The Supreme Court: No Cell-Phone Search Without Warrant

This morning, the Supreme Court ruled in Riley v. CA and U.S. v. Wurie, 9:0, that searching a cellular phone requires a warrant. 

Chief Justice Robert's Op. Ct. analyzed phone searches in the context of the Search Incident to Arrest exception to the warrant requirement, comparing a phone search to a search inside a pack of cigarettes in Robinson. Robinson, you'll recall, extended the Chimel doctrine to all containers within the "grabbing area" of the suspect. But given the newness of the technology, which the framers (duh) could not anticipate, the court thankfully is unable to find "guidance from the founding era" and turns to reason and pragmatics. 

The state presented essentially two rationales for warrantless searches of cellphones: harm to the officer and destruction of evidence. The opinion summarily dismisses the former: contrary to the cigarette pack in Robinson, there could be no argument of a physical weapon hidden in the phone (the police knew what they were looking for: data), and if there were any concerns of alerting someone to the presence of officers using the phone, those could be addressed via other exceptions to the warrant requirement, such as exigent circumstances, in specific cases. As to the second rationale, with the phone itself physically in the hands of the police, the main concerns regarding destruction would involve encrypting and remote wiping, none of which seems to the Court to be an empirically-supported practical concern (maybe it will be, from now on?). Also, the practicalities of securing the scene, bringing the suspect into custody, etc., mean that the police won't turn its attention to the phone right away anyway, and therefore the warrant requirement is not onerous or time-consuming for the investigation as a whole.

The decision then explains its particular sensitivity to the issue of phones because of the heightened privacy interests involved. Cellphones differ from physical objects in their immense storage capacity, which means that one carries on one's person intimate, sensitive data from various sources: locations, conversations, history of internet searches, purchases, dating and romantic life. These merit particular scrutiny on the part of the Court and limitations on police power.

The court also rejects other analogies made by the state: to cars, to pen registers, to pre-digital phones. The rationales for the rejection are all about preferring a bright-line rule and concerns abou spillover of information that was not available before the era of smartphones.

(Justice Alito, concurring in judgment, disagrees that danger to the officer and risk of evidence destructions were the rationales behind Chimel, points to some anomalies created by the decision, but does not see a workable alternative.) 

Three notable things:

(1) The decision is refreshing in its willingness to engage with technology and fully comprehend its implications. It is not driven by technophobia (like, say, Kyllo), but by the experience of people who use phones daily.

(2) Not unrelated: Like Jones, this is one more decision that protects the lifestyles and technologies of the middle class. As opposed to, say, searches of homes with no curtilage, or stops and frisks in the street, both of which fall under the "poverty exception", the privacy intrusions in Jones and Riley are both such that the Justices might be able to imagine themselves subjected to them.

(3) Note that in the era of smartphones, police officers have phones, too. And they can use them to call a courthouse and get a warrant. So, this decision might not stave off privacy intrusions for very long. The extent to which the cellphone warrant requirement is not merely a formality depends on the extent to which judges will exercise discretion in issuing warrants, which we know, empirically, to be fairly limited.

What do you think about the decision?

When is an Anti-Homelessness Ordinance Vague?

"You know those ducks in that lagoon right near Central Park South? That little lake? By any chance, do you happen to know where they go, the ducks, when it gets all frozen over? Do you happen to know, by any chance?"

--Holden Caulfield, in J.D. Salinger, Catcher in the Rye

When I teach 1L criminal law, my preference is to focus not on the sensational cases of serious crime, but on the everyday workings of the system: drugs, property, and various quality of life offenses. As it turns out, teaching the principle of legality, vagueness, and other important basic tenets of criminal legislation becomes apropos and important when using the example of anti-homelessness legislation of various stripes. Many criminal law casebooks include Chicago's ban on loitering and Chicago v. Morales. I like creating a timeline of legislation, showing how cities have consistently tried (and sometimes failed) to find ways to target the poor and get them off the streets. Sit/Lie ordinances are a classic example, as is the latest bout of litigation about this, which involved ordinances that prohibit one from sleeping or living in his or her vehicle.

In Desertrain v. City of Los Angeles, decided a few days ago, the Ninth Circuit tackled a municipal ordinance prohibiting the use of a vehicle “as living quarters either overnight, day-by-day, or otherwise.” The ordinance itself is not new, but it became a convenient enforcement vehicle (pun intended) after an angry "town hall on homelessness" in 2010. As a result of the aggressive enforcement efforts, several folks down on their luck (read: petitioners) tried to craft their behavior to comply with the ordinance as best they understood it: one of them, thinking the ordinance probably applies only to public streets, slept in his car in a church parking lot. Another, in an effort to comply, slept in the street, but kept some items, such as his sleeping bag. Another petitioner, left without work after a head injury, slept in her RV parked in her church. And another one was cited despite not sleeping in his van, just because he stored many items in it.

The officers enforcing the law were not given much instruction. In a memo from 2008 cited in the decision, officers were instructed that  “report must describe in detail observations . . . that establish one of the following — (i) overnight occupancy for more than one night or (ii) day-by-day occupancy of three or more days." In another memo, from 2010, officers were told to “adhere to the ‘Four C’s’ philosophy: Commander’s Intent, Constitutional Policing, Community Perspective, and Compassion,” with no further details.

The Ninth circuit found the ordinance unconstitutionally vague, because its articulation left people in serious doubt as to what behavior constitutes "living" in a vehicle. "Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain?" But, of course, as the court knows, middle-class folks talking on their cellphone in the car would not be targeted; the court explicitly says that the law lends itself to arbitrary enforcement and criminalization of the poor.

There are some pretty interesting things going on here. First, what is the relationship between vagueness and the potential for arbitrary enforcement? Yes, miscellaneous so-called quality of life offenses tend to be enforced disproportionately (exclusively!) against the poor. But don't we disproportionally target the poor in enforcing drug offenses, prostitution offenses, property offenses, and even some types of violent offenses? It seems that anti-homelessness bills in all their iterations seem unique to the court, and I think it might be because they are all rather clumsy ways to get around the challenges of prohibiting status rather than criminal behavior. Loitering, sitting on a sidewalk, and sleeping in your car are all things you do when you have nowhere else to go. There seems to be some sort of status/behavior continuum, by which being addicted to drugs is a status one can't help, but being drunk in public is a legitimate offense (even if you have nowhere else to go. Homeless? Don't drink.) Living in your car is vague, but sitting or lying on the sidewalk between certain hours is behavior you can presumably control and therefore a legitimate target of law enforcement. While we can dispute some of these distinctions (I know I do), you could at least make a half-decent argument that there's a free will element, flimsy as it is, that needs to be there to distinguish between a legitimate behavior prohibition and illegitimate prohibition of status.

But there's something else that seems to be going on, and that's a balance of NIMBYism and individual rights. The Ninth Circuit's Judge Kozinsky, who thought that sit-lie ordinances were fine and peachy, describes the motivation of the City of Seattle right at the beginning of his decision: "Seeing the wisdom of preserving the sidewalk as an area for walking along the side of the road," he says, "the City of Seattle passed an ordinance generally prohibiting people from sitting or lying on public sidewalks in certain commercial areas between seven in the morning and nine in the evening." Ostensibly, this is about legislative accuracy - hours defined, places clearly defined, all of which makes the behavior presumably easy to avoid. But the undercurrent is also that a city is right to clear its sidewalks for some of its residents by prohibiting others from blocking the way by sitting on them.

Which begs the question, how are people sleeping in their car a problem? True, the Los Angeles city ordinance, as it is, is vague. But what if the ordinance,  in lieu of prohibiting "using a vehicle as living quarters", prohibited "spending the night, between midnight and 5am, inside one's functioning vehicle, no matter where it is parked, for three consecutive days"? That's not all that vague, is it? And yet, we all have a nagging feeling that, despite the clearer articulation of prohibited behavior, some people are going to get arrested and some aren't.

The real question beneath the surface is, why does it matter to the city whether someone down on his or her luck sleeps in their car? Presumably, if someone sleeps in her car, she doesn't get cold and sick; she's not drunk in the street; and she's not otherwise causing mischief or taxing our already scant welfare dollars. The response has got to be some sort of NIMBYist aesthetic distaste, which Judge Kozinsky's decision in Roulette glosses over but never addresses directly. What the architects of this ordinance would really want is for the homeless population to disappear. But because these are real people, they're not going to just vanish like Holden Caulfield's ducks in Central Park. They still have to sleep and eat, and they're going to have to find ways to do it, and going one by one to eliminate these modes of survival, vague or not, arbitrary or not, is cruel and inhumane.

As a brief coda, this case didn't raise any Fourth Amendment issues, but it has always fascinated me how the Fourth Amendment makes both homes and cars into special places with special rules, in opposite ways: homes receive extra protection and cars receive explicitly less protection. Presumably, the consitution protects "people, not places", but what with the return to tresspass theory in Jones, It seems to me that the economic downturn calls for a more sensitive conceptualization of the car and its role in people's lives. What with the scholarly attention to the American cult of homeownership (see here, here, here, and here) we forget that we also have a fairly robust car culture, which impacts urban planning and even globalization. The centrality of the car to one's lifestyle is as American as apple pie. Maybe the downturn has created an important permutation in the cultural role of vehicles, meriting them more constitutional protection than would be justified by a narrow conception of them as vehicles.

Cheap on Crime Now Available for Preorder

Great news! Cheap on Crime is now available to preorder on the University of California Press website or on Amazon.

State Budget 2014-2015

Just in the nick of time, the CA Legislature has approved the 2014-2014 state budget.

The passed budget contains a few highlights pertinent to the criminal justice system, which can be found in the trailer bill, AB 1468:

• Persons with felony drug offenses will now be eligible for CalFRESH & CalWORKS; 
• The budget allocates $2 million for licenses/I.Ds for parolees; and,
• There will be a presumption of split sentencing for realigned offenders. 

The final budget bill, SB 852, can be seen here.

Orange is the New Black, Second Season - Spoiler Alert

I've just finished viewing the recently-released new season of Orange is the New Black, which I had awaited with much anticipation since reading Piper Kerman's book and the first season. It was everything I hoped for and more, and the storylines were engaging and fantastic. And, even taking into account what we all already know--that TV series aim to entertain and have to compete in the ratings arena--this season's plotlines highlight some important prison issues that the public may not be aware of and offers an intelligent, critical look at them.

Let the spoilers begin!

This season's episodes are drawing attention to two populations of inmates that have previously been in the dark to the public: the old and the infirm. It's easy for the public to imagine the typical prisoner as a young black male, and the statistics on prison population confirm the overrepresentation of such inmates, but that ignores the growing aging population in prison and the special problems they pose. As life-course criminology shows, people tend to age out of street crime as a natural transition to adulthood, and lengthy incarceration beyond those periods, particularly for nonviolent, nonsexual offenses, therefore raises serious questions.

In Cheap on Crime, I talk about the rise in attention of correctional authorities to the old and the infirm, modifying Feeley and Simon's risk-based actuarial justice to a cost/risk equation. That is, recession-era politics look not only at the risk an individual poses, but also at the cost of his or her incarceration. Orange is the New Black raises these hard questions through the stories of older and infirm inmates these season, focusing on two in particular: Sister Jane Ingalls, an excommunicated, politically active nun incarcerated for chaining herself in place at a nuclear weapons base during a political protest, and Rosa Cisneros, a former professional bank robber now undergoing chemotherapy for an aggressive cancer.

Sister Ingalls, friends with a group of older inmates, witnesses the painful "compassionate release" of a fellow inmate with Alzheimer's, shocked at the fact that no plans are made to care for the inmate after dumping her on the street. This sad and shocking fact reflects the weakness of many similar "compassionate release" programs designed to save money on care of the elderly without thinking about support following their release. Horrified by the prison authorities' indifference to the plight of an old, frail, sick inmate, Sister Ingalls embarks on a hunger strike. For a while, she sits on the sidelines of a group of inmates organizing a hunger strike for various issues, and eventually, she remains the lone hunger striker after other inmates are placated with some minor concessions.

Notably, some of the serious issues raised in the context of the hunger strike mirror events from the recent Pelican Bay hunger strike. One of the demands of the strikers in the series was to clarify the administrative policies behind sending inmates to the SHU. Of course, in Orange is the New Black, we only see the SHU being used as a punitive, disciplinary mechanism, rather than as a vague, indefinite status for suspected gang members, as is the case in Pelican Bay, Corcoran, and elsewhere. Nonetheless, we get to see the impact of a month in the SHU on two inmates: Chapman and Watson, both of whom are deeply traumatized by their stay in solitary confinement. The other important issue raised in the series is force feeding of Sister Ingalls - shown as an unpleasant process through IV and raising problematic ethical questions. As some readers may recall, Judge Henderson's order to allow force feeding of inmates effectively ended the Pelican Bay strike, and more or less around the same time the world was shocked by rapper Mos Def's demo of force feeding in Guantanamo.

 

Rosa Cisneros' chemotherapy treatments also confront the viewers with the liminal place between inmate and patient. The series pays careful attention to Rosa's transportation in and from prison; to her shackling and unshackling moments at the doctor's office; and to a teenaged fellow cancer patient's confusion about her prison uniform, thinking it's merely "old lady chemo clothes." Rosa bonds with the teenager through stories of her history as a professional bank robber, which we see in flashback, reminding us that a bald, ill woman was once a vibrant, energetic adolescent involved in daring criminal enterprises. The last scene of the season sees Rosa transform once more, as she "goes with a bang" into her younger, energetic self, daring and transgressing one more time. But before that glorious, powerful end, we see a scene far less dramatic but equally moving: Rosa sits in Healy's office, where she receives the news that the Department of Corrections will not fund surgery for her, which essentially dooms her to an ineffective chemo course and to an early grave. She receives these news, as well as the news of having three more weeks to leave, in serenity and acceptance. "Talk to me," she says to the doctor, "like you would talk to someone you like."

Last but not least, in one of the comical scenes, the inmates are treated to a "mock job fair", which starts with a jovial dress-up and fashion show, and continues with mock interviews with, of all people, the representative of Philip Morris ("because who else would employ former inmates?")

Everything about this bullshit so-called rehabilitation program screams the need for useful, realistic, evidence-based vocational training. The inmates are dressing up and interviewing for positions they have no hopes of receiving after their release. The program becomes mere entertainment, a spectacle, a mockery of reality-show-type contests, and does not provide any useful skills for the outside world. When Taystee, the only inmate who seems to take the job fair seriously, asks the Assistant Warden whether the "winner" of the job interview will actually receive a real job, she is mocked and offered a $10 addition to her commissary funds. The warden's mockery implies that the rehabilitative programming is never seriously meant to rehabilitate, which reflects much of the unsuccessful prison programming that led Robert Martinson to conclude that "nothing works."

As an aside, the recession may have changed this by prompting states to reduce their recidivism rates to save money. I've just received word that the Council on State Governments' Justice Center will be releasing a report tomorrow, timed to an event on Capitol Hill, showing 6%-18% decline in recidivism rates in eight states, due to conscious efforts to invest in effective rehabilitation and reentry programming. The humorous scene in Orange is the New Black is a reminder of how time served can be effectively used, or completely wasted, depending on the thoughtfulness and genuine motivation of correctional authorities.

What are your favorite moments, characters, and issues, from Season 2?

Cheap on Crime: Forthcoming Feb 2015!

Dear blog readers - I have good news to share: My book, Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment, has entered the production stage at the University of California Press, and will be available Feb. 2015!

Since the book idea sprang from this very blog, many of you may find it of interest. The book takes a broad look (nationwide, but with a focus on California) at developments in the American correctional landscape since the Great Recession of 2008 and sets out to understand the effect the recession, and recession-era politics and rhetoric, have had on penal policies.

The book relies on two theoretical foundations: critical Marxist social history, which predicts that hard times lead to more public punitiveness aimed at the lower rungs of stratified society, and public choice economics, which predict that during economic downtimes we'll only punish as much as we can afford. These two bodies of literature seldom speak directly to each other, but when read together they actually allow us to make sense of much of the punishment policies and practices we've seen in the last six years. The book identifies a new recessionary logic, humonetarianism, which allows politicians, lawmakers, public and private officials of all stripes to justify a retreat from the punitive policies that started in the Nixon era by calling for financial prudence and austerity. The book analyzes four components of humonetarianism: Scarcity-related rhetoric, the ability to generate bipartisanism and bring together strange bedfellows, new practices constrained by a leaner market, and new approaches toward inmates as burdens and service consumers. It also looks at the price we pay for advancing policies through cost rhetoric, makes some suggestions to social justice advocates, and tries to predict which, if any, of the changes we are making will remain in place when the economy improves.

I will be giving two talks about the book on professional panels in San Francisco this summer. The first talk will be at the Society for the Study of Social Problems and will focus on new perceptions of inmates.

When: Saturday, August 16, 12:30-2:10
Where: San Francisco Marriott Marquis, Room Foothill D
Panel topic: Punishment and Culture

The second talk will be at the American Sociological Association's annual meeting, whose general subject, Hard Times, is especially pertinent to the book subject. It will include an overview of the book's findings and themes.

When: Tuesday, August 19, 12:30-2:10
Where: San Francisco, either at the Hilton or at the Parc55 Wyndham (exact location TBA)
Panel Topic: Law in Hard Times: Economic Inequality and the Law

Publication events next spring will include a special book party at UC Hastings and an event at San Jose State University's Ann Lucas Lecture Series. There will be author-meets-reader events in various professional conferences and more book-related events - watch this space!

Please contact me if you'd like to host an event/book club/book party in the Bay Area, California, and Beyond, in early 2015.

Correcting the Crack/Powder Cocaine Sentencing Disparity

Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack  and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences.

For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a "triad" of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).

The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys--in Los Angeles, Santa Barbara, Santa Clara, and San Francisco--are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.

That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown's desk soon.

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cross-posted to PrawfsBlawg.

Solitary Confinement Lawsuit Attains Class Action Status

The struggle against long-term solitary confinement in California continues! Months ago, we reported about the certification hearing for Ashker v. Brown, a lawsuit against solitary confinement.

The most recent news are from June 2: U.S. District Court Judge Claudia Wilken granted the lawsuit class action status. The L.A. Times reports:

"We pose a fundamental question: Is it constitutional to hold someone in solitary confinement for over a decade," said Alexis Agathocleous, staff attorney for the Center for Constitutional Rights in New York. 

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations.

Many of the inmates named in the suit also were organizers of a lengthy statewide prison hunger strike last summer. 

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

We will keep following up on the lawsuit and reporting on its progress.

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cross-posted with some changes at Prawfs Blawg.

From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women's Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities' responsibility for women's health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It's fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas' custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero's baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There's hardly anything I can say about this truly horrible incident and the cruelty that led to it that won't trivialize it, and the basic facts behind it do not seem to be in dispute. My only additional thought about this has to do with the fact that Guerrero's tragedy occurred in a public setting--a Texas state prison--but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers' institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons--utilities, phones, cantine services, food, transportation, health care--are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years--such as Alabama's Sheriff Bartlett's profiteering off his wards' starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks--involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning "private prisons" misses the point. All actors in these dramas of human cruelty and profiteering--the state included--are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.
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Cross-posted on Prawfs Blawg.