Nicola Lacey and Hanna Pickard, The Chimera of Proportionality: Institutionalizing Limits on Punishment in Contemporary Social and Political Systems, 78 Mod. L. Rev. 216 (2015), available at SSRN. SpearIt Like the Chimera of Greek mythology, American penal thought has its own powerful and elusive forces. In the world of punishment, proportionality occupies a similar space in the American imagination. The fancy of proportionality is to balance the severity of punishment with the severity of crime. On its own, the task is herculean, yet in practice, success becomes absolutely elusive due to consequentialist considerations that continue to shape law and policy. In this article, Lacey and Pickard show why proportionality cannot deliver on its promise of equalizing punishment. In the ‘neo-classical’ articulation, punishment has come to be understood as a morally appropriate equivalent to an offense, which in theory is constrained by the…
Rethinking Proportionality in Punishment
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Backdoor Prosecution of Tamir Rice’s Killers
Tamir Rice was executed on November 22, 2014. The 12-year-old was mowed down by bullets fired by Cleveland cop Timothy Loehmann in an encounter lasting less than two seconds. Yet, it remains in stasis, awaiting the promise of Cleveland officials to make a decision about whether to prosecute Loehmann, Rice’s killer, and his partner, Frank Garmback. It’s too long. Much too long. Absurdly too long. Tired of waiting, and distrustful of the eventual outcome regardless, “community leaders,” whoever that may be, have decided to invoke an archaic procedural backdoor to initiate prosecution. Section 2935.09 of the Ohio Revised Statutes provides: (B) In . . . order to cause the arrest or prosecution of a person charged with committing an offense in this state, a peace officer or a private citizen having knowledge of the facts shall comply with this section. *** (D) A private citizen having knowledge of the facts who seeks to cause…
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Defenses for Sexual Assault Charges in Texas
Texas is tough on sexual assault crimes. The legal punishments for a rape conviction can be severe. The police will collect as much evidence as possible when rape accusations are made. The prosecution will attempt to use this evidence to convince the jury that the defendant is guilty. However, it is possible to defend against rape charges in Texas. The defense can use several strategies to convince the jury that the defendant did not commit a sexual assault. Types of Defenses Section 22.011 of the Texas Penal Code defines sexual assault as the penetration of a person’s sexual organs, mouth or anus without that person’s consent. Based on this legal definition, defense against sexual assault charges often take three forms: No sexual penetration took place Consent was given Mistaken identity No Crime Occurred The first type of defense often depends on the type of evidence that is recovered by the police in the case. For example, if the medical examination of the…
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The Investment Management Company, the Former Employee and Unauthorized Access
This post examines an opinion recently issued by a U.S.District Court Judge who sits in the U.S. District Court for the Eastern District of Missouri: U.S. v. Shen, 2015 WL 3417471 (2015). The District Court Judge begins his opinion by explaining that [p]ursuant to 28 U.S. Code § 636(b), the Court referred all pretrial matters in this case to United States Magistrate Judge Nannette A. Baker for determination and recommended disposition, where appropriate. On April 21, 2015, Judge Baker issued a Report and Recommendation with respect to the motion filed by defendant David Shen to dismiss Count I of the indictment. Thereafter, the defendant filed timely objections to the recommendation that his motion be denied.U.S. v. Shen, supra. As Wikipedia explains, “[i]n In the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties. Magistrate judges…
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Fault Lines: This Past Week
Time for another wrap up of the past week at Fault Lines, with some damn fine stuff. This week, we’ve added a new writer, Ken Womble, who is a criminal defense lawyer in Brooklyn, having paid his dues in the trenches as public defender. And if that’s not enough to get you cranking, we have my old buddy Ron Kuby and Allan Brenner guest-posting as well. Damn fine stuff. CONCEALING FREDDIE GRAY’S AUTOPSY SERVES NO ONE CREATIVE JUSTICE: WHEN SENTENCES FOCUS ON SHAME MCKINNEY COP PLACED ON LEAVE AFTER CHOKESLAMMING 15 YEAR OLD GIRL LEAVE THE GUN, TAKE THE VIBRATOR SCOTUS’ MESSAGE IN MELLOULI: NO ONE SHOULD BE DEPORTED BECAUSE THEY WEAR SOCKS PEOPLE TO NYPD COMMISSIONER BRATTON: #NOROBOCOPS THE CRIME OF PUNISHMENT Read them all. No, I mean it. Read them all. Do it for the children. Copyright © 2015 Simple Justice NY, LLC This feed is for personal, non-commercial and Newstex use only. The use of this feed anywhere else violates copyright. If…
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Should bail reform be a key component of sentencing reform efforts?
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"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"
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Seeking questions from readers to ask during "Ohio Marijuana Policy Reform Symposium"
As regular readers know, the exciting Ohio Marijuana Policy Reform Symposium (details and registration here) is taking place tomorrow June 11, 2015, at the The Ohio State University Moritz College of Law. Though I hope everyone interested in marijuana reform in the Buckeye State is making plans to attend the...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/L_wZtKYfbpE" height="1" width="1" alt=""/>
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State v. Anaya, New Mexico Supreme Court (Unpublished)
Anaya is a case dealing with a first-degree murder. The Supreme Court affirms the defendant's convictions. The case deals with five issues: (1) a trial court denying a defendant's excusal of the judge, (2) ineffective assistance of counsel, (3) insufficient evidence to support a conviction; (4) denial of a self-defense instruction; and (5) cumulative error.Holding Regarding An Appellate Court's Review of Only Facts On The RecordOn appeal, an appellate court will only consider facts that are offered through the record. Rule 12-213(A)(3) NMRA.Holding Regarding the Standard of Review To Apply In Analyzing A Trial Judge's Ruling of a Preemptory Excusal"A trial judge's ruling on a party's preemptory election to excuse presents a mixed question of law and fact. [An appellate court] reviews the judge's findings of historical fact using the deferential substantial evidence standard, while we review the application of the…
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Coeur d'Alene Man Sentenced for Meth Distribution
COEUR D'ALENE - Sean Ryan Hanich, 30, of Coeur d’Alene, Idaho, was sentenced yesterday to 77 months in prison followed by five years of supervised release for his involvement in a conspiracy to distribute methamphetamine, U.S. Attorney Wendy J. Olson announced. Chief U.S. District Judge B. Lynn Winmill also ordered forfeiture in the amount of $20,000. Hanich pleaded guilty to the charge on October 22, 2014.According to court documents, Hanich admitted that on eight occasions, between December 2013, and March 2014, he distributed methamphetamine to an informant. In total, Hanich delivered approximately one half-pound of methamphetamine. Hanich has been in federal custody since his arrest in July 2014.The case was investigated by Drug Enforcement Administration (DEA) and Idaho State Police (ISP), with the assistance of the North Idaho Violent Crimes Task Force.
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Large Cash Bank Transactions Attract Government Attention
Former Speaker of the House Dennis Hastert has been making headlines as of late, and not for earmarks or his coined "majority of the majority" rule. Late last month, it was revealed that Hastert was indicted by a federal grand jury and charged with a banking withdrawal scheme known as "structuring," which we will explain herein. As our West Palm Beach and Fort Lauderdale criminal defense lawyers know, the federal government regulates the national banking system, and one of the regulations comes in the form of the Bank Secrecy Act, enacted way back in 1970. In an attempt to combat financial crimes such as money laundering, the Bank Secrecy Act requires financial institutions to report to a branch of the federal government cash transactions above a certain dollar amount. As we will explore, this has serious implications for Americans.
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Penalties For Sexual Battery (O.R.C. 2907.03) In The Cleveland, Ohio Area
Criminal Defense Lawyer Help Those Facing Sexual Battery (O.R.C. 2907.03) Charges Prosecutors in Cleveland take sex crimes extremely seriously, and a charge of Sexual Battery (O.R.C. 2907.03) puts you at extremely high risk of serving prison time if convicted. Read More
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BGer 5A_657/2014: Inhalt und Umfang einer Dienstbarkeit
Das Bundesgericht hatte im vorliegenden Fall neben anderem insbesondere den Inhalt und den Umfang einer Dienstbarkeit zu prüfen. Für die Ermittlung des Inhalts und des Umfangs einer Dienstbarkeit gibt Art. 738 ZGB eine Stufenordnung vor. Auszugehen ist dabei vom Grundbucheintrag; ergeben sich Rechte und Pflichten aus dem Eintrag unmissverständlich, so ist dieser für den Inhalt der Dienstbarkeit massgebend (Art. 738 Abs. 1 ZGB). Ist der Wortlaut hingegen unklar, darf auf den Begründungsakt (Beleg) zurückgegriffen werden. Wenn auch der Erwerbsgrund nicht schlüssig ist, kann sich der Inhalt der Dienstbarkeit aus der Art ergeben, wie sie während längerer Zeit unangefochten und in gutem Glauben ausgeübt worden ist (Art. 738 Abs. 2 ZGB). Zu berücksichtigen ist weiter, ob in Bezug auf den Vertragsschluss der auszulegenden Dienstbarkeit Parteiidentität herrscht. Sind es aber – wie im vorliegenden Fall –…
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Can a Custodial Parent Move Out of State?
In divorces involving children, either the parents or the court must determine a custody plan. In cases where custody is not divided evenly in a joint custody arrangement, there is a “custodial parent” who takes on sole custody, and a “non-custodial parent” who does not have custody. Even though the custodial parent takes primary responsibility for providing support and making decisions, the non-custodial parent still has a right to visit with their child, which Utah calls “visitation” or “parent time.” But what happens if you’re the non-custodial parent, and your ex-husband or ex-wife decides to move out of state with your kids? Do you have any legal means of stopping them, or limiting where they can live with your children? Divorce attorney Andrew Stewart explains your legal rights as a non-custodial parent in Utah. How Much Visitation Time Do Non-Custodial Parents Get in Utah? There are two…
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Judge Clears Barriers to Medical Marijuana in Florida
A judge in Tallahassee recently cleared the final challenge to a rule allowing the cultivation of a non-euphoric strain of marijuana used for medical purposes in Florida, in accordance with legislation passed last year. The Florida Department of Health expects to start taking applications to be a grower within the next few weeks. The ruling means that the Department of Health can begin to implement legislation passed by the state legislature in 2014, the Compassionate Medical Cannabis Act. Cultivation and Possession Offenses Generally, it is a criminal offense to cultivate marijuana or other controlled substances. The manufacturing or growing of cannabis for any purpose is a third-degree felony in Florida, punishable by fines and up to five years in prison. It is also illegal to possess cannabis. Depending on the amount found in an offender’s possession, the offense may be a first degree misdemeanor or a third-degree felony. Conviction for possession results in a…
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Follow the Money to Find the Fraud
Forensic accounting has been around for decades, but only in the last ten to fifteen years have people become aware of the profession on a wide scale. Many of the techniques used by forensic accountants to investigate fraud and analyze the numbers are the same today as they were decades ago. Computers have made things easier, as we can track, sort, and manipulate data faster. While software solutions for analyzing data, managing documents, and following the money are being used in investigations, they’re not being used to their full potential. This is obviously a missed opportunity for clients. Old Fashioned Investigations The old way of investigating fraud – the one that requires manual data analysis – is tried and true. Examining source documents is critical to finding out what really happened with the money. There is no substitute for the judgment, skepticism, and investigative intuition of a seasoned forensic accountant. There are two major problems,…
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The Price of Free Speech is $200,000
Free speech is a privilege we enjoy in the United States. But it is anything but free. My personal price for the right to express my opinion about Medifast, Inc. was 5 years of my life and nearly $200,000. (Of course, that doesn’t include the emotional toll that the case took, as Medifast’s malicious pursuit of its meritless case against me was clearly designed to ruin me professionally.) Case Summary To summarize Medifast’s bogus case against the defendants: In May 2009, Barry Minkow and his Fraud Discovery Institute released a report about Medifast Inc. and its multi-level marketing arm called Take Shape For Life (TSFL) In September 2009, I wrote an article on this blog about Medifast and TSFL, exposing the fraud behind multi-level marketing (MLM) In February 2010, Medifast sued Barry Minkow, Robert Fitzpatrick, me, and others with claims of defamation, violations of California Corporations Code and Unfair Business Practices. Approximately two months…
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Charles Samuels, head of Federal Bureau of Prisons, announces plans to retire
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The Next “Crime” Down The Title IX Rabbit Hole
Have neo-feminists won the battle of rape on campus? Enough so, apparently, that they’re ready to move on to the next offense to gender to be “fixed” in the college star chamber. Spokesgal for the future victims, Amanda Marcotte, gives the talking points: Katie Baker at BuzzFeed has a new piece out about one of the less attention-getting aspects of Title IX: that it’s supposed to protect students against domestic violence as well as sexual assault. “The next wave of Title IX activism, researchers and activists say, will focus on how colleges investigate allegations of and provide resources to students in abusive relationships,” Baker writes. “And it’s going to be just as complicated and contentious.” It seems like only yesterday when neo-feminists was railing about how one in five women will be raped in college, demanding that we believe accusers who almost never lie. Good times.…
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Medicare Fraud and Abuse
Medicare Fraud and Abuse New Orleans Attorney Medicare fraud is typically characterized by: Knowingly submitting false statements or making misrepresentations of fact to obtain a federal health care payment for which no entitlement would otherwise exist; Billing for services not rendered or supplies not furnished,including falsifying records. Knowingly billing for services at a level of complexity higher than the service actually provided. Knowingly soliciting, paying, and/or accepting remuneration to induce or reward referrals for items or services reimbursed by Federal health care programs; or Making prohibited referrals for certain designated health services. One does not have to hold a professional license to be convicted of Medicare fraud — anyone can be found guilty. Defendants can range from those involved in solo ventures to broad-based operations by an institution or group. Penalties A Medicare Fraud conviction exposes individuals to potential…
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