Federal Courts

Obama's Supreme Court nominee Elena Kagan once served as deputy director of President Clinton's Domestic Policy Council, where she served on a working group that argued for delaying critically important sentencing reforms:

The memos…show that Kagan served on a government working group that decided to dial back the Clinton administration’s efforts to decrease the disparity in sentencing between crimes involving crack and those involving powdered cocaine. A draft report from the group painted the decision as a grudging but realistic one based on a stalemate in Congress over the issue. "Our more nuanced message will not sell as well as the 'tough on crime' opposition message in an age of sound bites," the report read. [Politico]

What an ugly quote and a rare glimpse inside the twisted thought processes that have allowed our worst mistakes to endure for so many shameful years. It's just sickening to think that some of the drug war's most racist policies might have been fixed more than a decade ago if spineless advisors like Kagan hadn't put politics ahead of equal justice.

In purely political terms, they might have been right – sentencing reform took several more years to gain sufficient momentum – but do we want this sort of callous and calculating partisan operative deciding who is and is not protected under the U.S. Constitution?

Update: I edited the post to make it clear that Kagan was part of a group which made this recommendation, and wasn't solely responsible for it herself. A wise colleague pointed out to me that it's possible she didn't even agree with the position of the group. In the context of the Politico story, it's clear she made a lot of politically motivated decisions at that time, but I could be off-base in blaming her personally for recommending this position on the sentencing disparity.

As the Chronicle story below reports, New York City is about to pay yet again for unlawfully strip-searching minor offenders, including people busted for public pot possession. If this includes you, it just might behoove you to contact the law firm handling the lawsuit in question, Emery, Celli, Brinckerhoff, and Abady. Here's the story: Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches For the third time in the past ten years, New York City has been forced to pay big bucks for subjecting non-violent prisoners—including minor marijuana offenders—to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to settle the most recent lawsuit stemming from the illegal strip searches. The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007. In 2001, under the Giulani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002. The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007. Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice." It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts. Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets—which you are not required to do—and then charging them with public possession of marijuana, a misdemeanor. David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search. "I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated." "I don’t know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge." And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.

As the Chronicle story below reports, New York City is about to pay yet again for unlawfully strip-searching minor offenders, including people busted for public pot possession. If this includes you, it just might behoove you to contact the law firm handling the lawsuit in question, Emery, Celli, Brinckerhoff, and Abady. Here's the story: Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches For the third time in the past ten years, New York City has been forced to pay big bucks for subjecting non-violent prisoners—including minor marijuana offenders—to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to settle the most recent lawsuit stemming from the illegal strip searches. The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007. In 2001, under the Giulani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002. The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007. Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice." It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts. Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets—which you are not required to do—and then charging them with public possession of marijuana, a misdemeanor. David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search. "I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated." "I don’t know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge." And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.

The Ohio Supreme Court ruled Tuesday that police officers must obtain a search warrant before reviewing the contents of a suspect’s cell phone unless their safety is in danger. The ruling came on a narrow 5-4 vote of the justices. The ruling came in State v. Smith, in which Antwaun Smith was arrested on drug charges after answering a cell phone call from a crack cocaine user acting as a police informant. When Smith was arrested, officers took his cell phone and searched it without his consent or a search warrant. Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools. At trial, Smith argued that evidence derived through the cell phone search should be thrown out because the search violated the Fourth Amendment ban on unreasonable searches and seizures. But the trial judge, citing a 2007 federal court ruling that found a cell phone is similar to a closed container found on a defendant and thus subject to warrantless search, admitted the evidence. Smith was subsequently convicted on all charges and sentenced to 12 years in prison. Smith appealed, but lost on a 2-1 vote in the appeals court. In that decision, the dissenting judge cited a different federal court case that found that a cell phone is not a container. In the majority opinion Tuesday, state Supreme Court Justice Judith Ann Lanzinger wrote that the court did not agree with the appeals court and trial judge that a cell phone was a closed container. "We do not agree with this comparison, which ignores the unique nature of cell phones," Lanzinger wrote. "Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. ... Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container." "People keep their e-mail, text messages, personal and work schedules, pictures, and so much more on their cell phones," Craig Jaquith, Smith's attorney, said in a statement. "I can't imagine that any cell phone user in Ohio would want the police to have access to that sort of personal information without a warrant. Today, the Ohio Supreme Court properly brought the Fourth Amendment into the 21st century." But Greene County prosecutor Stephen Haller complained to the Associated Press that the high court had gone too far. "I'm disappointed with this razor-thin decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."