further help.
Cities have often pointed to public health concerns as a motivator for anti-homeless ordinances such as authorizing sweeps of homeless camps, barring citizens from occupying a highway median, or public urination.
But in Denver, like many cities, there are no 24-hour bathrooms, leaving the homeless with few options but to break the law.
Meanwhile, housing prices in all the three cities reviewed in the study have risen in recent years.
“Research shows a $100 increase in rent is associated with an increase in homelessness of between six and 32 percent,” the study said.
Researchers utilized Open Records Requests to access data on the enforcement of anti-homeless laws in the three cities.
The study, entitled “Too High A Price 2: Move On To Where?,” was led by professors Nantiya Ruan and Elie Zwiebel , who supervised a team of students working at the Homeless Advocacy Policy Project: Michael Bishop, Bridget Dupey, Nicole Jones, Ashley Kline, Joshua Mitson, and Darren O’Connor.
According to the study, there was a 539 percent increase in the number of individuals contacted through move on orders, also categorized as “street checks,“ from 2014 to 2017.
Researchers reported that on an average night, Denver’s metropolitan homeless population amounts to more than 5,000 people.
“Included in this total, 924 are unsheltered on any given night, and nearly 2,000 individuals may be housed in emergency shelters with the remaining individuals sheltered in transitional housing,” the study found.
Data collected from the Colorado Springs Police Department showed a marked increase in citations issued since 2016 relating to camping in public parks, and entering or remaining in public parks after hours. Enforcement of these two ordinances went from “31 citations in 2014, to 200 citations in 2017, which amounts to a staggering 545 percent overall increase,” said the study.
The study called for the repeal of municipal camping bans and similar ordinances, noting that such laws have been subject to constitutional challenges.
It also recommended keeping public bathrooms open night and day, and suggested that Colorado invest in a messaging campaign that instructs the public to respect the dignity of those experiencing homelessness.
“Residents of our communities that are un-housed remain members of our community,” the authors said.
“They are valuable citizens who have voices. Public service announcements aimed at inclusivity and dignity could go a long way toward combatting the shunning and discrimination that homeless citizens experience on a daily basis.”
The number of older adults in prison and jail is projected to grow to a “staggering” 400,000 people by 2030, according to a report released Thursday by the Osborne Association. The aging prison population requires a shift in how the U.S. addresses incarceration, the report says.
At least one-third of the U.S. prison population will be over 50 by 2030, according to a white paper released Thursday by the Osborne Association.
The association, a New York-based advocacy group that works with justice-involved people and their families, cited figures showing that even as states are working to reduce prison populations, the number of older adults in prison and jail is projected to grow by a “staggering 4,400 percent” in the 50-year period between 1980 and 2030—to an estimated 400,000 people.
According to statistics quoted by the researchers, adults over 50 comprised just three percent of the total incarcerated population in 1993, representing 26,300 individuals.
“Justice isn’t served by keeping elderly people locked up as their bodies and minds fail them and they grow infirm and die,” said Elizabeth Gaynes, president and CEO of the Osborne Association, which advocates for improved conditions in prisons and jails, better discharge planning, and expanded compassionate release of the elderly and infirm.
“It’s both inhumane and inefficient.”
According to the report, entitled “The High Cost of Low Risk: The Crisis of America’s Aging Prison Population,” extreme sentences doled out during the tough- on-crime era, as well as limited mechanisms for compassionate release, have driven what is now a costly and inhumane crisis that the corrections system is unequipped to manage.
The medical costs of caring for a burgeoning elderly population behind bars alone will add to the strains of resource-strapped corrections systems, many experts have said.
According to data analyzed by the American Civil Liberties Union, it costs twice as much to incarcerate someone over 50; in some cases, it may cost up to five times more when medical costs are added.
Between 40 percent and 60 percent of prisoners over 50 have some type of mental illness or cognitive impairment, according to data from the Bureau of Justice Statistics. Some prisons are setting up makeshift hospice wings and opening nursing wards for people with serious cognitive degeneration.
Elsewhere, inmates suffer from such pronounced dementia that they are unable to follow rules, and may not remember why they are incarcerated. For many with cognitive, visual, or hearing loss, a diminished capacity leads to behaviors that are mistaken for disobedience, subjecting them to punishments such as solitary confinement.
The authors argue that addressing this crisis requires what they call a “new paradigm of justice,” involving a shift in how we respond to violence.
The majority of people graying in detention were arrested for violent crimes in their teens, 20s and 30s, according to the report, Yet, it adds, “the low risk of recidivism for older people described earlier holds true for people who are convicted of the most serious acts of violence, particularly homicide-related offenses.”
The report cites several victims advocates who argue against incarceration as a primary response to violent crime, since it fails to address underlying causes of individual violence in society, including poverty, trauma, isolation and inequity.
“Exposure to violence is especially prevalent amongst those aging behind bars, though decades may have elapsed since such harm was both survived and committed,” a fact that underscores the potential for preventative interventions that address trauma, wrote the authors.
As one example of a more targeted approach to violence, Michigan last year “became the third state in the country to offer a trauma center for victims of crime within a hospital in Flint to promote healing and prevent future crime.”
Health and Accelerated Aging
The report also calls for improved conditions in prisons and jails, including universal guidelines and training for prison staff to help them recognize age-related issues.
Those who are aging in prison have a higher rate of serious medical issues compared to the general population, in addition to health problems correlated with socioeconomic factors. Communicable and chronic diseases such as hepatitis, HIV, tuberculosis, arthritis, hypertension, ulcer disease, prostate problems, respiratory illnesses, cardiovascular disease, strokes, Alzheimer’s, and cancer are far more prevalent in the older prison population compared with the overall prison population.
While there is more bipartisan support for decarceration when it comes to nonviolent offenders, the urgent need for a new approach to violent crimes is underlined by the runaway cost of housing elderly inmates: now an estimated $16 billion-a-year burden on taxpayers, and growing.
Narrow doorways, stairs, and lack of handrails all pose architectural problems for inmates with limited mobility, as do facilities like cafeterias and medical units, which can be spread far apart. The report also notes that older individuals may struggle getting to and from their beds, especially a top bunk; and that geriatric incontinence and other physiological issues that accompany old age “can be extremely difficult to handle with dignity in an environment lacking privacy, leading to harassment and feelings of shame, isolation, and depression.”
Upon release, older adults face greater rates of homelessness, low employment, increased anxiety, fragmented community and family ties, chronic medical conditions, and increased mortality rates, according to the report.
“The issue of aging people in prison can be interpreted through several lenses: an unintended consequence of ‘tough-on-crime’ policies, a human rights crisis, a matter of economic urgency, a public health crisis, an extension of a racialized punishment paradigm, or a reflection of the critical shortcomings of our criminal justice system,” write the authors.
“Any serious and sustainable attempt to resolve this crisis must address the needs of those aging in prison,” in addition to shifting our response to violence away from mass incarceration and long sentences.
In support of a solution, the Osborne Association makes a number of specific policy recommendations, grouped into five clusters:
Improve conditions inside of prisons and jails for those aging within them,
including strengthening staff capacity to recognize and address aging issues, and
adopting policies and practices that are age-considerate;
Improve discharge planning and reentry preparation for older people within
Expand specific release mechanisms for older people;
Improve the reentry experience of older returning citizens by increasing
community supports and receptivity, including addressing their housing, medical/
health, mental health, post-incarceration, financial, family, and employment needs;
Shift our response to violence by expanding the range of services offered to
victims and survivors of crime, and by reducing excessively long sentences for all crimes
of conviction, including for violent crimes, that drive the crisis of aging in prison.
A report by the Open Society Justice Initiative calls for an international investigation of two massacres committed by drug gangs in the Mexican state of Coahuila on the U.S. border that left 450 people dead. The incidents illustrate what researchers say is a nationwide pattern of collusion between narco-cartels and corrupt authorities that has turned the U.S. closest southern neighbor into a killing ground.
Coahuila, Mexico, one of Mexico’s 31 states.
Government and police officials in the Mexican state of Coahuila, on the U.S. border, have colluded in massacres by narco-cartels that constitute “crimes against humanity,” according to a new report by the Open Society Justice Initiative.
The report singled out two separate examples between 2009 and 2012—the killing of approximately 300 men, women and children in the northern municipality of Allende and nearby towns, and the disappearance, torture and murder of 150 individuals inside a prison that served as de facto headquarters for the Zeta drug cartel—to underline what it called the “systemic” problems of drug corruption, violence and official impunity in Mexico.
“These (two examples) bear the hallmarks of crimes against humanity, given the scale and systematic nature with which they were carried out,” said the report, which called for the establishment of an independent international body to investigate the “corrupt networks between public officials and organized crime” across Mexico.
“Such international participation and support will be essential to combatting the political obstruction and partisan interests that currently impede Mexico’s troubled justice system.”
Published just ahead of the July 1 federal elections in Mexico, the report charges that the outgoing government of President Enrique Peña Nieto has presided over a “worsening” climate of murder and corruption. The 2017 toll of 25,000 homicides represents the deadliest single year since drug-fueled violence engulfed the country in 2006, according to the report.
The killings have continued despite Peña Nieto’s pledge to control Mexico’s escalating violence, the report said, noting that “his administration has maintained the same militarized approach (as his predecessors) to a deadly and ill-conceived ‘war on drugs,’ while continuing to target cartel kingpins.”
The Open Society report, based on research and interviews with victims and officials with the support of a number of Mexican human rights organizations, said the evidence suggested that police and government officials at senior levels were involved in the planning and cover-up of the incidents in Coahuila, as well as similar “atrocities” elsewhere in Mexico—including the torture and murder of journalists and human rights workers.
A similar study published last month in Spanish by the United Nations Subcommittee to Prevent Torture found “corruption and collusion between criminal groups and penal authorities and personnel” and concluded that “impunity in cases of torture is the rule” in Mexico’s prisons.
The authors of the Open Society study, which followed an earlier report on Mexico’s drug violence three years earlier, singled out systemic corruption as the driving force behind the two incidents in Coahuila, which they said illustrate the transformation of a largely rural state with a population of less than three million that occupies a 318-mile stretch of the U.S.-Mexico border into a “narco state” over the past decade.
During a three-day period in 2011, some 300 individuals were murdered in apparent revenge killings throughout northern Coahuila by assassins from the Zeta cartel. Local officials, including the mayor and police commander, were informed in advance “to ensure they would not intervene,” the report said.
Between 2009-2012, the CERESO Piedras Negras prison, just across the border from Eagle Pass, Tx., was used by the Zeta leadership as “an extermination camp and a base of operations to extend its reign of terror” in Coahuila, with the apparent knowledge and involvement of local authorities, according to the report.
“Further investigation is required to answer the questions [raised by the incidents], and to expose the formal (and informal) networks that appear to exist between Coahuila’s political and economic elite and organized crime,” the report said.
“Indeed, despite numerous cases of embezzlement and money laundering involving public servants in Coahuila’s last three administrations, little has been done to investigate and prosecute such corruption.”
The two incidents were only the most egregious examples of the “complicity” of officials in all areas of the country with human rights abuses committed by powerful cartels, added the report.
“[There are] increasing signs that corruption, and the violent crime it enables, are widespread across a number of states in Mexico—from Veracruz to Tamaulipas, from Guerrero to Chihuahua,” said the report.
“Indeed, there are compelling reasons to believe that the complicity of corrupt public officials in cartel-led atrocity crimes may be a widespread, recurrent pattern.”
Although the U.S. is not mentioned, the researchers’ implicit condemnation of the failure of Mexico’s ruling party—the Partido Revolucionario Institucional—to reign in the corruption of military, police and political officials, indirectly raises questions about Washington’s long-standing financial support and military aid to the Mexican government’s war on drugs.
The report said an “international investigative mechanism” was needed to establish accountability for the corruption and violence prevailing during the drug war.
The investigative body should be based inside Mexico and composed of national and international staff with a “mandate to independently investigate and, when necessary, prosecute atrocity crimes and the corruptive acts that enable them,” said the report, produced in collaboration with eight Mexican civil society and church groups.
“This body would also complement and support credible domestic criminal proceedings at both the state and federal level.”
The rate of growth for female incarceration has outpaced that of males by 50 percent since 1980–and over 60 percent of women in state prisons have a child under 18, according to a fact sheet released Thursday by the Sentencing Project, ahead of Mother’s Day.
The rate of growth for female incarceration has outpaced that of males by 50 percent since 1980–and over 60 percent of women in state prisons have a child under 18, according to a national advocacy group report released just ahead of Mother’s Day.
According to an updated fact sheet released by The Sentencing Project, the number of women and girls in detention ballooned from 26,000 to 213,722 between 1980 and 2016.
The incarceration rate of white women in state and federal prisons grew by 44 percent between 2000 and 2016, compared to 12 percent growth for Hispanic women; while the incarceration rate for African-American women fell by 53 percent during this time period.
Incarceration rates– and conditions– vary dramatically throughout the states. Looking at 2016 alone, the states with the highest rates of female imprisonment were Oklahoma, Kentucky, South Dakota, Idaho and Montana. Rhode Island, Massachusetts, New Jersey, New York and Maine were at the lowest end of the spectrum.
Women in state prisons are significantly more likely to have been detained for property or drug crimes than their male counterparts, according to the report.
And while 85 percent of incarcerated youth are boys, over 50 percent of youth incarcerated for running away are girls. Girls are also more likely than boys to be arrested for other low-level offenses such as truancy and curfew violations.
The report also found that Native American girls are incarcerated at four times the rate as white girls, at 134 per 100,000 versus 32 per 100,000. African-American girls were found to be incarcerated at a rate of 110 per 100,000.
The report also said Hispanic girls are 38 percent more likely to be imprisoned than white girls.
According to national studies, pregnant inmates are more likely to have complicated and higher-risk pregnancies than women in the general population,” wrote Lindsay Linder, author of the Texas study, noting that this results “in a higher numbers of stillbirths, miscarriages, and ectopic pregnancies.”
Women who responded to the survey say they had very little access to adequate health care; and some claimed their newborns were taken from them soon after birth.
This summary was prepared by Victoria Mckenzie, deputy editor of The Crime Report.
With one dissent, the Oregon Supreme Court rejected Kip Kinkel’s argument that his sentence, amounting to life without parole, is unconstitutional because he committed his crimes as a juvenile. Kinkel, then 15, killed his parents and two high school classmates, wounding 25 others. The case could head to the Supreme Court.
The Oregon Supreme Court ruled that a nearly 112-year prison sentence for high school shooter Kip Kinkel isn’t cruel and unusual punishment given the breadth and severity of his crimes, The Oregonian reports.
Kinkel, now 35, argued that his sentence amounts to a life term without parole and violates the Eighth Amendment because he committed his crimes when he was a juvenile. He argues that his sentence falls under the 2012 Supreme Court Miller v. Alabama ruling that mandatory life sentences for two 14-year-old murder defendants were cruel and unusual punishment because of their age.
The 2012 decision has led to a re-evaluation of juvenile murder sentences across the nation. The Oregon Supreme Court was unpersuaded. The court said that Kinkel’s crimes reflected “irreparable corruption” rather than youthful immaturity that could change over time. It noted that Kinkel’s sentencing judge found that he had an incurable illness, either paranoid schizophrenia or schizoaffective disorder.
The court couldn’t say Kinkel’s sentence was “constitutionally disproportionate,” given the number of people he killed and injured. Dissenting Justice James Egan said, “It is difficult to comprehend how petitioner’s youth at the time of his crimes, in combination with his mental disorder, did not affect the nature and gravity of his crimes.”
The Oregon Justice Resource Center, an advocacy group, agreed. Its director, Bobbin Singh, said, “The scientific evidence is clear: all young people have inherent potential to grow and change including those who have committed the most serious crimes.”
Thirty criminal justice organizations demanded in a letter Friday that the city stop allowing private contractors to collect fees from inmate telephone calls, commissary purchases and vending machines.
A group of 30 criminal justice activist organizations urged New York’s City Council Friday to yank all programs that make money off of people in jail, reports the New York Daily News. Currently, the city collects cash from fees tied to inmate telephone calls, commissary buys, and vending machine purchases.
“The city should be acting to alleviate the economic impacts of incarceration, not exacerbate them through predatory profit-making arrangements with private contractors,” according to a letter from the coalition, signed by groups including the Legal Aid Society, Brooklyn Defender Services, The Fortune Society and Urban Justice Center.
The groups say the city’s coming budget “projects millions in revenues to be generated through exorbitant fees to people in jail and their families.” That arrangement encourages the city to put people, primarily minorities, in jail, the group contends.
“These policies act as a tax that disproportionately affect people of color and are a prime example of the wealth extraction from targeted communities that drives economic inequality – one of the most serious problems facing our city today,” the group says.
It says the New York state prison system does not generate profits from phone calls made by prisoners “leaving ‘liberal’ New York City a step behind on progressive policy-making.”
Advocates say they support Intro 741, sponsored by Speaker Corey Johnson, which would eliminate fees for phone calls from City jails and any revenues the DOC collects on them.
In addition, advocates have objected to calls being recorded and shared with prosecutors without judicial warrants. Community contact is critical to those fighting criminal charges, yet those held pre-trial, the majority of whom are merely unable to pay bail, cannot safely maintain them over the phone, according to a press release.
For the smaller fraction of the population serving city sentences, calls are critical to strengthening the community ties that will help them successfully reenter society and avoid recidivism upon release. Whether a means of equality, efficacy, or dignity, speaking to loved ones should be encouraged not taxed.
“There are still other Department of Corrections revenues generated off incarcerated people and their communities. Asking critical questions of the Department of Corrections and demanding clear answers is the first step toward zeroing out profits generated in City jails and removing the economically perverse incentives that may promote incarceration over community solutions to public safety,” says the release.
Presidential adviser and son-in-law Jared Kushner will tour Seagoville Federal Correctional Institution outside Dallas Friday to promote the First Step Act, bipartisan legislation modeled after successful reforms in Texas and other states to help ex-offenders reenter society.
White House adviser Jared Kushner, President Trump’s son-in-law, will travel to Texas on Friday with Sen. John Cornyn (R-TX), a chief sponsors of prison reform legislation aimed at reducing recidivism and rehabilitating low-risk offenders, reports the Houston Chronicle.
Kushner will tour Seagoville Federal Correctional Institution outside Dallas. Joined by federal Bureau of Prisons director Mark Inch, they will get briefings on the prison’s community reentry and residential drug treatment programs.
The trip is aimed at promoting of the First Step Act, bipartisan legislation modeled after successful reforms in Texas and other states to help ex-offenders reenter society. The legislation, which was approved this week by the House Judiciary Committee, mirrors previous corrections legislation sponsored by Cornyn that he said can reduce recidivism, save taxpayer dollars, and cut crime.
Prison reform has been a priority for Kushner, who has become the face of a White House-backed bill that is advancing despite internal GOP differences over sentencing reforms that are favored by Democrats but opposed by Trump. Cornyn, the No. 2 Republican in the Senate, is expected to be a key negotiator in moving the bill forward.
A professor at the University of California Davis School of Law predicts Supreme Court justices will defend the First Amendment principles of free speech against government attempts to curb Internet abuses—even when those abuses involve promoting falsehoods online.
How will the Roberts Supreme Court weigh in on the emerging debate over how to prevent the abuse of online media and social networks?
A forthcoming paper argues that, although the justices are now evenly divided between “technology optimists and technology pessimists,” they are likely to defend the principles of free speech against attempts to regulate content on the Internet.
Ashutosh Bhagwat, a law professor at the University of California Davis School of Law, bases his prediction on several recent rulings—although he notes that it is “astonishing” that Internet and free speech issues have rarely been addressed in the 12 years since Chief Justice John Roberts was appointed.
“It seems inevitable that going forward, this is going to change,” Bhagwat writes in an article scheduled for publication this month in the Washington University Law Review.
“Recent calls to regulate ‘fake news’ and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues.”
Basing his analysis on reviews of several cases brought before the Roberts Court, Bhagwat identifies Justices Roberts and Samuel Alito as the “pessimist” justices most in favor of stricter regulation; and Justices Anthony Kennedy, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan as those most aligned with defending free speech.
The remaining justices—Clarence Thomas, Stephen Breyer and Neil Gorsuch—are somewhere in the middle, he writes.
Packingham concerned a challenge to a North Carolina statute that forbade any registered sex offender from accessing a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.
The Court upheld the challenge, ruling the statute unconstitutional. Justice Kennedy, writing for the majority, held that First Amendment protections could be constitutionally extended to the “vast democratic forums of the Internet…and social media in particular.”
The Court’s decision in a non-Internet case, United States v. Alvarez, which upheld an individual’s right to make a false claim that he had received the congressional Medal of Honor, made clear that “even intentional falsehoods are entitled to some level of First Amendment protection, and there is no reason to expect that principle not to be extended” to cyberspace, Bhagwat wrote.
“Given the enormous risk of self-serving political manipulation or bias posed by government regulation of social media falsehoods on political topics, I would expect all the Justices to balk” at similar attempts to discipline the use of so-called fake news, he added.
Why Supreme Court Justices lean one way or another is uncertain, but Bhagwat argues the Roberts Court’s approach to free speech issues reflects the “longstanding tension in American political thinking between Jeffersonians who embrace change and individual autonomy at the cost of occasional disorder; and Hamiltonians, who embrace order at the cost of occasional limits on liberty.”
But the paper finds that more Justices lean in the direction of free speech and openness when it comes to regulating technology.
“I think it likely, but not certain, that a working majority of the Roberts Court will vote to fend off heavy-handed efforts to assert state control over new technology such as the Internet and social media,” he writes.
He cautions that for the “technology optimists” to succeed in future cases they only have to persuade one of the three “uncertain” Justices, whereas the technology pessimists would have to persuade all three.
Nevertheless, he adds, the most critical element in shaping how the Constitution is interpreted on these issues will be the regulatory initiatives emanating from Congress, the Federal Communications Commission (FCC), and state legislatures.
“If past history is any guide, content-neutral structural regulations such as the Net Neutrality policy adopted by the Obama-era FCC (and recently repealed by the Trump-era FCC) are likely to fare well in courts and the Court, especially given the existence of precedent, authored notably by Justice Kennedy, upholding similar structural regulations of cable television,” writes Bhagwat.