Category Archives: Law: Criminal Law

Eric Holder’s Finest Hour

Goodbye to most civil forfeiture. I have never been much of a fan of Holder’s — indeed I thought he was one of the most destructive members of the Cabinet in large part for his failure to prosecute torturers, but also for a bunch of other things, starting with the issue of holdover US Attorneys.

But this move is just plain good.

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.

Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund.

A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

And if this is what he’s like once Holder is on the way out, does it not suggest we should have gotten him out a long time ago?

Posted in Law: Criminal Law | 6 Comments

Justice Stevens to Speak at U Miami L Rev Syposium

Criminalized Justice: Consequences of Punitive Policy” will be held Feb 6-7 in the Student Activities Center: 1330 Miller Drive, University of Miami, Coral Gables.

The Symposium, entitled “Criminalized Justice: Consequences of Punitive Policy,” will take a critical look at how our nation’s laws have been increasingly criminalized over the past 30 years, the negative consequences of this criminalization, and recent positive developments. We will explore this topic through a variety of subjects, including sentencing policy, immigration, homelessness, and race and social class.

Keynote Speakers

The Honorable John Paul Stevens, Justice of the Supreme Court of the United States (Ret.)
Introduced by Donna Shalala, President, University of Miami

Katherine Fernandez Rundle, Miami-Dade State Attorney


 Panel I: The Criminalization of Race and Poverty

This panel will examine how and why an individual is more likely to be targeted by police because of their race, social class, or where they live.  We will discuss the cycle of crime and incarceration that this creates as well as possible solutions to this problem.

Moderator: Charlton Copeland, Professor of Law, University of Miami School of Law

Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School
Jonathan Simon, Adrian A. Kragen Professor of Law, University of California, Berkeley School of Law
Tristia Bauman, National Law Center on Homelessness and Poverty

 Panel II: Sentencing Policy and Mass Incarceration

This panel will focus on the impact that the same trend of criminalization has had on incarceration. We hope to discuss the radicalization of punishment and the problems that has created in our country’s prison systems as well as the recent movement away from heavy sentencing.

Moderator: Rebekah J. Poston, Partner, Squire Patton Boggs

Franklin Zimring, William G. Simon Professor of Law, University of California, Berkeley School of Law
Douglas Berman, Robert J. Watkins/Proctor & Gamble Professor of Law, The Ohio State University Moritz College of Law
Nicole Porter, The Sentencing Project

Panel III: The Criminalization of Immigration Law

Since the Supreme Court’s landmark opinion in INS v. Lopez-Mendoza in 1984 categorizing immigration proceedings as civil in nature, the immigration laws and the ways in which they are enforced have become increasingly criminal. This panel will examine the issues that this criminalization has created and what procedural and substantive protections should be in place as a result.

Moderator: David Abraham, Professor of Law, University of Miami School of Law

 Daniel Kanstroom,  Professor of Law, Boston College Law School
Paromita Shah, National Immigration Project of the National Lawyers Guild
Allegra McLeod, Associate Professor of Law, Georgetown Law

Panel IV: Roundtable Discussion

 Moderator: Mary Anne Franks, Associate Professor of Law, University of Miami School of Law

Posted in Law: Criminal Law, U.Miami | Leave a comment

It’s Where The Money Is


Plus, there’s no significant risk of jail.

Posted in Econ & Money, Law: Criminal Law | Leave a comment

Ferguson’s Backstory

Amazing Whitepaper by ArchCity Defenders, a legal aid organization representing indigent defendants in the St. Louis metropolitan area, on how Ferguson police/prosecutors/judiciary are in league to milk poor defendants of large fines on the basis of petty offenses.

Among the shocking bits — yes it’s still possible to be shocked — are

  • Plea bargains offered to defendants rich enough to hire lawyers, but not to pro se defendants
  • the systematic closing of courtrooms to the public,
  • prohibiting defendants from bringing their children to court (and in at least one case charging the defendant for child neglect for leaving the child outside)
  • starting trials 30 minutes before time on summons and locking doors to court five minutes after the official hour, “a practice that could easily lead a defendant arriving even slightly late to receive an additional charge for failure to appear.”

There’s actually a lot more – well worth a read. Note in particular that Ferguson was one of only three municipalities in the greater St. Louis metro area singled out by Arch City Defenders for a particularly abusive practices; this is not business as usual but nor is it an isolated phenomenon.

(Spotted via Daily Kos).

Posted in Civil Liberties, Law: Criminal Law | 5 Comments

Today’s Simile

The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog.

That’s Corey Yung, writing in What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?, in an interesting discussion of procedural issues in a recent 8th Circuit opinion in method-of-legal-execution case. That dissent is pretty convincing on some other issues too, by the way.

(I post this in fear that someone will come along and say it’s really some kind of metaphor.)

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Facing White Privilege

In I Got Myself Arrested So I Could Look Inside the Justice System Bobby Constantino, a former prosecutor, discovers a number of things: it’s tough to get arrested for a misdemeanor while white; cops routinely mistreat prisoners in urban jails; probation officers couldn’t really care less.

If any of these sound like they might be news to you, you should read his well-written article in the Atlantic.

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Bad Ideas Are Hard to Kill

Shocking story in the Guardian: California was sterilizing its female prisoners as late as 2010 — without, it appears, required authorizations from state officials. (Even the idea that there’s a procedure is troubling given the history of bad eugenics-based thinking in the US.)

Posted in Law: Criminal Law | 1 Comment