According to a report in Capital New York, New York settled a lawsuit brought by the New York Civil Liberties Union to improve the legal representation that defendants too poor to afford their own lawyers receive in Ontario, Onondaga, Schuyler, Suffolk and Washington counties. The settlement establishes caseload limits for public defenders and a monitoring compliance agreement.
Matt Apuzzo, writing in the New York Times, reports that one of retiring Attorney General Eric Holder's legacies is shifting terrorism cases from military tribunals to the civilian courts: "Five years ago, the debate over whether terrorists should be prosecuted in criminal courts was so contentious that it made its chief advocate, Attorney General Eric H. Holder Jr., a political liability. Republicans argued that F.B.I. interrogation was not suited to wartime intelligence-gathering. By extension, civilian courtrooms were no place for terrorists, who did not deserve the same rights as common criminals." In contrast, Guantanamo Bay tribunals have had problems, including two convictions overturned on appeal.
Companies are going to face fines next year if they don't comply with a mandate to provide health insurance to employees. In order to avoid $2,000 penalties per employee, some companies are trying to enroll low-wage employees in Medicaid or to offer "skinny" plans that cover preventive care but exclude major benefits like hospital coverage, the Wall Street Journal reports. Employers, however, can face a different $3,000 fine for workers who opt out of the "skinny plans" and get federally subsidized plans through an insurance exchange. Other employers are reducing the number of workers who are eligible by keeping their hours below 30 a week.
Jeff John Roberts, writing in GigaOM, writes about how we don't have rules yet to govern the Internet connections that have been brought to physical devices--the so-called "internet of things": "The first murder through the internet of things will likely take place in 2014, police service Europol warned this month. The crime could be carried out by a pacemaker, an insulin dosage device, a hacked brake pedal or myriad others objects that control life-and-death functions and are now connected to the internet." He notes that there are completely open questions on whether manufacturers of Internet-connected devices are going to face liability for privacy breaches: "In the future, judges may start asking if the concept of 'privacy by design' should become a safety standard, and even require internet companies to adopt the same pre-cautions as auto makers or playground designers."
Al Tompkins, writing in Poynter, discusses the struggle between reporting on the Ebola epidemic and respecting HIPAA, the law protecting patients' privacy: "A health story of national proportions like the Ebola story pits the role of journalism against HIPPA rules. HIPAA (American Health Insurance Portability and Accountability Act of 1996) restricts patient information to doctors, direct caregivers, insurance companies and others expressly named in the Act."
HIPPA privacy rules do allow hospitals to release general information about a patient without releasing their names, such as where an infected person traveled, Tompkins reported. Dr. Art Caplan, head of the Division of Bioethics at New York University Langone Medical Center, told Tompkins that a national health crisis allows public officials to get information in order to be able to trace the contacts a patient had with others. But that loophole doesn't apply to journalists.
The U.S. Supreme Court granted certiorari yesterday on whether a Florida man convicted of drug crimes could be forced to give up his firearms, Reuters' Lawrence Hurley reports. Tony Henderson, a former Border Patrol agent, wanted to sell the guns or transfer ownership to his wife, but the lower courts have ruled that the federal ban on felons possessing firearms terminates all their ownership rights.
Pennsylvania Supreme Court Justice Seamus P. McCaffery has been suspended by his own colleagues, among other reasons, because of allegations he sent pornographic emails to other governmental officials, because he allegedly tried to blackmail a fellow justice and because he may have tried to "exert influence over a judicial assignment on the Philadelphia common pleas bench outside the scope of his official duties," the Pittsburgh Post-Gazette reports.
Justice J. Michael Eakin says that McCaffery tried to get Eakin to intercede with Chief Justice Ronald Castille to stand down on the email issue in exchange for not releasing emails that were sent to Eakin's private email account in 2010.
When working for The Legal Intelligencer, I broke the story that McCaffery contacted Philadelphia Court of Common Pleas leaders about a judicial assignment. I wrote at the time: "According to several knowledgeable sources in the Philadelphia court system, Pennsylvania Supreme Court Justice Seamus P. McCaffery contacted a high-level Philadelphia Court of Common Pleas leader about civil cases in 2012. Two of the cases, sources said, involved a law firm that had previously paid a referral fee to McCaffery's spouse."
And the Philadelphia Inquirer first reported that McCaffery's wife and chief aide, Lise Rapaport, had been paid 19 referral fees from law firms. The court said in its order that McCaffery "may have acted in his official capacity to authorize his wife to accept hundreds of thousands of dollars in referral fees from plaintiffs' firms while she served as Justice McCaffery's administrative assistant." Also at issue for McCaffery are the allegations that he contacted a Philadelphia traffic-court official in connection with a traffic citation issued to his wife.
Castille said in his concurrence to the order that McCaffery sent an email depicting a "woman in sexual congress with a snake" that may violate Pennsylvania's obscenity law. Castille also called McCaffery a sociopath "who has the personality traits of not caring about others, thinking he or she can do whatever is in that person's own self-interest and having little or no sympathy for others."
In dissent from the decision to suspend McCaffery, Justice Debra Todd said "even a justice is entitled to due process" and the matter should be referred to the separate constitutional court, the Court of Judicial Discipline.
A Pennsylvania judge presiding over an investigating grand jury squelched a subpoena issued to Pittsburgh Tribune-Review reporter Brad Bumstead, that paper reports. The strangest part of the situation is that the judge says the subpoena--which had his signature on it-- was issued without his knowledge: "Judge William R. Carpenter, who is supervising the grand jury and whose signature appears on the subpoena issued Wednesday night, told the Trib he did not know about the subpoena until he talked with a reporter."
The judge has appointed a special prosecutor to investigate whether information has been leaked by the Attorney General's Office.
Several media-law experts told the Trib that Pennsylvania has a strong law that shields reporters from having to reveal their confidential sources.
Here's a piece I did for the Connecticut Law Tribune about a new call for Connecticut to cut its prison population:
It's not every day that red-state Texas is pointed out as a paragon for reform that blue-state Connecticut should emulate.
But the author of a new book calling for a mass overhaul of Connecticut's criminal justice system says that Connecticut should adopt some of the best practices that have helped Texas reduce its prison population. Texas has reduced the number of inmates so much that the Lone Star State is closing prisons.
Brian Moran, a partner at Robinson & Cole in Stamford, is the principal author of the book: "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream."
Moran notes that Connecticut's prison population has grown from 3,800 inmates in 1980 to almost 17,000 as of January 2014. Meanwhile, the state spends more than $1 billion annually on incarceration costs, but well more than half the prisoners who are released end up back behind bars.
Federal prisons and state correctional facilities all have seen their populations explode because of the 40-year war on drugs, Moran said. It is estimated that in that time period, the penal population in the U.S. grew from 300,000 to more than 2 million.
But other states are further along in enacting reforms to steer more nonviolent offenders away from prison or to establish programming that helps ex-cons reintegrate into society after they finish doing their time, Moran said. "The 40-year war on drugs … is potentially affecting another generation of kids," Moran said. "We think it's long overdue for Connecticut to get onboard with this battle."
Linda Meyer, a Quinnipiac University School of Law professor and who was on the book's writing committee, said "everyone's intuition is that the more people you incarcerate, the less crime you have. We're trying to get the message out that is wrong."
The Connecticut juvenile justice system has taken steps that could offer guidance to the adult justice system, the authors argue. Even as the state has transferred more young lawbreakers from adult courts into the juvenile system, it has placed fewer juveniles in detention facilities and put a greater emphasis on rehabilitative programs. That focus has lowered recidivism rates, Moran says.
Similarly, the book says, the state should expand nonincarceration programs for adult offenders, ranging from transitional housing units for ex-cons to treatment programs for people with substance abuse issues and mental illness.
Moran and the coalition that backed his book project suggest that Connecticut should strive to cut its prison population in half in the next five years, close half of its prisons in five years, reduce recidivism rates by 30 percent in five years and reduce state spending on the prison system by half.
The books makes 30 recommendations for alternatives to incarceration, improving the reentry process, new legislation, new policies the executive branch could undertake and initiatives the Department of Correction could undertake.
Some of the recommendations include:
• Eliminate the requirement that inmates must serve 85 percent of a sentence for crimes classified as violent.
• Adopt reforms that allow for early parole and more time off for good behavior.
• Allocate one-third of any cost savings realized from reducing the prison population toward educational programs and vocational training aimed at reducing recidivism.
• Give judges more discretion in handing out sentences, "including the use of … offender-based data systems, sentencing-support analytics and mandatory offender family impact statements to facilitate informed decision-making."
• Provide employers who hire ex-offenders with tax incentives as well as immunity from liability.
When states such as Texas have enacted these sorts of reforms, and have reinvested savings in treatment, education and providing support to former inmates, they have also seen a reduction in the rate of crime, Moran said. Orienting Connecticut's criminal justice system in this way would provide a "trifecta of benefits: lower costs, lower recidivism and improved public safety," Moran said.
He added that there is a fourth benefit: Better success at achieving the "holy grail of corrections," which is to rehabilitate inmates and restore them to their families.
Moran, who practices in commercial litigation with an emphasis on antitrust, intellectual property and licensing disputes, was drawn to the topic of criminal justice because of his friend William Fox's involvement with the Malta Justice Initiative. The Southport-based group has an active prison ministry providing support to people who are incarcerated. It is overseen by a Roman Catholic religious order called The Sovereign Military Hospitalier Order of St. John of Jerusalem of Rhodes and of Malta.
John Santa, who is chairman of the initiative, said the gist of the book is about "more effective and compassionate treatment when [inmates are] in and more effective support when they're out and reentering." The group says that while Moran is the main author, the book is a collaborative effort, including the input from a bipartisan coalition of businesspeople, correctional professionals, legislators, judges, law enforcement professionals, lawyers, ministers and academics in Connecticut.
Moran also was drawn to the book because of reading Michelle Alexander's book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," in which she argued that young black men, who go to prison for drug crimes 20 to 50 times more often than young white men do, are "part of a growing undercaste, permanently locked up and locked out of mainstream society."
The racial disparity in the criminal justice system is no different in Connecticut than it is nationally, Moran said. Blacks and Latinos make up 24 percent of Connecticut's overall population but they comprise 66 percent of the prison population.
That is another reason for criminal justice reform in Connecticut, Moran said. "There are two Connecticuts," he said, "the inner cities and what is happening outside of the bigger cities."
For more information on "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream," visit http://thejusticeimperative.org.
After a construction project that was marred by a lawyer who got on the other side of the development deal, a new courthouse has opened in Philadelphia for domestic relations and juvenile cases, Newsworks reports. The Legal Intelligencer reports how "the courthouse's development process was not a smooth affair. Former Obermayer Rebmann Maxwell & Hippel lawyer Jeffrey Rotwitt served as an attorney for the state courts in their efforts to find a developer for the building, but then teamed up with the developer, Donald W. Pulver. Rotwitt had been splitting the development fees with Pulver along with taking advanced payments on his fee agreement with the court." However, advocates for the new courthouse said dilapidated facilities are being replaced with a state-of-the-art courthouse that will better serve justice, both news outlets reported.
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