Massachusetts Criminal Defense Blog

The Attorney General, Sentencing Reform, and What Went Wrong with Edward Alemany

Sunday at the American Bar Association’s annual meeting in San Francisco, Attorney General Eric Holder announced his plans to reform Justice Department sentencing policies in an effort to stem the epidemic of mass incarceration. Among his proposals were avoiding minimum mandatory prison sentences for nonviolent drug offenders without gang or cartel affiliations, considering release of individuals who are not a danger to the public, and increasing drug treatment and diversion programs as alternatives to incarceration.

I first heard the Attorney General speak of his intentions last year at a JFK Library forum, when a member of the audience asked him what he hoped his legacy would be as Attorney General. He answered easily and with certainty: “prison reform.” This caught my attention. As a prosecutor in Miami, I saw firsthand the effects of the “War on Drugs”:  defendants with pages upon pages of priors completely devoid of violent crimes; directives from my chiefs to offer credit time served (usually the one night spent in jail before appearing before the judge) for a defendant’s first few drug possession offenses before increasing jail time in increments for subsequent arrests (so they knew We Were Serious); and courtroom dockets so overwhelmed with nonviolent drug cases that a substitute judge would periodically preside in our courtroom to offer one-day-only lowball pleas in a “plea blitz”, which shielded the regular judge from possible  accusations of vindictive sentencing if a defendant was “launched” following a conviction at trial.

I also saw defendants request to serve straight jail time instead of probation pleas with conditions to attend Narcotics Anonymous, undergo drug testing, or complete community service. The threat of a probation violation was too great in the face of conditions they knew would be difficult for them to complete.

And yet, the public has overwhelmingly embraced the idea that being “tough on crime” is synonymous with incarceration, which is why I found the Attorney General’s announcement Sunday incredibly bold and refreshing. Alternative sentencing and drug courts remain among the first programs sacrificed to budget cuts, and the topic stays out of the political conversation – in the most recent election cycle, neither President Obama nor Mitt Romney addressed the War on Drugs in their campaigns. Only the third party debate discussed the need for reform.

Meanwhile, last month in South Boston, Edward Alemany, alleged to have murdered South Boston resident Amy Lord as she left her home in broad daylight, was revealed to have been a suspect in an attack on another young woman last September. Everyone is asking how he could have remained in the community even then given his lengthy (and at times violent) priors, and why the assigned detective failed to return calls to the crime lab regarding evidence in the September attack. Taken in isolation, it certainly sounds like the detective was the problem. But the bigger question is, why did he abandon the investigation? Could it be that most such investigations lead to a dead end, and work on cases that don’t get solved is not valued by the police department? When the police get more recognition for making a sweep of drug arrests instead of hunting down evidence in investigation of violent crimes, and the glut of those drug arrests prevent prosecutors from properly evaluating cases, human error can be just a contributing factor in a broken system.

The Attorney General said that “we cannot simply prosecute or incarcerate our way to becoming a safer nation.” Minimum mandatory sentences and similar laws proclaimed as “tough on crime” may be exceedingly harsh for an individual offense, but do nothing to deter crime on a wider level and obscure the true threats to the community.

The Attorney General’s proposals are needed measures to allocate resources away from incarceration based on fear, allowing for more focus on known violent offenders – the ones who leave their driver’s license behind at the scenes of their crimes.

U.S. v. Jones: Back to the Future of Your Privacy Rights

Last week, the United States Supreme Court announced its decision in U.S. v. Jones (Docket 10-1259), holding that “…the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” The Court did not find warrantless GPS tracking unconstitutional. Media misunderstanding and attempts to create headlines have resulted in incorrect characterizations of the decision.

It had been anticipated that the Court would articulate constitutional limits to Government use of GPS surveillance in general. While the majority declined to do so, Justice Sotomayor and Justice Alito each authored concurring opinions revealing how the Court might apply the Fourth Amendment to the increasing possibility of Government surveillance without physical intrusion.

Facts of the Case

Government agents attached a GPS device to the Respondent Jones’s vehicle, which they used to track his locations for 28 days, collecting 2,000 pages of data. The Government used that information to indict and convict him of drug trafficking conspiracy, resulting in a sentence to life imprisonment. At trial, the District Court denied the Respondent’s motion to suppress as to all data obtained when the vehicle was not located at his residence, citing well-settled law that there is no privacy interest in one’s movement on public roads. On appeal, the Circuit Court reversed the Respondent’s conviction, finding that the admission of the evidence violated the Fourth Amendment. The Supreme Court granted certiorari.

Sticking to the Facts (Justice Scalia’s Majority Opinion)

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Justice Scalia was joined by Chief Justice Roberts as well as Justices Kennedy, Thomas, and Sotomayor, reasoning that “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” The Court rejected the Government’s argument that there was no search due to a lack of privacy interests in the exterior of one’s vehicle or movement on public roads; instead focusing on the Government’s intrusion on the Respondent’s vehicle, an “effect” protected by the Fourth Amendment.

The concurrences criticize the majority’s rationale, claiming that reliance on the Government’s physical intrusion reverts to the historical conception of Fourth Amendment protections at the expense of current understanding. Until the latter half of the twentieth century, a violation was considered to require the Government to physically intrude upon private property. For instance, in Olmstead v. United States, 277 U.S. 438 (1928), the Court found no violation where the Government employed a telephone tap from a public telephone pole.

Coinciding with technological advances that allowed for surveillance without trespass, the Court announced in Katz v. United States, 389 U.S. 347, 351 (1967) that “the Fourth Amendment protects people, not places”. There, the Court found a violation where the Government employed an eavesdropping device in a public telephone booth. In his concurring opinion, Justice Harlan proposed that a violation lies where the Government intrudes on a person’s “reasonable expectations of privacy.” Id. at 360. This came to be known as the “Katz test”.

The majority in Jones articulated that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test”, noting that the Government’s intrusion upon private property in order to gather information would have been considered a violation at the time of the enactment of the Constitution, and the Katz standard did not eliminate existing rights.

The Court emphasized that its holding depended upon the fact that the Government intruded upon the Respondent’s property to attach the GPS device while it was in the Respondent’s possession, distinguishing cases where a tracking device was attached to an article of property prior to its coming into respondents’ possession and the Court had found no violation. This leaves open the possibility that Government attachment and use of a tracking device at the time of your car’s manufacture might not constitute a search.

The Court was not called to determine whether the search in this case required a warrant, as the Government failed to raise the argument that if the Government action was considered a search, it was reasonable. The Court deemed the argument waived.

“Constitutional Minimum” (Justice Sotomayor’s Concurrence)

Although she joined in the majority opinion, Justice Sotomayor found its reliance on physical intrusion to property a “constitutional minimum”. She expressed concern for the extreme efficiency by which GPS monitoring would allow the Government to track intimate details of individuals’ lives, and suggested that her future decisions regarding the limits of Government technological surveillance would be focused on the potential for abuse and for chilling freedom of expression.

Most significantly, she suggested that due to growing dependence on digital technology, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” This would mark a drastic departure from existing precedent; however, in an age in which technology pervades human activity and communication so completely, preserving any degree of privacy may require such action.

Let’s Get to the Point (Justice Alito’s Concurrence)

Joined by Justices Ginsburg, Breyer, and Kagan, Justice Alito proclaimed the majority’s dependence on physical intrusion “highly artificial” in consideration of available technology. He criticized the majority’s failure to address Government use of GPS surveillance, the possibility of manufacturer-installed Government surveillance devices, Government intrusion by electronic rather than physical means, and an assumption that the “reasonable expectation of privacy” is unchanging.

Due to the potential of technology to erode individual expectations of privacy, Justice Alito suggested that legislation may be enacted to define the parameters of Government surveillance. Such legislation would seem to be circuitous itself, in that the judicial branch of Government is charged with determining constitutionality of laws, and a law that allowed for violation of the Fourth Amendment would find redress in the courts.

Justice Alito proposed a distinction between short- and long-term surveillance, with the latter more likely to be considered a “search”. While there is no current authority for such a distinction, he argued that it would preserve traditional expectations of privacy, as long-term surveillance would have required vast Government resources. He noted that the distinction may not be as relevant for extremely serious crimes, where the Government would have been expected to go to great lengths to surveil suspects.

What Does it All Mean?

Jones is not only a groundbreaking application of Fourth Amendment protections to technological surveillance, it provides an example of the mechanics of legal discourse. To ensure justice and consistency rather than outcome-oriented decisions, judges look for prior law to apply when faced with new situations. The Court characterized its Jones rationale as a unification of the trespassory line of Fourth Amendment jurisprudence with the Katz test. While Justice Sotomayor acknowledged that the existence of a physical intrusion in this case allowed the Court to leave larger issues regarding Government technological surveillance for another day, she proposed major shifts in jurisprudence that the other Justices may contemplate before faced with decisions in future cases. Justice Alito, while agreeing with the majority’s result, expressed readiness to answer Fourth Amendment questions raised by the digital era. The near even split of the Justices signals that determination of these issues, and potentially drastic changes to conceptions of Fourth Amendment protections, is imminent.

After the OUI Arrest: An Uphill Battle for the Prosecution

OUI charges are very difficult for the government to prove. Due to political pressure, the District Attorney’s office will almost always go forward with prosecution even in cases where a successful motion to dismiss or an acquittal at trial is likely. When I first meet with an OUI client, my immediate priority is to establish a timeline of events in order to determine the weaknesses in the government’s case. There will be weaknesses in the government’s evidence; the question is how helpful those weaknesses are to your defense.

These are just a few of the ways that OUI charges present challenges for the prosecution:

  • Higher probability of police mistakes. Police interaction with OUI suspects is quick, unplanned, and easily forgotten by the officers. Often police stop and search vehicles without proper legal justification, which can provide a basis for a successful motion to suppress evidence or to dismiss the case entirely. The police paperwork often contains mistakes as well, which can be fatal to an OUI case, where details are so important.
  • The symptoms of impairment may be symptoms of something else. Fatigue, a medical condition, and nervousness are just a few reasons that someone might have bloodshot eyes, be unsteady on their feet, and perform less than perfectly on “field sobriety tests”. Often, the officers’ reasons for concluding that a suspect was intoxicated do not transfer well to courtroom testimony.
  • The defendant may be a more credible witness than the police. Many OUI defendants are law-abiding citizens who have never been in trouble with the law. Jurors may relate to the defendant and recognize that confronted with the threat of arrest, they might also be too nervous to perform field sobriety tests perfectly.

Many people arrested for OUI are not drunk drivers, but merely citizens pulled over by the police and arrested on the basis of their performance on outlandish coordination tests. An experienced OUI defense attorney can advise you as to weaknesses in the government’s evidence that may not be obvious, and recommend a strategy to maximize your chance of beating the charges.