justice


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Police can take your money or property and keep it, even if no charges are filed. Clarence Thomas is famously taciturn on the bench. But his few words carry a great deal of weight. Though the matter has not yet come before the Supreme Court, Justice Thomas is very much at the center of a federal case with a name that sounds like it ought to have come from a William Gaddis novel: United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency. The case has the potential to help rein in one of the most abused powers enjoyed by American government: asset forfeiture. The case involves a New York couple, Angela Rodriguez and Joyce Copeland, who lost the above-mentioned $17,900 to police in a case in which no charges were ever filed against them. They sued for recovery of their money, and — incredibly — a federal court found that they lacked standing to sue for possession of their own assets.

The D.C. Circuit Court sees things differently and has ruled in favor of allowing Rodriguez and Copeland to at least have their day in court and attempt to reclaim their money. Current asset-forfeiture practice, like much that is wrong with U.S. law enforcement, has its roots in the so-called war on drugs. The practice of seizing assets is ancient: It dates back at least to 17th-century maritime law, under which ships illegally transporting goods would be seized, along with the contraband inside.

Asset forfeiture was used against bootleggers during Prohibition, but it really came into its own in the Reagan era, when the Comprehensive Crime Control Act of 1984 empowered federal and local law-enforcement agencies to take property from drug kingpins for their own use. The sudden, unlikely inventory of exotic cars and yachts possessed by law-enforcement agencies inspired that great cultural document of the 1980s: Miami Vice.

Asset forfeiture creates an obvious conflict of interest for law-enforcement agencies: Because the proceeds go into their budgets, they have a vested interest in maximizing the use of forfeiture in their jurisdictions. You will be less than surprised to learn that this has produced some serious abuses, and the law-enforcement tool intended to be used against centimillionaire cartel bosses inevitably ends up being used to harass — and loot — nobodies in East Funky.

That is the nature of such innovations in government. It is why the city won’t fix your potholes but the revenue-producing red-light camera is never on the fritz for long. (Here’s a prediction: In a fashion similar to that of the weapons in the war on drugs, the tools created for the so-called war on terror are going to present acute problems for Americans in 20 years — far beyond what they already have — as their metastatic spread throughout government continues.)

The spreading use of forfeiture has of course drawn resistance amid concerns about due process and outright abuse. The Supreme Court declined to hear a high-profile forfeiture case, Leonard v. Texas, for procedural reasons. But Justice Thomas issued a statement on the case that was both erudite and blistering. It was also very humane: Justice Thomas has a keen interest in the literary details as well as the legal ones. He wrote: This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.

According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

The issue, Justice Thomas wrote, is “whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.” Because these asset-forfeiture proceedings are civil rather than criminal actions, their targets do not enjoy the ordinary procedural protections that they would if they were charged with crimes, the most important of those being jury trials and the heightened standard of evidence demanded in criminal proceedings. Forfeiture cases in effect allow police to punish people for committing crimes without having to go to the trouble of proving that they have committed those crimes. And the fact that the police get to keep the money does not exactly discourage them.

The fact that the practice is a longstanding one does not mean that it is a constitutional one. The fact that the practice is a longstanding one does not mean that it is a constitutional one. We are not seizing the unflagged vessels of smugglers at colonial ports; and even if we were, it is not clear, as Justice Thomas notes, that those seizures were permitted to advance as purely civil matters unconnected to any underlying criminal charge. Due process does not have a great many friends just now: Congressional Democrats have made a campaign out of revoking the civil rights of Americans put on secret government terrorism watch lists, even if those people have never been charged with, much less convicted of, any actual crime.

These episodes are a constant reminder that what conservatives intend to conserve, and what progressives intend to progress away from, is Anglo-American liberalism, with its individual rights, procedural justice, and rule of law. Leonard wasn’t the case that will be used to sort out forfeiture, but Justice Thomas’s Leonard statement was repeatedly cited in the ruling for the plaintiffs in United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency. Justice Thomas may not say very much on the bench, but he has made it clear that when forfeiture finally does come before the nation’s highest court, at least one gimlet-eyed justice is going to be skeptical.

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SHIRLEY SCHMITT is no one’s idea of a dangerous criminal. She lived quietly on a farm in Iowa, raising horses and a daughter, until her husband died in 2006. Depressed and suffering from chronic pain, she started using methamphetamine. Unable to afford her habit, she and a group of friends started to make the drug, for their own personal use. She was arrested in 2012, underwent drug treatment, and has been sober ever since. She has never sold drugs for profit, but federal mandatory minimum rules, along with previous convictions for drug possession and livestock neglect, forced the judge to sentence her to ten years in prison. Each year she serves will cost taxpayers roughly $30,000—enough to pay the fees for three struggling students at the University of Iowa. When she gets out she could be old enough to draw a pension.

Barack Obama tried to reduce the number of absurdly long prison sentences in America. His attorney-general, Eric Holder, told federal prosecutors to avoid seeking the maximum penalties for non-violent drug offenders. This reform caused a modest reduction in the number of federal prisoners (who are about 10% of the total). Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers “moral and just”. It is neither.

More is not always better

Prisons are an essential tool to keep society safe. A burglar who is locked up cannot break into your home. A mugger may leave you alone if he thinks that robbing you means jail. Without the threat of a cell to keep them in check, the strong and selfish would prey on the weak, as they do in countries where the state is too feeble to run a proper justice system.

But as with many good things, more is not always better (see article). The first people any rational society locks up are the most dangerous criminals, such as murderers and rapists. The more people a country imprisons, the less dangerous each additional prisoner is likely to be. At some point, the costs of incarceration start to outweigh the benefits. Prisons are expensive—cells must be built, guards hired, prisoners fed. The inmate, while confined, is unlikely to work, support his family or pay tax. Money spent on prisons cannot be spent on other things that might reduce crime more, such as hiring extra police or improving pre-school in rough neighbourhoods. And—crucially—locking up minor offenders can make them more dangerous, since they learn felonious habits from the hard cases they meet inside.

America passed the point of negative returns long ago. Its incarceration rate rose fivefold between 1970 and 2008. Relative to its population, it now locks up seven times as many people as France, 11 times as many as the Netherlands and 15 times as many as Japan. It imprisons people for things that should not be crimes (drug possession, prostitution, unintentionally violating incomprehensible regulations) and imposes breathtakingly harsh penalties for minor offences. Under “three strikes” rules, petty thieves have been jailed for life.

A ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%. Many states, including Mr Sessions’s home, Alabama, have decided that enough is enough. Between 2010 and 2015 America’s incarceration rate fell by 8%. Far from leading to a surge in crime, this was accompanied by a 15% drop.

America is an outlier, but plenty of countries fail to use prison intelligently. There is ample evidence of what works. Reserve prison for the worst offenders. Divert the less scary ones to drug treatment, community service and other penalties that do not mean severing ties with work, family and normality. A good place to start would be with most of the 2.6m prisoners in the world—a quarter of the total—who are still awaiting trial. For a fraction of the cost of locking them up, they could be fitted with GPS-enabled ankle bracelets that monitor where they are and whether they are taking drugs.

Tagging can also be used as an alternative to locking up convicts—a “prison without walls”, to quote Mark Kleiman of New York University, who estimates that as many as half of America’s prisoners could usefully be released and tagged. A study in Argentina finds that low-risk prisoners who are tagged instead of being incarcerated are less likely to reoffend, probably because they remain among normal folk instead of sitting idly in a cage with sociopaths.

Justice systems could do far more to rehabilitate prisoners, too. Cognitive behavioural therapy—counselling prisoners on how to avoid the places, people and situations that prompt them to commit crimes—can reduce recidivism by 10-30%, and is especially useful in dealing with young offenders. It is also cheap—a rounding error in the $80 billion a year that America spends on incarceration and probation. Yet, by one estimate, only 5% of American prisoners have access to it.

The road to rehabilitation

Ex-convicts who find a job and a place to stay are less likely to return to crime. In Norway prisoners can start their new jobs 18 months before they are released. In America there are 27,000 state licensing rules keeping felons out of jobs such as barber and roofer. Norway has a lower recidivism rate than America, despite locking up only its worst criminals, who are more likely to reoffend. Some American states, meanwhile, do much better than others. Oregon, which insists that programmes to reform felons are measured for effectiveness, has a recidivism rate less than half as high as California’s. Appeals to make prisons more humane often fall on deaf ears; voters detest criminals. But they detest crime more, so politicians should not be afraid to embrace proven ways to make prison less of a school of crime and more of a path back to productive citizenship.

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Led Zeppelin has been found not guilty of copyright infringement over the band’s song “Stairway to Heaven,” following a two-day jury deliberation in the case, Reuters reports.

The trust of deceased songwriter Randy Wolfe, otherwise known as Randy California from the band Spirit, was seeking “millions of dollars and a third of the songwriting credit” for the eight-minute Led Zeppelin anthem from 1971.

In the trial, the lawyer behind Wolfe’s estate accused the Zeppelin band members of “selective memories and convenient truths” in their testimony regarding their knowledge of the Spirit song in question, a 1968 instrumental song called “Taurus.”

In his closing statements, Led Zeppelin’s attorney, Peter Anderson, said the plaintiff failed to present adequate evidence for the copyright claims of the passage in question — which Anderson claimed to be “a common descending chord sequence in the public domain.”

Anderson also argued that the case should have been brought to trial when Wolfe was still alive and Plant and Page would have been better able to recall the song’s creation.

“How can you wait a half century and criticise people … 45 years later for the delay you caused?” Anderson said. “They should have sued in 1972.”

It looks as if it was decided on a Summary Judgment.

Even if it had gone to trial, it would have been unlikely to win.

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The rate of convictions is the highest in at least 35 years, prompting concerns from lawyers and a politician about the justice system’s soundness.

Statistics New Zealand figures reveal more than 83 per cent of adults prosecuted in court last year were convicted. The rate has risen in 10 of the past 11 years, and in the past two years has been the highest since 1980, the earliest data available.

Former New Zealand Law Society president Jonathan Temm said despite appearing to indicate a healthy justice system, the conviction rate was actually too high, with people being convicted incorrectly.

“It’s heading the wrong way. Our level should be constantly around the 75 per cent mark, and anything over 80 per cent is a reflection that people are pleading guilty to things that in the past they would not have been convicted of,” Mr Temm said.

Whangarei lawyer Wayne McKean said the judicial system “heavily incentivises” defendants to plead guilty, affecting the conviction rate.

One reason was prosecutors over-charged defendants to increase their strength in plea-bargaining.

“If a defendant pleads guilty to the lesser charge they’ll withdraw the more serious charge,” Mr McKean said. “It elevates the risk to the defendant if he doesn’t accept it.

“I think that’s wrong, using more serious charges as leverage.”

The Law Society and the Criminal Bar Association had expressed concerns at police and Crown Solicitors laying “inappropriately serious charges” against offenders. The police acknowledged this occurred but said it was usually due to inexperience.

The rise in conviction rate coincides with the lowest number of people going through court nationwide since at least 1980. The figure has dropped almost 40 per cent since 2009 – from 127,000 prosecutions to fewer than 77,000 nationwide.

Labour’s police spokesman Stuart Nash said he was concerned about the sharp decrease. “It says to me that the police just haven’t got the resources to catch the bad guys.

“The last thing we want … is to have any sort of questioning of the validity of our justice system.”

Lawyer Stephen Ross said the downward trend in prosecutions was due to police cost pressures.

“It is a budget issue … There’s no doubt about that,” he said.

In a written response to NZME, police said their baseline budget had not been frozen, and their operating funding would increase $41 million a year over the next four years.

Police were making operational changes around the country “to serve their communities better”, but there had been no cuts in staffing.

A 2012 Ministry of Justice report stated a crime reduction target of 15 per cent between 2011 and 2017. But since 2011 prosecution and conviction numbers have fallen 28 per cent and 27 per cent respectively.

The Police Association said a police policy of warning offenders for low-level crimes had gone too far.

“Police have way overshot,” said president Greg O’Connor. “I don’t think anybody believes there are fewer people offending or that there’s less low-level offending taking place.”

He was unsure how the long-term effects of such warnings would balance out against the short-term gains.

“If you are the Government and want to … say the number of arrests have gone down and the number of court appearances have gone down, then yes, it’s a great policy.”

“A spokesperson for Police Minister Judith Collins said the higher conviction rate was a result of fewer prosecutions. The spokesperson said the rate of successful case outcomes – conviction, diversion and discharge without conviction – had been “relatively steady” in the last four years, increasing 1.2 per cent since the 2012/2013 financial year.”

Convictions

as a percentage of adults prosecuted in New Zealand

2015 83.2 per cent

2014 83.5 per cent

2013 82.7 per cent

2012 81.8 per cent

2011 81.7 per cent

2010 79.8 per cent

2009 78.5 per cent

Source: Statistics New Zealand

NZ after the US has the highest incarceration %.
There is a risk of course of pleading not guilty to the alleged pumping up of the charges, but given the grounds that have to be demonstrated on the Crimes Act provisions, if the prosecution are overreaching, plump for a bench trial where the Judge should understand and appreciate that the prosecution are overreaching.

Just in case you thought the Rule of Law applied, think again.

By AZAM AHMED and BEN PROTESS
A criminal investigation into the collapse of the brokerage firm MF Global and the disappearance of about $1 billion in customer money is now heading into its final stage without charges expected against any top executives.

After 10 months of stitching together evidence on the firm’s demise, criminal investigators are concluding that chaos and porous risk controls at the firm, rather than fraud, allowed the money to disappear, according to people involved in the case.

The hurdles to building a criminal case were always high with MF Global, which filed for bankruptcy in October after a huge bet on European debt unnerved the market. But a lack of charges in the largest Wall Street blowup since 2008 is likely to fuel frustration with the government’s struggle to charge financial executives. Just a few individuals — none of them top Wall Street players — have been prosecuted for the risky acts that led to recent failures and billions of dollars in losses.

Yet, in California, following the three strikes law, someone who is starving, steals a bit of food…life imprisonment.

Now I’m not advocating anything except justice, which is a tricky one, but so tricky that stealing a $1 billion dollars of investor money cannot actually be identified as theft? Now this chap wants to open a “Hedge Fund.”

In a Republic, where, the Rule of Law, provides for everyone being treated equally under/by the law, clearly, America, England, have long lost their way. Ford pardoning Nixon, the list is long, and just goes on and on.

Matt Taibbi of Rolling Stone, on the non-prosecution of Goldman Sachs, and you could add a long list, Mozillo of Countrywide, etc. to he list:

…they’ll (The Justice Department) take on somebody like Raj Rajaratnam, who stacked his illegal insider trades so brazenly and carelessly that his case almost reads like a finance version of Jeff Dahmer tripping over bodies in his Milwaukee apartment…Basically, if someone backs a dump truck up to the DOJ and unloads the entire case, gift-wrapped, a contrite and confessing criminal included, a guy like Eric Holder might, after much agonizing deliberation, decide to prosecute.

You know that look a dog gives you when you show it something confusing, like an electric razor or a lawn sprinkler? That’s the look federal prosecutors give when companies like Goldman wave their attorneys’ sanctifying opinions at them.

You can almost feel the relief emanating from Washington when these prosecutors decide against matching wits with the wizened 60 year-old legal Sith Lords from Harvard and Yale who’ve seen everything, know every judge by his or her first name, and in a trial would be basically bringing absolutely everything a lawyer can bring to the table, except consciences of course.

…the Holders of the world do not want to be creative when the targets are politically influential rich people. Instead, they use their creativity against Roger Clemens, Barry Bonds, immigrant housekeepers, and guys who knock over liquor stores. They like to flex muscles against bank robbers, celebrity tax evaders (we can’t have Wesley Snipes on the loose!), truck hijackers, and drug dealers. As Gene Wilder would say, “You know – morons.”
Holder’s non-decision on Goldman is more than unsurprising. It amounts to an official announcement that the government is no longer in the business of prosecuting smart criminals. It’s pathetic. The one thing you pay any lawyer to have is balls, and our nation’s top attorney has none.

Which rather underlines the previous post highlighting the suicides. The bankers, almost to a man, through inept management, criminal actions, and just fucking stupidity, destroyed the financial system and their banks. Rather than face the consequences, prosecution, bankruptcy, removal from their jobs – they get bailed out by the tax-payer, given a free pass with regards to prosecution, and get paid even bigger bonuses.

That is not capitalism. That is Socialism. Where the top feed off of the bottom. The Socialists love to push out endless propaganda, claiming that this is the result of capitalism, but when presented with the arguments, simply avoid the questions and challenges, erecting Straw Men, etc.

What could possibly cause this? The answer is that American football is in very, very serious trouble.

2,450 players have now filed 89 concussion related law suits against the NFL and Riddle Athletics (helmet manufacturer) . All of the State cases are being referred to Federal Court.

I’m no expert on this topic. I follow (among others) ESPN and NFL Concussion Litigation. I have recently talked with four attorneys (none directly involved – all sue for a living). The cut to the chase question for the lawyers was:
“Will there be financial awards?”

Four out of four were quick to answer:
“Yes.”

This will make for an interesting legal case.

I suppose the starting point would be a contract [certainly at the Pro level, & probably at the College level too] The contract would obviously have to address the physicality of the sport and the potential for serious injuries/death from participation.

Without a doubt, the protective clothing/padding, contributes to the speed/strength of collisions/tackles. In rugby, where there is minimal/none of protective padding, the collisions are at lower speeds and impact power. There are still injuries/concussions, but they are I would guess less common frequent. That must therefore open another door as to prescribed/proscribed uses of the equipment.

Then there is the whole area of injury during the game, diagnosis, and management of the player. I read the book “Don’t worry it’s just a bruise” written by an NFL team doctor, and the level of drug useage etc employed to keep key players on the field, and the entire culture around that playing injured. Motorcycle racers ride injured all the time, break a few bones in an off during a practice round, back on for the race: this is not simply an NFL problem, you are dealing with tunnel vision athletes, and as such, very often they may require protecting from themselves, particularly in the case of a concussion where cognitive function will be impaired, and responsible, informed decisions cannot be made.

Ultimately, assuming that the draconian measure of an outright ban, or withdrawal of various participants does not end the game, insurance coverage would seem to be one avenue that could be explored. Of course the issue immediately that comes to mind would be “pre-existing conditions.” Where current players have been playing since grade school, all the way through to pro-level, the insurance risk becomes far higher, and of course, ultimately the insurance would have to commence at the start of the football playing career, in the PeeWee leagues, and be maintained continuously through the playing career.

Tail risk would be a major issue for the insurance companies, someone who played through say College, and developed problems say ten years later, attributable to football injuries. This would be a major stumbling block.

Of course, the game could retrogress as far as protective clothing is concerned. Make the padding far less protective, thus reducing the speed of collisions: remove helmets, return to the leather protective headgear, this will remove the current trend of tackling with the head as a weapon. All you lose are the slo-mo replays of hits that lift people into the air and popping off helmets etc.

Either way, it will be interesting to follow this case and see how it all plays out.

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