Criminal Law Newsletter June 2017
The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles.
Michigan Attorney General Bill Schuette has created a new prosecution unit dealing with crimes involving heroin and other opioid-based drugs. The 4-person Opioid Trafficking and Interdiction Unit will focus on cases that cross both state and county lines, involve multiple major actors, and high volumes of heroin and other opioid-based drugs.
A new law in Alabama has added new sex offenses to the criminal code, including ‘revenge porn’ and ‘sextortion.’ Senate Bill 301 makes it a crime to distribute private images of a sexual nature with the intent to harass, threaten, coerce, or intimidate the depicted person who had a reasonable expectation of privacy without their consent.
Colorado has passed legislation aimed at steering more asset forfeiture cases to state courts rather than processing them through federal procedures. The new law, House Bill 17-1313, provides that state agencies cannot share proceeds with federal agencies if the total value of the seized property is under $50,000. The law also requires police agencies to report all asset forfeitures to the state and how they are used.
The Florida legislature has passed an amendment to the state’s stand your ground law that changes the burden of proof and who must bear it during pretrial hearings to evaluate a defendant’s claim of immunity based on a justifiable use of force. Senate Bill 128, signed into law by Florida Gov. Rick Scott, places the burden of proof on the state, requiring the state to overcome the immunity claim by clear and convincing evidence.
New legislation in Illinois seeks to reduce county jail crowding and allows people accused of low-level crimes to have bail reviewed quickly and perhaps lowered if they are indigent. Senate Bill SB2034 also extends the state’s RICO statute until 2022 and expands the definition of public officials for the purpose of prosecuting threats of harm against them.
Rhode Island now allows the purging of more crimes from state records. The legislation changes the definition of “first offender” to allow for expungement of as many as five misdemeanors.
In the Courts
By an 8-0 vote, the U. S. Supreme Court rejected the Ninth Circuit’s “provocation” rule, under which a police officer may be held responsible for an otherwise reasonable use of force if the officer provoked the violent confrontation and the provocation was itself an independent Fourth Amendment violation. The Court’s opinion in County of Los Angeles, Cal. v. Mendez, No. 16-369, slip op. (May 30, 2017), stated that the “rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive-force claim where one would not otherwise exist.”
In another 8-0 case, the Supreme Court held that joint and several liability is inconsistent with the Comprehensive Forfeiture Act of 1984’s text and structure, and that forfeiture is limited to "tainted property." Honeycutt v. United States, No. 16-142, slip op. (June 5, 2017). The Court concluded with a clear statement that "[f]orfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime. ... In the situation where an individual never obtained tainted property as a result of the crime, §853 does not require any forfeiture." The opinion reverses the decision of the Sixth Circuit and remands the case for further proceedings.
Through a per curiam opinion, the Supreme Court summarily reversed a Fourth Circuit decision that had granted habeas relief to a juvenile who claimed that his sentence for rape — under which he may petition for parole at the age of 60 — violated Graham v. Florida, 560 U.S. 48 (2010). Graham held “that the Eighth Amendment prohibits juvenile offenders convicted of nonhomicide offenses from being sentence to life without parole.” The Court’s opinion held in Virginia v. LeBlanc, No. 16-1177 slip op. (June 12, 2017) that “it was not objectively unreasonable for the state court to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole.”
A unanimous Supreme Court held that North Carolina’s statute forbidding registered sex offenders from accessing “commercial social networking Web sites” that permit minors to become members violates the First Amendment’s Free Speech Clause. The opinion, announced June 19 in Packingham v. North Carolina, No. 15-1194, (June 19, 2017), stated that the statute’s prohibition was “unprecedented in scope” and held that “the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”
In a 5–4 decision, the Supreme Court held thatwhen certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively "conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." The decision in McWilliams v. Dunn, No. 16-5294 (June 19, 2017), invalidated a death sentence based on a denial of the provision of mental health experts.
The Supreme Court has also granted certiorari in Carpenter v. United States, No. 16-402, (June 5, 2017), to resolve “[w]hether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.” The Sixth Circuit held that the government’s acquisition of those records was not a Fourth Amendment search. The court concluded that petitioner lacked a property interest in them (because the phone companies obtained the data in the ordinary course of business for their own purposes) and lacked a reasonable expectation of privacy in them (because they do not contain the content of calls and because they were voluntarily conveyed to a third party, see Smith v. Maryland, 442 U.S. 735 (1979)).
Other News of Interest
Oklahoma has a new Criminal Justice Division. Attorney General Mike Hunter has announced the creation of the new division which will oversee the state’s multi-county grand jury, the Oklahoma Commission on Opioid Abuse, an internet task force, and workers’ compensation, and social security fraud units.
South Dakota has formed a new task force focusing on mental health and the criminal justice system. The task force’s oversight council will monitor and report on the impact that changes in the state criminal justice system have on people suffering from mental illnesses.
Mark Neil is the Editor of Criminal Law Newsletter and may be reached at 202-326-6019. The Criminal Law Newsletter is a publication of the National Association of Attorneys General (NAAG). Any use and/or copies of this newsletter in whole or in part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail firstname.lastname@example.org.