HERE’S YOUR CHOICE: FIVE YEARS IN JAIL OR SUBMIT YOURSELF TO A PUBLIC FLOGGING

The very highbrow Chronicle of Higher Education reluctantly endorses flogging. Should you? 


Which would you rather do, five years in prison or submit yourself to a flogging? The author, Peter Moskos, while conversing over a little too much red wine in New Orleans, finds an interesting idea as well as the title for his new book on crime and punishment in America.

Here is an excerpt from Peter Moskos’ article from the Chronicle of Higher Education (In Defense of Flogging – The Chronicle Review – The Chronicle of Higher Education

And yes, if you’d like to read an entire book about his thesis, the title of his new book, if you’ve not yet guessed, is of course,  In Defense of Flogging. I’ll pour some more of that red wine as you read.

Excerpt: For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. 
If you were sentenced to five years in prison but had the option of receiving lashes instead, what would you choose? You would probably pick flogging. Wouldn’t we all?
I propose we give convicts the choice of the lash at the rate of two lashes per year of incarceration. One cannot reasonably argue that merely offering this choice is somehow cruel, especially when the status quo of incarceration remains an option. Prison means losing a part of your life and everything you care for. Compared with this, flogging is just a few very painful strokes on the backside. And it’s over in a few minutes. Often, and often very quickly, those who said flogging is too cruel to even consider suddenly say that flogging isn’t cruel enough. 
My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. 
America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.
All this because we’ve taken a traditional punishment such as flogging out of the arsenal. We’ve run out of choices, choices desperately needed if we’re to have any hope of reducing our incarceration rate by 85 percent, back in line with the rest of free world, back to a level we used to have. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?

Your Government Gives You Justice Or At LEAST LOTS OF STATS — With Lies, Damn Lies & Statistics for Police Misconduct, Inappropriate Arrests & Misuse of Police Resources

The Bureau of Justice Statistics (Bureau of Justice Statistics (BJS) – Data Analysis Tools) has the legal tool you’ve been waiting for  – The Arrest Data Analysis ToolThis cite allows you, by choosing “Agency-Level Counts” to see the specific number of arrests made by each law enforcement agency in your jurisdiction, further itemized by year, type of crime, age bracket of the person arrested, gender, and race. Potentially this is useful in determining Police Misconduct, Inappropriate Arrests and Misuse of Police Resources. 


In the Tampa Bay Area including Clearwater and St. Petersburg the statistics show law enforcement is blindly and foolishly focused on arresting nonviolent crimes, including drug crimes, white collar crimes and fraud, rather than attempting to protect citizens from violent acts and immediate harm.


Here is the Methods Guide: Bureau of Justice Statistics (BJS) – Data Analysis Tools
Here is the User’s Guide: http://www.bjs.gov/arrests/resources/documents/adat_user_guide.pdf


This is useful information as long as the numbers given by each law enforcement agency are based on undiluted facts.


White Collar Crime Criminal Defense Attorney in Clearwater, FL
Violent Crimes Criminal Defense Attorney in Clearwater, FL



GO TO CHURCH OR GO TO JAIL — JUST DON’T GO TO ALABAMA

In a small town called Bay Minette in a faraway, possibly imaginary, place called Alabama, non-violent misdemeanor offenders will have an unusual choice when facing their judge – either go willingly to church for a year or do the time in jail.  Odd that the city fathers view both as punishment. Good thing no misdemeanants already attend church in Bay Minette or there wouldn’t be much of a choice for any of them, but clearly no church goers have ever committed crime in Alabama…except for a couple of recent Governors.
I wonder if there are any Rastafarian churches  Rastafari movement – Wikipedia, the free encyclopedia in Bay Minette, for an especially uplifting service Entheogen – Wikipedia, the free encyclopedia? or perhaps a religion featuring peyote. Peyote – Wikipedia, the free encyclopedia


Here’s an excerpt from an article about your favorite town in Alabama: 


Non-violent offenders in Bay Minette now have a choice some would call simple: do time behind bars or work off the sentence in church.

Operation Restore Our Community or “ROC”…begins next week. The city judge will either let  misdemenor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.
If offenders elect church, they’re allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender’s case will be dismissed.
Bay Minette Police Chief Mike Rowland says it costs his department about 75 bucks per inmate per day.Rowland says the ROC program will be cost-effective and could change the lives of many people heading down the wrong path.
So far, 56 churches in North Baldwin County are participating in ROC.  (Full Article: Serve Time In Jail…Or In Church? | WKRG
Here’s a further exert from another article with, you guessed it, lightning bolts from the ACLU: State ACLU Executive Director Olivia Turner says the alternative sentencing program “flagrantly” violates the Constitution. She says the government cannot force someone to attend church. She says that when offenders must pick between prison or religious services, they do not have a true choice. (Full Article: ACLU: Bay Minette Cannot Impose Church Sentences | WKRG)

RESOURCES FOR SEXUAL BATTERY CASES IN THE TAMPA BAY AREA

Investigations After an Arrest for Sexual Battery in The Tampa Bay Area

It’s important to remember that typically (though not always) within 21 days of the arrest for any crime including sexual battery in the Tampa Bay area; the prosecutors at the State Attorney’s Office will make an important decision on whether to formally file charges against a potential Defendant. 
An effective strategically minded criminal defense attorney hired during those 21 days should do the following:
  1. Present important evidence to the State Attorney’s Office that establishes innocence.
  2. Provide information on new witnesses and establish possible problems with previous witnesses.
  3. Prepare evidentiary motions when law enforcement has failed to meet their constitutional duties.
  4. Protect the client from the prospect of prison, loss of community reputation and media hysteria.
The filing decision can be one of the most important events that will occur in the case. When contradictory evidence is immediately brought to the attention of prosecutors, showing them that they may lose at trial if they proceed, then and only then is it possible that charges may be dropped. Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County and Pinellas County.
Sexual Battery or Rape Allegations at College Campuses in Tampa and Florida
The number of sexual battery allegations has risen dramatically on college campuses throughout Florida including the University of Tampa and the University of South Florida. Recent studies based on a survey of 6,129 college students enrolled at 32 educational institutions in the United States have shown shocking statisics including (see the University of Florida Police Department web page with more information including these important statistics at University of Florida Police Department ): 
  • One in eight college women report having been raped while 54% of women surveyed reported being the victim of some form sexual abuse;
  • 84% of those women knew their assailant prior to the attack; and
  • 57% of those rapes happened on a date.
Contact an experienced criminal defense attorney immediately after learning of an accusation of sexual battery by a college student from Tampa in HIllsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County or St. Petersburg or Clearwater in Pinellas County, Florida.
Definitions in Florida’s Sexual Battery Statute as Found in the Florida Statutes (see
  • Sexual Battery – Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
  • Victim of Sexual Battery – Florida law defines the term “victim” to mean any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
  • Sexual Battery Offender – Florida law defines the term “offender” to mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
  • Consent – Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any “coerced submission” that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Florida’s Penalties for Sexual Battery (Statutes & Constitution :View Statutes : Online Sunshine )
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties. Under the Junny Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.
794.05 Unlawful sexual activity with certain minors.— (see Statutes & Constitution :View Statutes : Online Sunshine)

(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.
(3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.
(4) If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.



Sexual Battery – Capital Felony under Florida Law

If the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished as a capital felony under Florida law.
Sexual Battery – Punishable by Life Felony under Florida Law
  • If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
  • If the act of sexual battery is committed against a person who is 12 years of age or older without the person’s consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.
Sexual Battery – First Degree Felony (Statutes & Constitution :View Statutes : Online Sunshine)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent under the following circumstances:
Physically Helpless – When the victim is physically helpless to resist. Florida law defines the term “physically helpless” to mean being asleep , unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.
Serious Personal Injury – When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.
Retaliation – When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term “retaliation” is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.
Mentally Incapacitated – When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term “mentally incapacitated” to mean being temporarily incapable of controlling or appraising the victim’s own conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim’s consent or due to any other act committed upon the victim without consent.
Mentally Defective – When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines “mentally defective” as any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.
Physically Incapacitated – When the victim is physically incapacitated. Florida law defines the term “physically incapacitated” as meaning any bodily impairment or handicap that substantially limited the alleged victim’s ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.

Sexual Battery by Law Enforcement, Probation, or Correctional Officer- Florida Statute (4)(g)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent when the offender is in a position of authority or control. Additionally, the victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender. Occupations that are included within term position of control or authority include:
  • law enforcement officer;
  • correctional officer;
  • correctional probation officer;
  • officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
  • or anyone who leads the victim to reasonably believe that the offender is in a position of control or authority as an employee or agent of government.
Anyone who has been the victim of an act of sexual violence by a law enforcement officer, probation officer, correctional officer, or prison guard should discuss the case with an experienced civil rights attorney in the greater Tampa Bay area. The law enforcement agency that will investigate the claim may not gather all of the evidence against the person accused. Additionally, although victims are rarely prosecuted for bringing false claims, the victim of a sexual assault or battery by a law enforcement officer can be charged with providing false allegations in a specially created statute to protect law enforcement officers.
False Accusations of Sexual Battery under Florida Law 794.011(4)(g)
Florida Statute Section 984.011(10) provides any any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree punishable by five years in Florida State Prison.
Surprisingly, such a criminal provision does not apply when the person falsely accused is not a law enforcement officer or other person in authority or control.
Sexual Battery – Second Degree Felony
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use violence or physical force likely to cause serious personal injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.
Sexual Battery – Custodial or Familial Position of Offender
If the person accused is in a custodial or familial position of authority over the victim, then the victim’s consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.
In other words, it is not a defense that the person accused was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.
Victim is 18 years old or older – If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.
Victim is between 12 and 17 – If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.
Victim is under 12 years old – If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the crime is punishable as a capital or life felony.

Note for Statutory Rape Crimes — Ignorance or belief as to victim’s age no defense.When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.



Related Links
Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County, and Pinellas County.
Ignorance of the Victim’s age is no defense to Statutory Rape under the Florida Statutes, see: Statutes & Constitution :View Statutes : Online Sunshine 
The Rules of Evidence to be used in Sexual Battery cases may be found at the following link: Statutes & Constitution :View Statutes : Online Sunshine
Florida’s list of Qualifying Offenses for Sex Offender Registration Includes Sexual Battery – This information is found at the Florida Department of Law Enforcement. FDLE can be thought of as Florida’s FBI with crime labs, evidence resources, and it’s own law enforcement apparatus with a directive of solving crimes which transcend the jurisdiction or capabilities of local agencies such as the Hillsborough County Sheriff’s Office (HCSO, Tampa) or the Pinellas County Sheriff’s Office (PCSO, Clearwater, St. Petersburg). The FDLE information on sexual offenders & sexual predators, is presented under the Florida Sexual Predators Act under Florida Statute Section 775.21, and concerns the Registration of sexual offenders for sexual battery or aggravated sexual battery under the law of Florida.
Sexual Battery Information from the University of Florida Police – This web page is provided by the University of Florida Police Department and its Community Services Division and shows university students how they can lessen the chances of being a victim of sexual battery from perpetrators known or unknown.
University of Tampa’s Guidelines on Sexual Assault – Each university in the Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the University. The guidelines for sexual assault include the following: survivor assistance guides, educational programs and counseling programs, a rape victim’s hotline, and the process for any campus disciplinary proceedings upon finalization of the investigation by the Tampa Police Department and the Hillsborough County Sheriff’s Office or FDLE.
University of South Florida (USF) Guidelines on Sexual Assault – These guidelines are for USF and include the Victims’ Advocacy Program which can assist University of South Florida students or employees who are victims of actual or threatened violence which may including the following crimes: assault, battery, sexual assault or sexual battery. The University of South Florida Police Department often investigate these allegations and report statistical information concerning rape allegations by students or employees of the University.

ONLY IN FLORIDA: HEADLIGHT FLASHING — IT’S ILLEGAL — 2,400 HEADLIGHT SIGNALING TICKETS GIVEN

“The law does not content itself with classifying and punishing crime. It invents crime,” from An Almanac, by Norman Douglas, 1945


Florida is certainly a beautiful paradise with breathtaking beaches, stunning sunshine, and a lack of humidity – well two out of three isn’t bad – but alas, our Sunshine State is also one of the most innovative places on earth for the invention of crime. Wouldn’t we all be better off if the governing folks up in Tallahassee would spend more time at the beach and less time making absurd laws? 


Recent articles from the St Petersburg Times (see Man sues Florida for right to flash headlights – St. Petersburg Times) note that the Florida Highway Patrol has given out over 2,400 tickets to drivers for Headlight Flashing (see for definition and history: Headlight flashing – Wikipedia, the free encyclopedia).


The absurdity of the law and how it is applied in Florida happily reaches even potential tourists in soggy sunless England. Below see an excerpt from an article from Britain’s Daily Mail Newspaper (see Driver sues state of Florida after getting ticket for flashing lights to warn others of speed trap | Mail Online for the full text). Just don’t tell them about the humidity…

A Florida driver is suing the state for wrongly issuing thousands of tickets to people who flashed their lights to warn other motorists of speed traps.
Erich Campbell says the act is not illegal and has filed a lawsuit on behalf of every driver fined for the violation over the past six years, accusing police of misinterpreting state law and violating motorists’ free speech rights.
‘I don’t like what the government is doing, especially now when most people have a hard time affording gas,’ the 38-year-old told WTSP.com. ‘And now they have to defend themselves against a made up charge that doesn’t exist.’
Mr Campbell says the FHP trooper told him what he had done was illegal.
‘You could tell in his voice he was upset,’ Mr Campbell told WSTP.com. ‘He was professional, he wasn’t rude, but you could tell he was irritated.’
‘This is a pattern, and it has mostly to do with frustrated police officers who feel they were disrespected,’ Mr Campbell told the St Petersburg Times. 
‘When someone comes along and rats them out, they take offense to it.’
Captain Mark Welch, a spokesman for the FHP, cited to the St Petersburg Times a law that says ‘flashing lights are prohibited on vehicles’ except for turn signals.
But soon after Mr Campbell launched his case against the state, the Highway Patrol ordered all troopers to stop issuing tickets to motorists who use headlights as a signal to other drivers.
‘You are directed to suspend enforcement action for this type of driver behavior,’ said the August 29 memo from Grady Garrick, acting deputy director of patrol operations.
The lawsuit estimates that 2,400 motorists in Florida were cited for headlight-flashing between 2005 and 2010.

Ticket: Mr Campbell says motorists are being unlawfully punished by frustrated police officers who feel they were disrespected

Ticket: Mr Campbell says motorists are being unlawfully punished by frustrated police officers who feel they were disrespected






Areas of Practice for Robert Hambrick – Attorney in Clearwater, FL
Clearwater, Forida DUI, DWI & Drunk Driving Criminal Defense Attorney
Forida DUI & DWI Frequently Asked Questions – FAQ

RATES OF DRUG USE FOR WHITES & BLACKS ARE THE SAME YET BLACKS ARE TEN TIMES AS LIKELY TO GO TO PRISON: THE CRIME OF PUNISHMENT

Studies indicate that drug usage is the same for whites and blacks in America, yet blacks are almost ten times as likely to go to prison as whites. Why? Is it racism or socio-economic status or the difference in usage patterns resulting in drug arrests or are there inherent flaws in the way justice is administered in America? Here is in part an excerpt from a review of the new book, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE by the late Bill Suntz. The review appears in Democracy Journal and can be found in its entirety here: Lincoln Caplan for Democracy Journal: The Crime of Punishment, his obituary can be found here: Bill Stuntz; taught Christian legal theory at Harvard – Boston.com , William Stuntz [1958-2011]: An examined life of thoughtfulness and grace


Excerpt from Review:

Issue #22, Fall 2011

The Crime of Punishment

The late Bill Stuntz was America’s leading thinker on criminal justice—and its hardest to categorize.

Lincoln Caplan
The Collapse of American Criminal Justice By William Stuntz • Harvard University Press • 2011 • 408 pages • $35
In the United States crime began to plummet more than 15 years ago……………..It did so for nearly a decade. It happened in every part of the country and in every category of crime. While the rate of decline has leveled off in recent years, to many this social achievement has meant that the country need not worry about crime anymore: The problem has been solved. That view is wrong. In reality, the problem simply exists in two places most Americans (and the media) don’t often bother to look: in crime-ridden sections of cities where minorities live, and in the overcrowded prison system that gives America the world’s highest rate of incarceration. The good news masks an ever-worsening tragedy in criminal justice.
The black homicide rate across the nation is six times that of the white rate. Chicago’s Washington Square neighborhood is poor and close to 100 percent black. The city’s Hyde Park neighborhood is affluent and mostly white. The homicide rate in the first is 26 times that of the second.
The most compelling explanation for the different crime patterns for blacks and whites is the effect of the criminal justice system’s breakdown on poor young black men, who have continued to commit crimes at a high rate, including violent ones, especially against blacks, and who regard the system as dramatically unfair and unworthy of their respect. The rate of imprisonment among white men is the highest it has been in American history, yet the rate is seven times higher among black men.
America’s prison system is now studied largely because of its failure. The prison population is unsustainably high—petty offenders are locked away with hard cases, overcrowding makes conditions dangerous and unhealthy, and financial costs to states are through the roof. The last time the country significantly reduced them, however, in the 1960s and early 1970s, the rate of crime skyrocketed. Neither option is acceptable. So what do we do?
In his posthumously published book, The Collapse of American Criminal Justice, William Stuntz argues that reform today should involve putting more control over decisions about what and who should be punished—and for how long—in the hands of neighborhoods most hurt by crime and decimated by punishment. It should, he writes, involve many more cops on the street and many fewer convicts in prison.
But the book is less a blueprint for how to make things right than an explanation of what went wrong over the past century. Its value comes from seeing American criminal justice whole, in an elaborate analysis of a complex system, and challenging the theories of retribution and deterrence that lead to an emphasis on punishment and that have dominated thinking about the field for the past generation.
“Today,” Stuntz explains, “our cities are considerably more violent than before the great crime wave of the twentieth century’s second half, yet the nation’s imprisonment rate is quintuple the rate before that crime wave began. If punishment deters crime, we seem to be getting much less deterrent bang for the imprisonment buck than we once did. Add it all up, and the picture is quite different than the conventional wisdom allows.”
Stuntz’s thesis is that the misrule of politics has replaced the rule of law, with a ratchet of ever-expanding criminal laws giving boundless discretion to police and prosecutors, leading to a system that wrongly punishes too many poor young black men. When the law gives that much discretion, he writes, it stops functioning as law and instead becomes an assertion of power. The recent decline in crime is less a sign of success than of pathology. The encouraging numbers are misleading. They conceal devastating failure. 
William Stuntz was one of the most influential and revered legal scholars of his generation, by acclamation the country’s leading thinker about criminal justice. His 25 years as a scholar, first as a law professor at the University of Virginia, then at Harvard, began when crime was a highly politicized issue and ended (tragically early—he died of cancer at the age of 52 in March) when crime had seemingly ceased to be an issue at all.
He developed an original, sweeping, and brilliant understanding of his field, which he sought to synthesize in this work. 
While he co-authored a shelf full of respected textbooks about criminal law and criminal procedure, this is his only book for a general readership. It is his masterwork. The book is written in direct, energetic, and forceful prose, without stinting on nuance. It is a form of purposeful history, with close analyses of Supreme Court cases and doctrine; crime data by race, class, and geography; the workings of American politics at the national, state, and local levels; the interplay of legal, political, economic, and social forces; and attention to seminal documents of law and governance, especially the Constitution and its Bill of Rights.


Drug Crimes Trial Lawyer & Criminal Defense Attorney in Clearwater, FL
Areas of Practice for Robert Hambrick – Attorney in Clearwater, FL

PHYSICIAN’S CONVICTION STANDS – GOVERNMENT NOT REQUIRED TO SHOW DOCTOR’S CONDUCT WAS THE PROXIMATE CAUSE OF DEATH MERE FACT THAT THE VICTIM USED DRUGS IS ENOUGH FOR ENHANCEMENT OF SENTENCE

Here in a new Federal case of interest to every medical professional, the Court determines that enhancement of a sentence for a doctor under the Federal statute requiring a cause-in-fact connection between the victim’s ingestion of the drugs and death, does not require that the defendant’s conduct proximately caused the death.  Be careful Doctors, you’re at risk every time you write a script if this case holds.


United States v. David W. Webb, No. 10–10574 


(September 12, 2011) Appeal from the United States District Court for the Northern District of Florida Panel: Hull, Black and Stapleton, Circuit Judges. 


Per Curiam: Affirmed Defendant–Appellant David W. Webb, a Florida-licensed physician, was convicted of 130 counts of wire fraud, health care fraud, and unlawful dispensing of controlled substances, including three counts charging that a patient’s death resulted from the use of controlled substances dispensed by Webb, or from his health care fraud violation. In two related issues of first impression, the Eleventh Circuit held that no foreseeability or proximate cause requirement is contained in the enhanced penalty under § 841(b)(1)(C) which applies whenever “death or serious bodily injury results from the use of” the controlled substance. That is, the government is not required to prove a defendant’s conduct proximately caused the victim’s death or that the death was reasonably foreseeable to the defendant. Rather, under § 841(b)(1)(C), the government must prove only that the death “results from” the victim’s use of a controlled substance charged in the indictment. Put yet another way, the statute requires a cause-in-fact connection between the victim’s ingestion of the drugs and death. It does not require that the defendant’s conduct proximately cause the death. 


Next, the Court held that Congress did not insert a foreseeability or proximate cause requirement into § 1347(a)’s penalty enhancement, either. This enhanced penalty applies if “the [health care fraud] violation results in death.” The Court stated that there was no principled way to distinguish between the “results in” language in § 1347(a) and the “results from” language in § 841(b)(1)(c). The lack of foreseeability or proximate cause language in § 1347(a) was telling, the Court wrote, because Congress has included such language in numerous other criminal statutes, including statutes where the required connection is between the defendant’s offense conduct and death or bodily injury. Third Circuit Judge Stapleton, sitting by designation, concurred with the first result but dissented from the second, agreeing with the conclusion of the Sixth Circuit on this issue that proximate cause is the appropriate standard to apply in determining whether a health care fraud violation “results in death,” writing that Section 1347 . . . does not deal with a discrete problem arising from products involving an inherent risk of serious injury or death. Rather, it provides an enhanced penalty for health care fraud if the fraudulent scheme of the defendant resulted in death or serious bodily injury. Section 1347 thus applies to a wide variety of economically motivated health care activities and focuses on the relationship between the defendant’s conduct and the consequences thereof. The full text of the decision can be found here: http://www.ca11.uscourts.gov/opinions/ops/201010574.pdf 


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OUR BIG BROTHER GOVERNMENT TRACKS AMERICANS USING GPS

Is it reasonable under the search and seizure doctrine enshrined in our constitution for our government to track Americans using GPS? If no warrant is required to track us, then every aspect of each of our personal lives is no longer private. Noting the division of the Federal Courts, it can only be hoped that the Supreme Court will side with individual liberty by requiring an independent judge’s approval before law enforcement use of GPS to track Americans. 


This NYT article gives a clear analysis of the legal issues involved:

Court Case Asks if ‘Big Brother’ Is Spelled GPS

By 

Published: September 10, 2011

In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell’s “1984” to sound an alarm. They say the Fourth Amendment’s promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.
In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”
Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”
The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.
The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.
“The Jones case requires the Supreme Court to decide whether modern technology has turned law enforcement into Big Brother, able to monitor and record every move we make outside our homes,” said Susan Freiwald, a law professor at the University of San Francisco.
The case is an appeal from a unanimous decision of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, which said last year that the government was simply seeking too much information.
“Repeated visits to a church, a gym, a bar or a bookie tell a story not told by any single visit, as does one’s not visiting any of those places in the course of a month,” wrote Judge Douglas H. Ginsburg.
He added: “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
Federal appeals courts in Chicago and San Francisco, on the other hand, have allowed the police to use GPS tracking devices without a warrant. The police are already allowed to tail cars and observe their movements without warrants, those courts said, and the devices merely allow them to do so more efficiently.
Judge Richard A. Posner, writing for a unanimous three-judge panel in the Chicago case, did caution that institutionalized mass surveillance might present a different issue.
Some judges say that world is fast approaching.
“Technology has progressed to the point where a person who wishes to partake in the social, cultural and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private,” Magistrate Judge James Orenstein of the Federal District Court in Brooklyn wrote last year.
The case to be heard by the Supreme Court arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution, given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland. Now contending that no warrant was required, the authorities tracked Mr. Jones’s travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.
The main Supreme Court precedent in the area, United States v. Knotts, is almost 30 years old. It allowed the use of a much more primitive technology, a beeper that sent a signal that grew stronger as the police drew closer and so helped them follow a car over a single 100-mile trip from Minnesota to Wisconsin.
The Supreme Court ruled that no warrant was required but warned that “twenty-four hour surveillance of any citizen of the country” using “dragnet-type law enforcement practices” may violate the Fourth Amendment.
Much of the argument in the Jones case concerns what that passage meant. Did it indicate discomfort with intense and extended scrutiny of a single suspect’s every move? Or did it apply only to mass surveillance?
In the Jones case, the government argued in a brief to the Supreme Court that the Knotts case disapproved of only “widespread searches or seizures that are conducted without individualized suspicion.”
The brief added: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring.” On the other hand, the brief said, requiring a warrant to attach a GPS device to a suspect’s car “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”
A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.
In general, though, Justice Scalia observed, “it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

MAN MURDERS 13 PEOPLE & ASKS FOR AN “AUTOPSY OF MY BRAIN” IN HIS SUICIDE NOTE–AUTOPSY REVEALS STUNNING REASON FOR THE MURDERS

When is someone responsible for criminal behavior? Should a person be punished for doing a heinous act if he has lost the ability to fully control his actions? This article is from the excellent writer, David Eagleman (and many thanks to Fred & CD for lending me a copy of his latest book, Incognito, which I highly recommend especially for his portrayal of sentencing solutions geared toward individual responsibility). This article was excerpted in the Atlantic Magazine.

The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A leading neuroscientist describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.
By DAVID EAGLEMAN

ON THE STEAMY first day of August 1966, Charles Whitman took an elevator to the top floor of the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at them at point-blank range. Then he began to fire indiscriminately from the deck at people below. The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as well. He shot pedestrians in the street and an ambulance driver who came to rescue them.
The evening before, Whitman had sat at his typewriter and composed a suicide note:

I don’t really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.

By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The story of his rampage dominated national headlines the next day. And when police went to investigate his home for clues, the story became even stranger: in the early hours of the morning on the day of the shooting, he had murdered his mother and stabbed his wife to death in her sleep.

It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this …

Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former marine, studied architectural engineering at the University of Texas, and briefly worked as a bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting spree from the University of Texas Tower, everyone wanted answers.
For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed to determine if something had changed in his brain—because he suspected it had.

I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.

Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman’s intuition about himself—that something in his brain was changing his behavior—was spot-on.

For the rest of this brilliant article from the The Atlantic Magazine, please go to the following:

FEDERAL PLEA AGREEMENT WAIVER OF APPEAL BITES THE HAND THAT CREATED IT

Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida – and in the case below the Southern District of Florida – often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government’s attempt to increase the Defendant’s sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 
http://www.ca11.uscourts.gov/opinions/ops/201015044.pdf 


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