Access Denied: The Digital Crisis in Prisons

As prison law libraries go digital, many inmates are encountering significant barriers to getting the materials they need to pursue their cases. TCR investigates a barrier to justice that has received little attention.

In 2006, jailhouse lawyer Thomas C. O’Bryant sent a handwritten article to the Harvard Civil Rights-Civil Liberties Law Review detailing across 40 pages the never-ending obstacles prisoners face in accessing legal materials.

The editors were so impressed they published the piece, and O’Bryant — who taught himself the law while serving a life sentence in Florida — even lectured at Harvard later that year via telephone.

His message was damning:

 “…the entire system seems to prevent indigent prisoners from obtaining meaningful review of constitutional violations: undereducated prisoners, prisoners with mental disorders, unreliable memories of trial court proceedings, under-trained and under-educated law clerks, ‘psych inmates’ working as law clerks, law libraries with meager resources, restricted access to these law libraries, law clerks, and jailhouse lawyers—the list goes on.”

Twelve years later, he says it’s even worse now.

Thomas O'Bryant

Thomas C. O’Bryant. Photo courtesy Florida Department of Corrections.

“Unfortunately, I believe the problems have gotten worse,” O’Bryant wrote to The Crime Report in an interview conducted by snail mail.

One big reason is Florida’s prison system — and a majority of state prisons systems — have dumped print materials for computer kiosks with subscriptions to legal databases.

“There’s a difference between access and meaningful access,” he wrote. “Some inmates can’t navigate the digital material at all. They were better off with print materials.”

O’Bryant says he typically gets two-and-a-half hours at the library in a week and there’s a high demand for computers: “Twenty to 25 inmates trying to use five computers over a two-and-a-half-hour period. Not much time for each inmate, assuming the inmate even knows how to utilize the software.”

Print is dying in the digital age — and it’s having a significant impact on how prisoners access court.

Prison law libraries are going digital to cut costs. Large text collections, libraries and legal assistants are being replaced by computer kiosks with custom-tailored subscriptions to LexisNexis or Westlaw. Currently, 45 state prison systems and the federal Bureau of Prisons contract with an electronic legal database company, up from nine states a decade ago, according to an investigation by The Crime Report.

While there are some obvious benefits to digital materials — case law is updated easily and inmates can’t rip out pages from of a computer — dumping print materials and human legal aid for a digital subscription has added a barrier to access and weakened prisoners’ ability to pursue their cases. The switch to digital has created a logjam for information and made it easy for prison systems to provide a bare minimum of resources to inmates.

“It’s certainly not a level playing field,” said David Shapiro, director of the MacArthur Justice Center at Northwestern University. “The principal problem is that the creation of digital access is used to undermine print access and what’s available digitally doesn’t necessarily mean everything that was available in print.

“Often it’s a real narrowing of what’s available and it’s pretty narrow already.”

Through interviews with prisoners, attorneys, scholars, librarians and other stakeholders — as well as a review of policies in every state and information provided to this reporter from every state DOC — TCR’s investigation reveals a system where inmates are desperate for legal materials and assistance, but regularly hit roadblocks and have little legal recourse to fight back.

Donna Leone Hamm

Better access to legal materials would have a significant impact on correcting sentencing errors, revealing wrongful convictions and serving as a check into dysfunction and abuse in the nation’s prisons, inmates and advocates told TCR.

“An awful lot of legitimate grievances go unresolved because of the difficulty in accessing the courts and that’s really a tragedy for our society,” said Donna Leone Hamm, a retired lower court judge in Arizona who now runs the criminal justice reform non-profit Middle Ground Prison Reform.

Free-For-All

 1996 was a big year for prison law libraries.

That year, the Supreme Court decided in Lewis v. Casey that “prisoners did not have a “freestanding right to a law library or legal assistance.” The decision limited a previous Supreme Court ruling from 1977, Bounds v. Smith, which said prisoners’ constitutional right to access courts required prisons to assist inmates in filing legal papers through libraries or trained legal professionals.

Since Lewis, it’s been a free-for-all.

Idaho sold its legal collection on eBay for $100 and Iowa tossed its books into the prison courtyard to rot. In the 22 years since that decision, there’s been a mishmash of methods of providing inmates access to courts from behind bars, with most states jumping to cheaper options as they become available.

A year after the decision, South Dakota eliminated its prison law libraries and contracted an attorney and paralegal to assist inmates with legal matters. According to state corrections authorities, it was cheaper than maintaining those heavy (and pricey) law books.

Jump ahead 20 years and it’s now cheaper to buy a customized subscription to an electronic legal database, so the South Dakota Department of Corrections in September ended its contract with the attorney, and contracted LexisNexis for one-year at a cost of $54,720 (far less than its $135,400 legal aid contract).

Newspaper editorials and prisoners’ rights advocates immediately questioned the move. Can tablets or touch-screen kiosks with LexisNexis replace human legal assistance and still fulfill prisoners’ constitutional right to access courts?

The law says it’s OK.

Because of Lewis v. Casey, it’s nearly impossible for prisoners to prove a prison’s lack of resources hindered their access to court, which is why similar lawsuits are routinely tossed. Essentially, the ruling meant prisoners must prove in court that inadequate legal resources hindered their access to court — which prisoners and scholars have criticized as a paradox.

Inmates in South Dakota are indeed suing, with complaints about faulty equipment and the need for human legal aid hindering their access to court. Lawsuits like this are filed regularly in courts across the country alleging similar problems: time restrictions, limited materials, inadequate library staff and retaliation from prison officials for filing lawsuits. But because of Lewis, they are routinely tossed.

Digital Problems

While the switch from physical books to digital databases might seem to make it easier to get more legal materials to prisoners, in many states it’s had the opposite effect.

Unlike typical LexisNexis or Westlaw subscriptions at state law libraries or in legal offices, terminals with electronic legal databases in prisons are not connected to the Internet. Instead they are computer terminals or touch-screen kiosks with DVDs or hard drives loaded with a customized list of resources and case law that is updated every month or so.

LexisNexis still provides physical books to some prison systems, but such printed materials are slowly disappearing. LexisNexis formed a corrections division in 2008 dedicated to prison sales.

“When we started this division it was 90 percent print,” said Kevin Taylor, LexisNexis’ account manager for Eastern and Central United States. “Now it has completely flipped, 90 percent of our customers are using something electronic.”

As prisons go digital, they typically stop updating their print books or discard them. While it’s more reliable to get updated case law or statutes through one of these databases, inmates complain it’s created a logjam for information.

In the past if a dozen inmates needed different books, they could all work at the same time by ordering them individually from the prison librarian. But now there are lines to get on one of the computer terminals or kiosks.

One state, Oklahoma, actually decided to keep its old books because it helps free up lines at their Westlaw terminals. LexisNexis’ Taylor said they recommend one terminal for every 100 or 125 inmates, but “there are no regulations that we are aware of” and depends entirely on what a state wants to spend.

To make matters worse, the number of texts available to prisoners is shrinking as prisons go digital.

Prisons ask the legal database companies to tailor their digital collection to include only materials they are required to have (required materials vary by state and often created by law or court opinion). Decades ago, some prison libraries had collections that rivaled law firms and included books donated from schools, lawyers or non-profits.

That’s largely gone now.

“We have this conversation with administrators all the time,” said LexisNexis’ Taylor. “There really is a bright line in the sand in what you have to have and what would be nice to have.”

For example, a common suit filed by prisoners is a habeas corpus petition based on ineffective assistance of counsel. To pursue this claim, a pro se litigant might need to understand police procedure, jury selection or scientific evidence like DNA. Whereas articles or books on these topics are readily available online or at public law libraries, it’s rare to find them in the custom-tailored legal database subscriptions.

“…the prosecution has experts available to help prepare their cases, medical doctors, biomechanical engineers, psychologists, etc. The pro se litigant? He gets a boilerplate form to fill out and copies of case law. Good luck,” the Florida jailhouse lawyer O’Bryant wrote to The Crime Report.

 O’Bryant argued the Antiterrorism and Effective Death Penalty Act (AEDPA) — which created a one-year time limit for prisoners filing federal habeas corpus petitions — causes inmates to race against a ticking clock and it’s nearly impossible to file meaningful suits with a never-ending series of obstacles in accessing the legal information they need.

He’s not alone.

“You never get enough time,” Lorenzo Johnson wrote to The Crime Report from a Pennsylvania prison before eventually getting released after fighting his conviction for 22 years. “You have to submit a prison request slip two weeks in advance for sessions. If you’re lucky, you might receive three sessions tops a week for two to two-and-a-half hours a session.”

While most legal research from behind bars has gone digital, the actual filing of lawsuits is still very much in the paper world.

Nevada is currently conducting a pilot program that allows inmates to file conditions of confinement cases electronically, but typically inmates get paper, a pen, an envelope and postage. They fill out forms by hand — or copy the forms by hand from a computer before filling them out — and send them to court through the mail.

Getting to that point can be challenge.

prisoner

Illustration by Adam Wisnieski

Regulations vary state to state. For example, Hawaii’s prison policy only guarantees inmates at least three hours per week at the law library, with “the possibility” of three additional hours if an inmate has a verified lawsuit in court. Nevada allows inmates one pen per month. Pennsylvania charges $1.50 for a copy of a government form. Few state prison systems employ actual librarians to assist inmates.

The Crime Report found only eight state prison systems that employ librarians with Master’s degrees in library science to assist inmates.

For the most part, legal assistance is provided by fellow inmates who take a class and work as “inmate law clerks.” Vermont even trains inmates to serve as ILLs, or “Inmate Law Librarians.” If you’re lucky to know a jailhouse lawyer, that can help. But states like Florida or Utah have bans on inmates possessing another’s legal materials, making it difficult for inmates to assist others.

Aside from lawsuits, prisoners have fought back in other ways. In 2013, 29,000 California inmates went on hunger strike. They were protesting solitary confinement, but included “more access to the law library” in their list of demands.

New Jersey inmates won a small victory in 2015 when they successfully petitioned the state prison system to lower the cost of photocopying legal materials from 10 cents per page to 5 cents per page.

Courts are supposed to give additional leeway to handwritten pro se lawsuits. But it’s not always that nice.

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” former 7th Circuit Court of Appeals Judge Richard Posner told The New York Times last year after announcing he was retiring so he could dedicate his life to helping pro se litigants.

 Librarians to the Rescue?

“Before I came along our letters from inmates would go in the trash,” says Elizabeth Johnson, a reference librarian and professor at Wake Forest University.

In 2013, Johnson started the Prison Letters Project, a pro bono program where law students field requests for legal assistance from North Carolina prisoners. Students send copies of case law, articles or chapters of books. Everything they send to prisoners is freely available online, like Google Scholar or the North Carolina state website that has a copy of state law and statutes.

“I see it as a librarian’s civil duty,” she says of the project. “I, personally, felt a strong conviction to help assist inmates in their information needs as a part of access to justice, bringing legal information and access to courts to those who are under-served and unable to access these materials.”

In recent years, other librarians have started similar programs to assist inmates and the American Association of Law Libraries (AALL) maintains a list of every program in the country.

A few years ago, Sara Gras, then a law librarian at Georgetown Law, saw a demand for legal materials from prisoners and overhauled their program to allow requests from every state. Over five months in early 2015, they received 610 requests from prisoners across the country and continue to field requests.

“People ask me if I’m ever concerned [that] I’m helping guilty people get out of prison and the answer is no,” she said at a conference sponsored by the AALL on how librarians can support requests from prisoners.

“What we are doing through these types of programs is providing an opportunity for those who cannot afford good legal representation to stand up for themselves and make a case for their rights, according to the same policies and procedures that those who are more economically advantaged have access to.”

Adam Wisnieski

Adam Wisnieski

“This really matters to me as a lawyer, as a librarian, as a person.”

 This story was made possible through the generous support of a Freelance Fellowship grant from Investigative Reporters & Editors (https://www.ire.org/). Adam Wisnieski is a freelance reporter based in Connecticut and a contributor to TCR. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.

from https://thecrimereport.org

ACLU Says Amazon Rekognition Matches Pols, Arrestees

Facial recognition technology made by Amazon that is being used by some police departments and other organizations incorrectly matched 28 members of Congress with people who had been charged with a crime, says the American Civil Liberties Union.

Facial recognition technology made by Amazon that is being used by some police departments and other organizations incorrectly matched U.S. Reps. John Lewis (D-GA) and Bobby Rush (D-IL) with people who had been charged with a crime, says the American Civil Liberties Union, reports the New York Times. The errors emerged in a larger test in which the civil liberties group used Amazon’s facial software to compare the photos of all federal lawmakers against a database of 25,000 publicly available mug shots. In the test, the Amazon technology incorrectly matched 28 members of Congress with people who had been arrested, a 5 percent error rate.

The test disproportionally misidentified African-American and Latino members of Congress as the people in mug shots. “This test confirms that facial recognition is flawed, biased and dangerous,” said Jacob Snow of the Northern California ACLU. Three of the misidentified legislators — Senator Edward Markey (D-MA), Rep. Luis Gutiérrez (D-IL) and Rep. Mark DeSaulnier (D-CA), wrote Jeff Bezos, the chief executive of Amazon, saying there are “serious questions regarding whether Amazon should be selling its technology to law enforcement at this time.” Nina Lindsey, an Amazon Web Services spokeswoman, said customers had used the facial recognition technology for beneficial purposes, including preventing human trafficking and reuniting missing children with their families. She said the ACLU used the company’s face-matching technology, called Amazon Rekognition, differently during its test from what the company recommended for law enforcement customers.

from https://thecrimereport.org

ACLU Says Amazon Rekognition Matches Pols, Arrestees

Facial recognition technology made by Amazon that is being used by some police departments and other organizations incorrectly matched 28 members of Congress with people who had been charged with a crime, says the American Civil Liberties Union.

Facial recognition technology made by Amazon that is being used by some police departments and other organizations incorrectly matched U.S. Reps. John Lewis (D-GA) and Bobby Rush (D-IL) with people who had been charged with a crime, says the American Civil Liberties Union, reports the New York Times. The errors emerged in a larger test in which the civil liberties group used Amazon’s facial software to compare the photos of all federal lawmakers against a database of 25,000 publicly available mug shots. In the test, the Amazon technology incorrectly matched 28 members of Congress with people who had been arrested, a 5 percent error rate.

The test disproportionally misidentified African-American and Latino members of Congress as the people in mug shots. “This test confirms that facial recognition is flawed, biased and dangerous,” said Jacob Snow of the Northern California ACLU. Three of the misidentified legislators — Senator Edward Markey (D-MA), Rep. Luis Gutiérrez (D-IL) and Rep. Mark DeSaulnier (D-CA), wrote Jeff Bezos, the chief executive of Amazon, saying there are “serious questions regarding whether Amazon should be selling its technology to law enforcement at this time.” Nina Lindsey, an Amazon Web Services spokeswoman, said customers had used the facial recognition technology for beneficial purposes, including preventing human trafficking and reuniting missing children with their families. She said the ACLU used the company’s face-matching technology, called Amazon Rekognition, differently during its test from what the company recommended for law enforcement customers.

from https://thecrimereport.org

Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Cops Need Warrant to Obtain Cellphone Data, High Court Rules

The 5-4 decision announced Friday is a victory for privacy in the digital age. The case marks a major change in how police can obtain phone records. Chief Justice John Roberts wrote the majority opinion, joined by the court’s four liberals.

The Supreme Court ruled on Friday that police generally need a search warrant if they want to track criminal suspects’ movements by collecting information about where they’ve used their cellphones, The Associated Press reports. 

The 5-4 decision is a victory for privacy in the digital age. Police collection of cellphone tower information has become an important tool in criminal investigations. The case marks a major change in how police can obtain phone records.

Authorities can obtain information about the numbers dialed from a home telephone without presenting a warrant. Chief Justice John Roberts wrote the majority opinion, joined by the court’s four liberals.

Roberts said the decision is limited to cellphone tracking information and does not affect other business records, including those held by banks. “We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party,” he said. He added that police still can respond to an emergency and obtain records without a warrant.

Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch dissented. Kennedy said the court’s “new and uncharted course will inhibit law enforcement” and “keep defendants and judges guessing for years to come.”

In a separate dissent, Alito said, “I fear that today’s decision will do far more harm than good.” He said “it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices.”

The appeal was brought by Timothy Carpenter, who was sentenced to 116 years in prison for his role in robberies of Radio Shack and T-Mobile stores in Michigan and Ohio. Cell tower records that investigators got without a warrant bolstered the case against Carpenter. Investigators got the cell tower records with a court order that requires a lower standard than the “probable cause” needed to obtain a warrant.

The American Civil Liberties Union, representing Carpenter, said a warrant would provide protection against unjustified government snooping. Technology companies including Apple, Facebook and Google urged the Justices to continue bringing Fourth Amendment law into the modern era, reports the New York Times.

“No constitutional doctrine should presume,” their brief said, “that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.”

This summary was prepared by Ted Gest, president of Criminal Justice Journalists, and Washington Bureau Chief of The Crime Report.

from https://thecrimereport.org

‘No Rules’ as Police Use of Facial Recognition Tech Spreads

Amazon has joined the growing number of companies selling facial recognition technology to law enforcement agencies, offering to “identify persons of interest against a collection of millions of faces in real-time.” Civil libertarians are nettled. “This is a perfect example of technology outpacing the law,” says the Electronic Frontier Foundation.

The revelation this week that Amazon is selling facial-recognition technology–branded Amazon Rekognition–to law enforcement agencies raised questions about which laws or  regulations govern police use of the technology. The answer: more or less none, reports Wired. More than two dozen nonprofits wrote to Amazon CEO Jeff Bezos to ask that he stop selling its technology to police, after the ACLU of Northern California revealed documents to shine light on the sales. Amazon says its technology can “identify persons of interest against a collection of millions of faces in real-time.” The letter argues that Amazon Rekognition “is primed for abuse in the hands of governments.”

State and federal laws generally leave police departments free to do things like search video or images collected from public cameras for particular faces. Cities and local departments can set their own policies and guidelines, but even some early adopters of the technology haven’t done so. Documents released by the ACLU show that Orlando, Fla., worked with Amazon to build a system that detects “persons of interest” using eight public-security cameras. “Since this is a pilot program, a policy has not been written,” a city spokesperson said when asked about guidelines for its use. “This is a perfect example of technology outpacing the law,” says Jennifer Lynch of the Electronic Frontier Foundation. “There are no rules.” Other companies offer similar technology, including Massachusetts-based MorphoTrust, which works with the FBI, and South Carolina’s Data Works Plus, which has worked with Detroit police.

from https://thecrimereport.org

New Data Spying Law Was Slipped Into Spending Bill

The CLOUD Act is an attempt to update an obsolete stored communications law that was passed in the 1980s before the World Wide Web existed. Sen. Rand Paul of Kentucky opposed the proposal as a violation of Americans’ privacy. He tweeted, “But guess what? Congress can’t vote to reject the CLOUD Act, because it just got stuck onto the Omnibus (spending bill), with no prior legislative action or review.”

Police in other countries will be able to get emails and other electronic communication more easily from their own citizens and from Americans under a bill that Congress stuffed inside the massive $1.3 trillion spending deal passed last week, says USA Today. Supporters said the bill, dubbed the CLOUD Act, will simplify the process for the U.S. government and its allies to get evidence of serious crimes and terrorist threats when that evidence is stored on a server in another country. Opponents, including civil liberty and privacy rights groups, said the law could make it easier for nations with human rights abuses to spy on dissidents and collect data on Americans who communicate with foreign nationals. Internet providers had been able to legally stop police agencies from gaining access to their own citizens’ emails if those emails were stored in a foreign nation. Microsoft stores data on about 1 million servers in 40 countries.

“Tucked away in the omnibus spending bill is a provision that allows Trump, and any future president, to share Americans’ private emails and other information with countries he personally likes,” said Sen. Ron Wyden, D-Ore. “That means he can strike deals with Russia or Turkey with nearly zero congressional involvement and no oversight by U.S. courts.” In a letter to Congress, the ACLU, the Electronic Frontier Foundation, Human Rights Watch and 20 other civil liberties groups said the CLOUD Act allows foreign governments to wiretap on American soil, using standards that don’t comply with U.S. law, and gives the executive branch the power to enter into agreements with other nations without congressional approval.

from https://thecrimereport.org

An ‘Independent’ FBI  Would Threaten US Civil Liberties: Paper

Calls for greater independence of the FBI in the wake of concerns about the Trump investigation are misguided, says a University of Louisville law professor. He argues those who worry about presidential interference should support creating a separate federal crime agency while keeping its counterintelligence functions answerable to the president.

The best way to ensure the independence of the Federal Bureau of Investigation (FBI) from the president while maintaining civilian control is to split the agency into separate organizations for criminal investigation and national security, argues a  paper published in the George Washington Law Review.

Calls for the “independence” of the FBI, particularly in the wake of controversy connected with President Donald Trump’s efforts to halt the investigation into his campaign’s connection with Russia, are “misguided and dangerous,” wrote Justin Walker of the Louis D. Brandeis School of Law at the University of Louisville.

Although Walker writes he is not advocating splitting the agency, he says that those worried about  presidential interference in the FBI’s criminal investigation should consider such a move instead of trying to make the “entire agency independent,” which he warns would violate the principle of civilian control of the military.

Giving such blanket independence to the FBI would threaten civil liberties and undermine the warnings expressed by the Founding Fathers about a military outside of civilian control.

“Just as distinct political, religious, and ethnic groups were often targeted by the armies whose abuses in Britain and the colonies caused the founders’ skepticism of standing armies, so too for individuals and groups targeted by the FBI,” wrote Walker.

The article details the history of civil liberty infringements associated with the FBI’s national security efforts, through the early 20th century to the post 9/11 world, listing abuses such as “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African-Americans.”

While the author also extols the FBI’s achievements, he notes that keeping the agency accountable to the president and congress is essential.

“The FBI director should not think of himself as the Nation’s Protector,” Walker wrote. “Instead he must think of himself as an agent of the president. Of course like any military officer, he should give candid advice and like any military officer, he should not obey illegal orders.

“But he must not make the mistake of (former) Director J. Edgar Hoover and view himself as an independent force who can decide for himself what practices to pursue, what politics to embrace, and what commands from the president or attorney general to obey.”

Walker warned, “When the FBI is independent of the president, it is independent of us—and of anyone.”

The article says splitting the agency into two separate units –one for criminal investigations and one for security—“would be consistent with the principle of civilian control of the military,” and follow a model used by other countries such as the United Kingdom, where MI 5 is in charge of counterterrorism, counterintelligence and domestic intelligence; and New Scotland Yard is responsible for criminal investigation.

Walker said the 9/121 Commission came close to recommending such a reform.

But the effort failed after “extensive lobbying” by then-FBI Director Robert Mueller, who currently heads the probe into the Trump campaign.

The full paper can be downloaded here.

TCR news intern John Ramsey contribute to this summary. Readers’ comments are welcome.

from https://thecrimereport.org

Keep Police Use of Big Data to ‘Acceptable Boundaries,’ says Study

Policymakers have still not moved to protect Americans’ constitutional rights to freedom of speech and association from the misuse of “Big Data,” according to an expert on information and privacy law. 

Despite evidence that state and federal law enforcement agencies have contracted with data analytics firms to mine information from social media users, policymakers have still not moved to protect Americans’ constitutional rights to freedom of speech and association from the misuse of “Big Data,” according to an expert on information and privacy law. 

The revelations underline the need for new approaches to transparency in order to ensure that police use of Big Data remains within “acceptable boundaries,” Teresa Scassa, Canada Research Chair in Information Law and Policy at the University of Ottawa, wrote in a paper posted in ScriptedThe disclosures from the American Civil Liberties Union (ACLU) and the Brennan Center for Justice in 2016 did not say what kind of information police are collecting, or how they use it. 

According to Scassa, the questions that need answering before tackling police use of data mining services include:

  • Is metadata culled from private social media companies like Twitter and Facebook still public once it is sold to an analytics company like Geofeedia?
  • When the algorithms and software used by private companies to process the data constitute trade secrets, is the end product they sell to clients truly “publicly available” or “publicly accessible?”
  • Even when individual pieces of information are public, does the full picture afforded by large data sets trespass on privacy?

Private Industry Self-Policing

Scassa went on to note that while we’re still chasing down the shifting boundaries of public and private information, we lack a system of governance in place to hold industry and law enforcement accountable for what kind of data they purchase, and how they use it.

When the ACLU raised an alarm over law enforcement contracts with the data analytics company Geofeedia, which offered geographic data on private citizens culled from social media accounts like Twitter and Facebook, the backlash was immediate. Social media companies scrambled to revise their policies, wanting to distance themselves as much as possible from police surveillance activities.

Facebook, Instagram, and Twitter all terminated Geofeedia’s access to public user data, and a week later, Geofeedia announced it had laid off half of its workforce.

Other third party data mining companies that were hauled into the spotlight, including Snaptrands and Dataminr, also pivoted in terms of how they marketed their services.

While “Snaptrends’ website has not referenced any relationships with law enforcement or national security,” since March of 2017, writes Scassa, the company still identifies “public safety organizations” as a sector that can benefit from its data.

Facebook’s Platform Policy for developers now stipulates that developers should not “use data obtained from us to provide tools that are used for surveillance.” But compliance is voluntary, lacking any legislative teeth or transparency mechanisms.. While Facebook can audit 3rd party usage of its data, the public cannot.

Transparency

“The public nature of social media data undermines traditional oversight and transparency paradigms, particularly those based on privacy norms,” writes Scassa. “This is in large part because social media data is considered to be public.”

The use of this data is relatively low-cost compared to other types of surveillance activities, and for the time being, sidesteps the burdensome warrant process. Until analytics companies came on the scene, law enforcement could perform manual searches of social media without a warrant, but other kinds of searches might require a paper trail, allowing some accountability in the courts.

Analytics applied to large volumes of data “can be quite sophisticated and can include mapping, predictive policing, profiling, the use of facial recognition software, and so on,” writes Scassa. And what sets it apart from other types of information garnered by law enforcement is its potential use for predictive policing, as opposed to being focused on a specific event– raising “issues of targeting and profiling.”

“Public disclosures of police service contracts do not reveal” how public data is processed or used; and emails obtained by the UCLA to and from 63 police departments across the country in the Geofeedia case only show how the company marketed its services. In emails, Geofeedia cited protests following the deaths of Freddie Grey and Michael Brown “as examples of its usefulness to police services,” a fact that Scassa says “aggravated a climate of mistrust, racial division, and a sense that the authorities were using surveillance and profiling to target minority communities.”

In addition to privacy concerns, “big data analytics used in surveillance may involve constitutional values such as the freedoms of speech and association, as well as anti-discrimination values…. for example, a search algorithm that includes the hashtag “BlackLivesMatter” identifies individuals on the basis of both political speech and association with a group or movement.”

The full article, Law Enforcement in the Age of Big Data and Surveillance Intermediaries: Transparency Challenges, is available for free download here. This summary was prepared by Deputy Editor Victoria Mckenzie. She welcomes readers’ comments.

from https://thecrimereport.org