Atty Gen Holder Calls for End to Felon Voting Restrictions

It’s called felon disenfranchisement and it affects millions of men and women in the U.S.—the removal of voting rights from someone convicted of a felony. While the process of getting those rights back after a sentence is served varies from state to state, Attorney General Eric Holder recently called on all states to repeal laws that hinder the restoration of rights. [Read more…]

Supreme Court Rules Silence Can Be Evidence of Guilt

You know that whole “right to remain silent” spiel the police give when they “Mirandize” you or read you your rights? Well it turns out you really don’t have that unequivocal right; you have the right to remain silent sometimes and only when you verbally invoke that right. Yes, in order to remain silent you may have to speak up.

The Supreme Court ruled that a suspect’s silence during pre-arrest questioning can be considered evidence of guilt.

The court was split 5-4 in the decision, with Justice Samuel Alito writing for the majority.

Silence evidence of guiltThe Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent,” Alito wrote. “Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it,” he added referring to the defendant in the case before the court.

The case in question involved Genovevo Salinas, convicted of shooting two brothers in 1992. During informal questioning and before his arrest, officers engaged Salinas, who answered most of their questions willingly. But, when they asked Salinas if the shotgun shells found at the murder scene would match his weapon, he fell silent. This, the prosecutor said at trial, was evidence of his guilt.

In his appeals, attorneys for Salinas argued that his silence was protected by the Constitution. The Supreme Court felt otherwise.

In their opinion, the Supreme Court justices said Salinas was not protected because he did not “expressly invoke the privilege against self-incrimination in response to the officer’s questions.” In other words, in order to remain silent, you have to not be silent.

In writing for the dissent, Justice Stephen Breyer framed the argument differently.

“The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself…“I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. … And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”

The High Court’s decision is an interesting one to be sure. However, one issue that cannot be argued is that Salinas did not have to answer their questions at all. Had he been savvy to his rights, he would have asked, “Am I free to leave?” and if the answer was no, demand an attorney be present for questioning.


Where Do We Stand with GPS Tracking Bill?

When you are under criminal investigation, it’s best not to start off at a disadvantage. After all, law enforcement has a plethora of tools at their disposal aimed at finding, pinning and incarcerating you. One such tool involves following you as you find your way home. [Read more…]

Domestic Drone Use: Where Does Your State Stand?

A few years ago, if a drone was mentioned in the news, it was referring to a military drone being deployed overseas. And while their impersonal and deadly use globally is certainly a serious issue, drone use has now reached our own shores. Police departments are buying the unmanned aerial vehicles and lawmakers are rushing to pass laws controlling them. So, where does your state stand in regards to drone use? [Read more…]

Lawmaker Suggests Lashings Instead of Prison

There is a serious incarceration problem in this country. Every day more and more actions become crimes and more and more people face becoming a victim of the prison system. Criminal justice experts have offered a wide range of solutions, those that would both ease spending and mitigate the damage we’ve already done by incarcerating more people than any other nation. And while some of these ideas have been controversial and debate-worthy, none have been so off the mark as the suggestion from Montana’s state representative Jerry O’Neil. [Read more…]

The Law and Filming Cops

It comes as little surprise that the laws surrounding electronic recording trail desperately behind the evolution and dispersion of recording technology. Unlike the rapid advance of innovation, the legislative process is slow, and often guided by those who neither understand nor appreciate the interaction of technology and democracy.

Nowhere has this been more evident than in the attempt to criminalize and prosecute recording of on-duty police officers. From misappropriating outmoded wiretapping laws or outright banning the recording of cops, several legislatures and police jurisdictions across the country have tried to subvert our rights as citizens to monitor law enforcement. Luckily, a number of court rulings over the past couple of years have chipped away at the perception that filming the police is illegal. Read on for a guide to the state laws that govern recording in public (including interactions with police), as well as a run-down of recent rulings.


First, it’s important to note that the lion’s share of laws concerning filming in public apply only when recording audio — most statutes fall within “wiretapping” provisions originally intended to cover recording telephone conversations, which have been extended to include all recordings of interactions.

The 50 states can be divided into two camps: “one-party” states and “all-party” states. In the 38 “one-party” states (yellow in the infographic above), the law requires the consent of one of the recorded parties in a conversation, just as under federal law. That is, if you’re involved in a conversation, including with a police officer, your consent is sufficient to openly record the interaction legally. You cannot be arrested for filming police in these 38 states, as long as you do not interfere or obstruct the work of law enforcement in the process. While the definition of “interference” remains to be clearly established in most states (in a recent Austin case, that call was up to the officers rather than a set policy), that’s a separate issue. If you’re in one of the 38 “one-party” states, the law is clear: film away! [Just do so openly — secret recording via hidden camera falls under a different set of laws entirely.] 

If you’re in the 12 “all-party” states (gray in the infographic above), the law is less straightforward. These states require the consent of all persons involved for a legal recording. However, ten of these states (all but Massachusetts and Illinois) have clear “expectation of privacy” exceptions to their laws. Under these provisions, police have no expectation of privacy while on-duty, so their consent is not legally required to openly record interactions with them. In a 2010 ruling, for instance, a Maryland judge dismissed felony charges against a man who filmed a traffic stop and posted the interaction on YouTube, writing that

Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.

 So if you’re in the ten “all-party” states with privacy expectation provisions (all but MA and IL), film away! [Again, do it openly.]

Now, Massachusetts and Illinois have some of the thorniest laws when it comes to filming cops, since their legislatures have explicitly criminalized recording law enforcement. Over the two years, though, both statutes have been challenged in court, and neither passed constitutional muster.

In April 2012, the First Circuit Court of Appeals ruled against the Boston Police Department, who arrested Simon Glik in 2007 after he filmed cops as they made an arrest. The court firmly established that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The City of Boston settled with Glik for $170,000 in damages and legal fees. According to Gizmodo, BPD now directs its officers not to arrest people for openly recording them in public.

In May 2012, the Seventh Circuit Court of Appeals similarly invalidated the Illinois statute. The court sided with the ACLU, which challenged the ban on openly recording police as unconstitutional under the First Amendment. Its ruling noted that the statute was overly broad, and required considerable revision to “avoid [unconstitutional] trampling on speech and press rights.”

So, even if you’re in Illinois or Massachusetts, film away. [Final reminder: openly!] Do be prepared to remind cops of the recent rulings–they’re still pretty fresh cuts. 

Across the country, precedent continues to cement the constitutional right of citizens to openly record their interactions with police. Recording law enforcement is a critical means of exercising civic oversight on a powerful group of public servants. The knowledge that their actions (both praiseworthy and criminal) can be widely disseminated is an important incentive for cops to serve honorably. If you’ve been harassed, intimidated or arrested for filming cops, REPORT IT. CopBlock and the ACLU have resources to help, and a nationwide network of local affiliates to support your case.

Know your rights. Protect your rights. And keep it rolling.

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Why The U.S. Should End Cash Bail

On any given day, 60 percent of the people housed in jails across the United States aren’t there because they have been found guilty of a crime, but because they are awaiting their day in court. You know the whole “innocent until proven guilty” thing—the premise that our “just” society won’t penalize anyone unless their guilt has been proven beyond a reasonable doubt? Well, that whole idea doesn’t really apply to pretrial detention. The Justice Policy Institute, a nonprofit organization that promotes sound research and analysis on the U.S. justice system in pursuit of reform, has published a new paper outlining why the U.S. bail practices should be done away with altogether. [Read more…]

Glimmers of hope from the GOP and Dem platforms

As the Republicans and Democrats trot out their presidential candidates and air their platforms, those of us concerned about privacy and net freedom have some cause for optimism. If nothing else, both party’s platforms pay lip service, at least, to the promotion of privacy. The GOP platform even mentions drones, something the Democratic platform sees fit to omit. Here are the relevant passages from each:

Republican Platform [click here to read the whole thing]

Protecting Internet Freedom

The Internet has unleashed innovation, enabled growth, and inspired freedom more rapidly and extensively than any other technological advance in human history. Its independence is its power. The Internet offers a communications system uniquely free from government intervention. We will remove regulatory barriers that protect outdated technologies and business plans from innovation and competition, while preventing legacy regulation from interfering with new and disruptive technologies such as mobile delivery of voice video data as they become crucial components of the Internet ecosystem. We will resist any effort to shift control away from the successful multi-stakeholder approach of Internet governance and toward governance by international or other intergovernmental organizations. We will ensure that personal data receives full constitutional protection from government overreach and that individuals retain the right to control the use of their data by third parties; the only way to safeguard or improve these systems is through the private sector.

We insist that there should be no regulation of political speech on the Internet. By the same token, we oppose governmental censorship of speech through the so-called Fairness Doctrine or by government enforcement of speech codes, free speech zones, or other forms of “political correctness” on campus.

Affirming “the right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures,” we support pending legislation to prevent unwarranted or unreasonable governmental intrusion through the use of aerial surveillance or flyovers on U.S. soil, with the exception of patrolling our national borders. All security measures and police actions should be viewed through the lens of the Fourth Amendment; for if we trade liberty for security, we shall have neither.


Democratic Platform [click here to read the whole thing]

President Obama is strongly committed to protecting an open Internet that fosters investment, innovation, creativity, consumer choice, and free speech, unfettered by censorship or undue violations of privacy.


Of course, neither platform could be considered grade-A as far as civil libertarians and privacy advocates are concerned. As noted above, the Democrats include no references whatsoever to President Obama’s intensification of “targeted killing” via drone strikes despite the considerable role that practice has played in his foreign policy. While the GOP advocates here for reigning in drone flyovers at home, its platform similarly remains oddly quiet on the constitutionality of “death by remote control.”

The Blues also included quite a bit of kowtowing to the MPAA and advocates of draconian patent/IP enforcement. (The MPAA has applauded both parties for their obedience to patent orthodoxy.) And for all the GOP’s railing against infringing First Amendment rights, there’s this gem on flag burning, that supreme threat to our nation’s security/intellectual purity:

The symbol of our constitutional unity, to which we all pledge allegiance, is the flag of the United States of America. By whatever legislative method is most feasible, Old Glory should be given legal protection against desecration. We condemn decisions by activist judges to deny children the opportunity to say the Pledge of Allegiance in its entirety, including “Under God,” in public schools and encourage States to promote the pledge. We condemn the actions of those who deny our children the means by which to show respect for our great country and the constitutional principles represented by our flag.

As the adage goes, actions speak louder than words scribbled out during an election year. And the fact that privacy advocates have to choose between two parties that both have less-than-stellar records as far as Internet freedom (SOPA started out as pretty bipartisan) or civil liberties (the “no” votes on NDAA were equally slim on both side of the aisle) isn’t encouraging. But these platform planks are tangible commitments that constituents can point to as expectations. They are also foundations to be built upon.

We’ll need wide support to protect the liberties we hold dear. These platform planks are glimmers of hope, however fleeting.

Know Your Rights! Arrests

Know-your-rights guide to arrests

Mental illness and police: The need for jail diversion programs

The issue of overcrowding in American prisons and jails is well known. Capacity in some correctional facilities has been exceeded to the point of violating prisoners’ constitutional rights, as in the case of the California prison system. Our punitive, incarceration-happy criminal justice system has achieved the main goal of the private prison industry: lock up as many people as possible.

As has long been evident in the national “war on drugs,” the criminal justice system overall has been slow to recognize that in many instances, treatment is not only the more humane and logical alternative to incarceration, but the financially sustainable one in the long-term.

In no cases is this point clearer than when individuals with mental illness come into contact with law enforcement and the courts.

In 2006, the Department of Justice reported that 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates showed some sign of mental illness or distress. A full quarter of inmates in State prisons had a recent diagnosis of mental illness, as did 14% of 14 Federal inmates and 21% of those held in local jails. The American Psychiatric Association estimates that the American prison and jail system currently holds over 500,000 people with mental illness, with as many as 1.5 million mentally ill people passing through the criminal justice system each year.

Even more recent census studies find incredibly high prevalence of mental illness among incarcerated people: upwards of 15 percent of male inmates and 30 percent of female inmates screened positive for serious mental illness in one 2009 study. These figures are staggering.

The National Alliance on Mental Illness puts it best in its statement on the criminalization of mental illness:

…persons who have committed offenses due to states of mind or behavior caused by a brain disorder require treatment, not punishment. 

But it doesn’t seem like that’s what they’re getting. Instead, prisons are being prescribed in place of treatment by those who mistakenly believe that incarceration is the cure-all for criminality.

There is cause for hope, though. Mental health professionals have been building relationships with law enforcement officials across the country to train cops to recognize those in mental distress and who would benefit from treatment rather than being locked up, which might exacerbate mental disorders and perpetuate a cycle of incarceration rather than rehabilitate them. These police-mental health partnerships have helped establish jail diversion programs across the country, in which mental health professionals work at police stations or even ride along with patrols to assess the mental health status of those brought in for criminal activity.

Jail diversion programs across the country have allowed hundreds of the mentally ill to become patients rather than inmates. These programs remind us that the criminal justice system is meant to address crime and pursue justice, not just lock up those who commit criminal acts. A jail diversion approach takes criminal acts as symptoms of mental illness by those in need of treatment.

Our law enforcement and courts should learn to better identify people who are guilty of nothing more than mental illness. Rather than fill prisons and strain budgets housing those who need treatment and rehabilitation, our criminal justice system should continue to build on jail diversion programs. Ours should be a system based on justice for all involved, and not solely oriented blindly toward retribution.