Discrimination Nation?

Most people have heard of the slang term “DWB”, Driving While Black, to refer to the higher incidence of black drivers being pulled over compared to white. In some areas, “DWH”, or Driving While Hispanic, is more prevalent. In recent years, Flying While Muslim has become a term used to describe the increased scrutiny faced by anyone who appears to be of Middle Eastern heritage. But now, the New York Police Department is tracking a new group, leading to the emergence of the term Studying While Muslim.

The CIA assisted the NYPD with the development of surveillance methods for Muslim groups in the New York area. The NYPD has used those methods to track and wiretap Muslim groups of all types. Mosques, community groups, even student associations at New England colleges are being investigated.

No evidence needs to be presented in order for a person to be investigated; at least, no evidence beyond religion. Supporters of the NYPD’s surveillance of the Muslim community claim that being associated with a mosque is enough evidence, since terrorists involved with the attacks on September 11, 2001 were associated with a mosque. Likewise, since 12 terrorists who have voiced anti-American sentiment were members of Muslim student groups in college, being a member of a Muslim student group in college is enough to earn investigation.

Author and comedian Dean Obeidallah, a former lawyer, raises the point that freedom of religion is about more than just being allowed to worship as a person pleases. Freedom of religion means that members of a religion should not be persecuted simply for being members of that religion.

The NYPD, perhaps in an effort to make Muslims feel less like they have been singled out, has been disproportionally stopping other minority groups during routine police stops. The New York branch of the ACLU, the NYCLU, released statistics regarding police stops in New York over the last few years. This release shows that while 44% of the general population is white, only 9% of those stopped- for anything from speeding to drug possession- were white.

New York law enforcement is not alone in this trend of racial disparity. The North Carolina branch of the ACLU has been working with local branches of the NAACP to address the misuse of police checkpoints by the Winston Salem police department. This blog has addressed this issue before, and will revisit the issue as the investigation and potential litigation develops.

It seems that the nation has not quite become “post-racial,” in terms of the way minorities are treated. The only steps made have been to no longer single out the black community for unfair treatment, but to include Hispanic and Middle Eastern people.

Are You Ready to Die? Are Your Finances?

Nobody likes to consider their own mortality. As this blog has discussed previously, the majority of Baby Boomers do not have any type of advance directives concerning their end of life care, or medical care in the event of an emergency.

Even more of a concern is the overwhelming amount of paperwork that can be left behind from a person’s death, and this is a concern for more than just Boomers. Many people of all ages are unaware of what their survivors would be left with when they die.

Take a moment and think. This is not a fun hypothetical; no one likes to think about their death and what they will leave behind. Imagine you are in a car accident on your way home tonight, get rushed to the hospital, and are on life support. Imagine- and this is true for the majority of Americans- that you have not created any advance directives, and have never made a will.

Who is making the decision about continuing life support?

Are they making the decision that you would have made?

Now imagine they’ve ended life support, and you’ve died. Continue to ask yourself questions:

Was there enough money to cover my hospital stay?

Is there enough money to bury me?

Does my spouse know that I wanted to be cremated and buried next to the lake?

Will they remember not to have a religious service?

Will my jewelry and other nice things go to the people I want to have them?

Can my spouse access my retirement fund, bank accounts, and car title?

Does my spouse know how to contact my student loan holder?

These are just a few questions you make ask yourself. If you have so many questions that it seems overwhelming, how would it feel for those you leave behind?

People lead such complex financial lives, more than any previous generation. Homes, cars, stocks, retirement funds, commercial debt, student debt, greater options for burial planning- all part of the land of opportunity, but all part of what can easily become a labyrinth of forms that your loved ones must navigate.

The good news is you can make this easier on your loved ones. Take an afternoon and dedicate it to getting your personal business in order. Some things can be done on your own, while others may go smoother with professional assistance.

-Take inventory of your personal possessions. Who gets your jewelry, your antiques, even your shoes?

-Make a list of every website you log in to. Write down the site, your user ID, and your password. Some people recommend saving it to your hard drive, others suggest saving it onto a memory stick and storing it in your fireproof safe in your home.

-Be sure the code to your safe, or key if you have a strongbox instead, is somewhere that a spouse or child knows where it is and can easily access it.

-Inside the safe or strongbox you should have all of your end-of-life paperwork stored. The Wall Street Journal has this excellent guide for what papers may be needed, depending on your situation.

-Consider talking to your banker. Many accounts can be designated Payable on Death, meaning your survivors only need to present a death certificate for the bank to write a check. Using a will or trust to distribute money will be slower, as it must go through probate. However, using a will or trust may be a better option if you prefer your account be divided among more than one person.

-Discuss with a financial professional whether a trust would be appropriate for what you will be leaving to loved ones.

-Make sure you have created a will. One that you write yourself may hold up through probate, especially if properly witnessed and notarized, but discussing this with a lawyer is always a good idea. Often an attorney has helped people in similar situations, and can offer insight into how to best write your will to make it challenge-proof.

-Write or type a letter containing your wishes. What type of burial you prefer, where you wish to be buried, who you would like to speak at your funeral, anything that is important to you.

Remember that even when your life ends, it affects people. Make the transition as smooth as possible. It will allow your loved ones to remember you, instead of the hassle of sorting through what you leave.

Interlock Devices for All

The American Energy and Infrastructure Jobs Act, bill H.R. 7, could have major implications for North Carolina. The bill was introduced on January 29 by House Republicans with the support of both parties. The bill, if passed, would provide up to $25 million in federal grants to states that agree to pass laws requiring the use of ignition interlock systems on cars driven by anyone convicted of a DWI. This includes first time offenders and does not have a blood alcohol level (BAC) requirement. Under this proposed law, a person convicted of a DWI with a .07, with no prior DWI could still be required to use an interlock.
This is a very small portion of the Jobs Act, but is one of the few portions garnering bipartisan support. Even if a less stringent interlock requirement is passed, it’s now clear that Congress is prepared to dangle large sums of money- even in a time when lawmakers are promising to cut spending- to states that will get even stricter on DWI enforcement.

North Carolina is already one of the toughest states on DWI and interlocks are already required here in some cases. If this bill becomes law, it will become even more crucial for individuals charged with DWI to hire a defense attorney who is familiar with DWI law and DMV procedures for driving privileges.

There are heavy hitters on both sides of this issue, which could lead to debate on what otherwise looks to be a guaranteed new law, since neither party opposes mandatory interlock devices. Mothers Against Drunk Driving, or MADD, is the strongest lobbying force in support of the requirement. The American Beverage Institute, which includes approximately 8,000 restaurants, has come out as a strong voice against the requirement. MADD states that requiring interlock devices, even for first time offenders and low BAC offenders, will reduce drunk driving deaths and save thousands of lives. The American Beverage Institute contends that mandatory interlock devices remove a judge’s ability to distinguish between a repeat offender who is a threat to other drivers and someone who is low risk. The group does support states using the interlock device for those who are repeat offenders or who have high BAC.

Michael Boldin of the Tenth Amendment Center, a civil rights group, was concerned about the federal government exercising this much power over an area that states are already taking responsibility for. 42 states already have provisions in their laws covering use of interlock devices, leading Boldin to think that the federal government does not need to intervene. Boldin told FoxNews.com that he is concerned about where these exercises of power could lead: “Every time we set that precedent that the federal government can mandate on the states certain rules or regulations, then the next time that something bigger comes up — perhaps a health care mandate — then there’s already the building blocks for this type of power that’s been allowed in the past.”

Depending on whose numbers you trust, this measure will either be cost-neutral, save states money, or cost upwards of $430 million. Considering the National Highway Traffic Safety Administration (NHTSA) data suggests that the average BAC for a drunk driving causing a fatality is over twice the legal limit at .19, requiring a device that needs monthly maintenance, plus monitoring by a parole-type officer, a logical person could conclude that the requirement will be a financial burden for most states.

What do you think? Let us know, and more importantly, let your elected representatives know!

Aging Behind Bars

Prison overcrowding has been an issue for years. Law enforcement knows it, lawmakers know it, and the general public knows it. Recently, though, the issue has taken on a different face.  Prison populations are aging, creating a new set of challenges for those who manage or work in correctional facilities.

Human Rights Watch, an international non-profit watchdog group, released a study showing that numbers of state and federal inmates aged 65 and older increased at 94 times the rate of younger inmates between 2007 and 2010.

Jamie Fellner, senior advisor for the U.S. Program with Human Rights Watch, authored the report.  Ms. Fellner voices the concern being felt by correctional officers nationwide, that “Prisons were never designed to be geriatric facilities… Yet US corrections officials now operate old age homes behind bars.”

The cost of care for an aging population is staggering. Officials in New York state estimate that the annual cost for supporting an inmate over 55 is $70,000. This estimate does not include any costs associated with making the facilities themselves more accessible, but only covers health and basic necessities costs.

Association of State Correctional Administrators president A.T. Wall said that among other issues faced, correctional facilities officers must consider retrofitting cells with grab bars, installing handicap accessible toilets, and creating wheelchair accessible doorways and hallways.

The problem for all prison facilities seems to have the same basis. Correctional facility management has traditionally been based on managing a large population as a large group, a system that is showing cracks as the population ages and subsets with specific needs emerge. There are inmates suffering from dementia, Alzheimer’s, mobility impairments, and other issues generally associated with aging. Meeting their needs while still maintaining the order necessary to run a correctional facility is proving a difficult task.

This issue has no simple solutions.  Some groups have proposed implementing a type of age parole board, where inmates could be examined to determine their current state, whether they would currently be a threat to society, and whether they would be able to function outside of an institution. Detractors claim that while this system might reduce the burden on prison budgets, it could undermine the correctional system and the inmates in question would still supported by tax dollars, but the support would come through social programs instead of the prison budget.

The prison budgets would be even more strained if other options are embraced, such as building geriatric care centers on prison grounds or remodeling or building new prisons to be more accessible.

Until prison sentences are imposed for shorter terms, or crimes committed by anyone over the age of 30 cease entirely, the elderly population in prisons will continue to grow. The costs associated with this growth will continue to rise, and the system will demand more alternatives for the continued incarceration of the elderly.

Law and Order and Mistakes

The justice system in the United States is considered to be a symbol of strength, accuracy and fairness. It is a place where people believe that it is better to let 100 guilty men go free than incarcerate 1 innocent man. That image has taken a hit in recent days, as two lawsuits against local governments returned multimillion dollar verdicts in favor of formerly incarcerated men.

Stephen Slevin had been driving a friend’s car through New Mexico when he was arrested for Driving While Intoxicated (DWI) in August of 2005. He was put in jail and thrown into solitary confinement for the entire two years. Slevin claims he never saw a judge or even a magistrate the entire time he was confined. Not seeing a judge may be the least of his problems, though, since lack of a dentist led him to remove a tooth himself, and not seeing a doctor for depression contributed largely to the diagnosis of Post Traumatic Stress Disorder (PTSD) that he received not long after his release.

Slevin was denied access to medical care, the hour per day that is usually granted to prisoners who are in solitary confinement, even denied the basic maintenance privilege of a shower. Fungus grew under Slevin’s skin, his toenails grew and curled around his feet, and still none of the Dona Ana County Jail staff responded to his requests for medical care.

Dona Ana County will not treat anyone like this for a long time- the jury awarded Slevin $22 million in damages for the inhumane treatment he suffered.

A former inmate in Chicago had an experience that is also sickening, but sickening to the conscience and not the body. After spending 16 years in prison on a murder conviction, Thaddeus Jimenez was released in 2009 when a witness came out to say he gave false testimony, and new evidence of another person confessing to a friend came forwards.

In what may be the largest award granted in a Wrongful Conviction case, Jimenez has been awarded $25 million by a federal jury.  Jimenez’ lawyer, Jon Loevy, points out that this verdict is about correcting the errors made by the criminal justice system, particularly by a police department that he feels framed his client. Loevy is not interested in criticizing the prosecutors, who he says “recognized there had been an injustice and they corrected it.”

In both situations, the justice system has failed citizens, all of whom are deserving of the protections granted under the Constitution and Bill of Rights. While there will be many who begin to complain about the unfairness of the system, the fact that people are this outraged- as evidenced by both jury awards being over $20 million- shows that the system works most of the time, and everyone should be focused on making the system work every time.

GPS, No Longer Working For the Government

This blog posted a few months back about a case headed to the U.S. Supreme Court, a case about police use of GPS devices to monitor a suspected drug dealer. The Supreme Court handed down its decision yesterday, and unanimously agreed that in order to track a vehicle using a GPS device there must be a valid warrant.

While the decision was unanimous, the opinions were not. There were three opinions entered on the record, ranging from narrow to broad views on GPS tracking and other devices. The narrow opinion, written by Justice Scalia and voted on by 5 Justices, stated that this decision is based on the facts as presented in the case. In this case, law enforcement received a valid warrant giving them 10 days to install the GPS device, and a limitation that the device must be installed in the District of Columbia. Law enforcement officials did not install the device until the 11^th day, and it was done in Maryland. Scalia’s opinion focused on the lack of validity of the warrant for how the device was used. Without a valid warrant, Scalia states, law enforcement officers trespassed onto the defendant’s property.

Justice Alito’s concurring opinion, supported by 4 votes, also raised issues for future consideration. Alito questioned how GPS and other devices could be used when already installed in a suspect’s car, and there is no physical trespass performed. For instance, many cars come equipped with an OnStar™ system, which allows emergency personnel to track a vehicle in case of accident or other emergency.

The broadest opinion, a concurring opinion written by Justice Sotomayor and voted on only by herself, raised questions of police interference with private citizens beyond simply concerns about devices on vehicles. Sotomayor voiced concern about the proliferation of technical devices in the life of the average person, and how technology could be used by law enforcement to track not only a vehicle but a person’s diet and sexual preferences.

What the Court did not address was how far their decision should go to restrain law enforcement. Law enforcement, as represented by the government in this case, argued that even without the warrant, using the GPS did not violate the defendant’s 4^th Amendment protections against unlawful search and seizure because they had probably cause and reasonable suspicion, making the search lawful. Lower courts did not address whether GPS monitoring could count as a lawful search, so the Supreme Court did not consider the issue. Likewise, the issue of how long monitoring, with a valid warrant to install the device, could continue.

For now, citizens can be satisfied knowing that police can not slide by on an expired warrant, no matter how much probable cause they have for a search. Once a monitoring device can be installed on a suspect’s vehicle, though, there is no precedent for how long it can be there or how else it can be used.

Law enforcement can not put a GPS on your vehicle without a valid warrant. Whether they can use your existing GPS to monitor your movement has yet to be decided.

 

For more detailed analysis of this decision by the Supreme Court, read their blog here.

Today’s Ask-a-Lawyer Question: How Harmful is Showing Porn to a High School Classmate?

Question: I am charged with showing porn to another student in my high school. I was charged under the North Carolina law against “Disseminating harmful material to minors,” but I do not see what was harmful about it.

Answer: You raise a very good point that the average “pornographic” material has not been shown to harm a teenager, not according to any legitimate study, however the law is a configuration of odd constructs. The way that the statute is written the State does not actually have to prove that the material was harmful! And it probably was not! “Harmful to minors” has a statutory definition that has nothing to do with whether the material is actual harmful to minors. See 14-190.13(1). Actual harm being caused is not an element of the offense and need not be established by the state. You should discuss these issues with an attorney and consider a defense that the Statute violates the 1st Amendment; that it is void for vagueness, and or over-breadth.

Of course the other real question is whether the “porn” in question fits within the statutory definition in the first place. Since the statutory definition requires application of how “the average adult person applying contemporary community standards” would view the material, I think the State would have to present studies or survey results to establish how “average adults” apply “contemporary community standards.” This assumes that the material depicts “sexually explicit nudity” (so the old National Geographics are acceptable) or sexual activity, as this is also part of the definition.

In order to be harmful to minors, the material has to have the following qualities: a. The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient (think lustful) interest of minors in sex… The material does not have to appeal to a prurient interest in sex on the part of minors. It only has to have a tendency to do so. All that is required is that the average person thinks so. Whether a psychologist concentrating in adolescent psychology would think so or not, doesn’t matter. Whether minors are in fact affected this way does not matter. All that matters is whether an average person thinks they are.

This is poorly constructed law… It is a bit like saying a football team won a game because they “outplayed” the other team regardless of the score.

A person charged with Disseminating Harmful Material is not being convicted for what he does. He is being convicted for what an average person’s opinion is as to a question of fact. Any inquiry as to whether the fact is true is irrelevant under the way that the statute is written. Under the way that the Statute is written we have to accept that the Average Person’s opinion is determinative. We are stuck with that. But is the Average Adult Person an expert on minors? It’s not like child psychology is a field without a lot of unanswered questions. Anyway, what minors? Most minors? Some minors? Minors in general? The 85% or so that might make up a standard deviation? Something else?

So, the statutory standard is: You are guilty if you show a picture that the average adult thinks has a certain effect on some minors, but we don’t know which minors, and it doesn’t matter if the picture has that effect or not. Unfortunately the courts tend to uphold that standard, but it is incomprehensible how they can do so with integrity.

Yet another fight would be that this statute violates the Establishment Clause of the US Constitution, as our legislature has codified a requirement that minors will only see what “contemporary community standards” allow; especially in a religious state such as North Carolina, where churches control much of the community. This is arguably codifying church dogma for minors and must be seen as a Constitutional violation. Whether the Courts would recognize the “establishment clause” argument is not a guarantee, but it is an intellectually honest argument to make.

Of course, there is always a 1st Amendment, free speech, argument that can be cut from many earlier cases dealing with pornography.

Similar statutes in other States have been struck down as being in violation of the commerce clause, but this is an even more complex argument.

There are options for fighting this charge, but it is crucial that you consult with a defense attorney as soon as possible to start on your defense.