Category Archives: Law

Last Week Tonight on Criminal Justice

John Oliver has been on a role this summer addressing criminal justice issues on his HBO show Last Week Tonight. Below, check out his recent segments  on the bail system, mandatory minimums, and under-funding of public defenders. Also, he had excellent pieces last season on mass incarceration and the death penalty. See them all after the jump. Read Full Post…

Five Tips for Plea Negotiations

Training for Bargaining,” a new draft article by Jenny Roberts and Ronald Wright, of American University, persuasively argues that “[a]lthough public defenders may be dealt a weak hand in many cases, training focused on negotiation skills could help them get the best results from those cards.” I took away five tips from the article:

1. Stay positive. As Roberts and Wright note, research shows that “fostering a positive mood in a negotiation through tone can make the parties more creative and more likely to use negotiation strategies that seek to meet both parties’ interests.”

2. Prepare with peers and supervisors. Roberts and Wright hammer the point that many defense attorneys put much more effort into preparing for trial than for plea negotiations, even though pleas are the more common outcome. They suggest running negotiation strategy by peers or bosses, or even “mooting” negotiations.

3. Research the best alternative to a negotiated agreement, or BATNA.  On this point, Roberts and Wright emphasize the three-step approach described in the popular book, Getting to YES: Negotiating Agreement Without Giving In“brainstorming a list of actions to be taken if there is no agreement; converting the most promising into tangible alternative; and selecting the best alternative.” In particular, Roberts and Wright argue that defenders should spend more time at step two by doing more factual research about the case before negotiating. They quote an earlier, empirical study of plea negotiations by Marty Lieberman as finding that “[d]efense attorneys who interviewed prosecution witnesses and conducted extensive fact investigations would, . . . in a great majority of cases, improve the bargaining position of their clients involved in plea negotiations.” This is, perhaps, the most resource intensive recommendation.

4. Remember anchoring and make the first offer when possible. “Anchoring or focalism is a cognitive bias that describes the common human tendency to rely too heavily on the first piece of information offered (the ‘anchor’) when making decisions. ” See Anchoring, Wikipedia. Thus, the best negotiators try to set the tone in their favor by being the first to set a value, and making that valuation as favorable as possible. Roberts and Wright concede that defenders are often not in a good position to make the first move, since the prosecutor has charging discretion. Nonetheless, it’s worth keeping this concept in mind.

5. Keep data on past plea negotiations. Roberts and Wright point out that it is hard to evaluate the “going rate” for a situation if—as is common—there is little data maintained regarding plea bargaining. They suggest that offices “might collect data about offers on particular offenses from particular prosecutors to defendants with similar criminal histories.”

h/t Doug Berman @ Sentencing Law and Policy

DOJ Says: Search Warrants for Cell-Site Simulators

This week, the Department of Justice issued an important “enhanced policy for use of cell-site simulators” (also known as stingrays, triggerfish, or IMSI catchers). The document essentially admits what many have criticized about the devices—that they “force every cell phone in a region to connect to them; so if a government stingray drives past your office, it will collect the signal of your phone as well as the government’s target.” In the DOJ’s words: “When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone. When used to identify an unknown device, the cell-site simulator obtains signaling information from non-target devices in the target’s vicinity for the limited purpose of distinguishing the target device” (emphasis added).

Before the new policy, police routinely disguised use of stingrays by using them under the auspices of a “pen register” order. But scholars argue that these devices are capable of much more than pen registers, which are devices that merely record “numbers called from a particular telephone line.

Under the enhanced guidelines, agents are instructed to obtain a search warrant before using a stingray. On top of that, the search-warrant applications are to disclose certain information about the technology. This includes notifying the judge that the devices can sweep up “unique identifiers” from non-targeted phones and disrupt service to those phones.

The policy further instructs that “cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3).”

Time will tell if this enhanced policy will move the needle on the secretive nature of these devices. As EFF notes, “[u]ntil recently, law enforcement’s use of Stingrays has been shrouded in an inexplicable and indefensible level of secrecy.”

Interactive Tool for Criminal Justice Reform: The Prison Population Forecaster

Check out this interesting new feature produced by the Urban Institute to showcase the potential effect of different types of reforms for decreasing mass incarceration. The Urban Institute explains:

The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.

Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.

As promoting this feature in the New York Times, “When President Obama, the Koch Brothers, the American Civil Liberties Union and Newt Gingrich all agree on an issue, you know that something important may be happening.”



Land Banks and Land Banking

My former professor, Frank Alexander, has published the second edition of his excellent guidebook on land banking. According to the Center for Community Progress, the publication “combines research on land banks with practical guidance. It is targeted at practitioners who work with or are exploring the creation of land banks, as well as researchers seeking to understand the role of land banks within the broader fields of land use law, community development, urban policy, and urban planning.”

Additionally, the publication “includes a first-of-its-kind, at-a-glance comparison of existing state land bank statutes that examines the powers, priorities, and structures of land banks across states. The publication also includes a template for state land bank legislation.   At the local level, it features in-depth guidance on creating, structuring, operating, and sustaining a land bank – including sample administrative policies and examples of land banks in Atlanta, Georgia, Genesee County, Michigan, and Cuyahoga County, Ohio.”

You can download the publication here.

Excellent Profile of Cook County Jail as Mental Health Facility

There is an excellent article about Cook County Jail in the Atlantic this week entitled “America’s Largest Mental Hospital Is a Jail.” The article hits on some of the same points I made in this post from 2012 on the propriety of incarceration versus electronic monitoring for pretrial detainees, especially when nonviolent.

A few fascinating facts from the article:

  • Cook County Sheriff Tom Dart recently appointed a clinical psychologist as the executive director of the jail.  She “is currently the only mental health professional in charge of a major jail in the United States.”
  • “A study in 1990 found that 1 in 15 prisoners at Cook County Jail had some form of mental illness. Today, a conservative estimate is 1 in 3.”
  • The article calls the jail’s processing system “unusual, and possibly unique”: “After the normal post-bail intake procedure is complete, inmates file through a series of concrete cubicles staffed by a battalion of employees from the Cook County Health and Hospitals System. About 600 of the county hospital system’s 6,000 employees work at Cook County Jail. If the inmate is eligible, county officials can sign up him or her for CountyCare, a health insurance program for low-income Cook County residents created through the Affordable Care Act’s expansion of Medicaid. The assembly-line layout allows the county to process about 200 applications a day. Over 10,000 inmates have signed up so far.”

New Article on “Eradicating Zombie Mortgages”

Andrea Clark has posted an interesting article on SSRN entitled “Amidst the Walking Dead: Judicial and Nonjudicial Approaches for Eradicating Zombie Mortgages.” A version of the article will be published in an upcoming edition of the Emory Law Journal. Here is the current abstract:

The collapse of the residential housing market in 2007 brought with it a wave of foreclosures. Subprime borrowers, who were once elated by loans they secured from lenders, suddenly found themselves strangled by the predatory terms of their newfound loans and ultimately became unable to pay their outstanding loan balance. Amidst a growing number of residential foreclosures, lenders discovered the financial downside of foreclosing on residential properties – though this realization often surfaced after the foreclosure proceeding had commenced – and began to delay, or halt, foreclosure sales altogether. These purposeful maneuvers by lenders resulted in borrowers’ continued legal liability for a residential property, one which borrowers believed they had lost as a result of the lender’s foreclosure; in other words, a “zombie mortgage.”

This Comment analyzes the different circumstances under which lenders can foster the creation of “zombie mortgages.” Particularly, this Comment focuses on stalled and incomplete residential foreclosure sales and failures to execute the deed of sale, all which serve to maintain legal liability of the mortgaged property on a borrower. Notwithstanding a lender’s right to foreclose on residential property to satisfy the obligations that it is owed under a promissory note, this Comment argues that strategic delays in completing a foreclosure sale entitles courts and legislatures to either (1) force a lender to complete a sale or (2) divest a lender from its right to foreclose and security interest. Though some other solutions for “zombie mortgages” have been proposed, this Comment urges courts and legislatures to look outside criminal sanctions and nuisance abatement actions to develop strategies that target lenders’ security interests. Through judicial intervention to force the completion of the sale, coupled with the creation of maximum statutory time frames for the completion and execution of the sale, lenders would be forced to finish the foreclosure proceeding, or risk losing their security interests in the mortgaged property.

Chicago’s Leadership Role in Suburban America

I just started what is so far an excellent book by Elaine Lewinnek,  an associate professor of American Studies at California State University, Fullerton. The book is called “The Working Man’s Reward,” and I wanted to plug it here. It grabbed me from the introduction, which proclaims that “Chicago’s first product was real estate.” She promises to examine how the dream of homeownership—heavily shaped in many ways by people and events in Chicago—has affected the urban and suburban landscape throughout America.

Lewinnek nicely summarizes some of her ideas at the end of the book’s introduction:

[R]eal estate is a particularly interesting product, offering to produce further profits while providing shelter, class status, community, access to jobs, and investment equity. Real estate decisions can affect health, educational opportunities, physical mobility, and ultimately class mobility. Real estate matters, so much so that riots erupted over it. [See Lewinnek’s blog post about Chicago’s 1919 race riots tied to property values.] As Chicagoans sorted out what a modern city would look like—through land speculation, boosterism, two riots, and many barely conscious, often-constrained choices—they developed a city form that affects the sprawling and often racially divided spaces that all Americans have inherited.

I’m eager to dig into many parts of this book, but one that stands out at the outset is its study of how innovative local initiatives often quickly spread to other municipalities—an idea I’ve written about before. Whet Moser, interviewing Lewinnek for Chicago Magazine, paraphrased her thesis as being about how Chicago “invented” the suburbs. In that interview, she describes how some of the first zoning laws were “fire limits” that came out of the great Chicago fire. The new building rules forbade wooden houses in the city, and that forced workers to live further from their places of work. Usefully, she “reject[s] monocausal explanations” for why the Chicago model spread, arguing that it was a complex combination of different social and political forces at work at the time. She also sees lessons for the future from her study, as summarized in this part of her interview with Moser:

At the end of the book, you argue that learning from this past is a way of preparing for the future. What did you learn in researching the book that you think we should learn from?

The things that people developed on their own—the real struggles to own humble, small houses, were things that they clung to. With the institutionalization of public housing, the small houses were bulldozed and people were put into huge towers that didn’t end up being good places to live. Now we’re going back to public housing that looks more suburban, more dispersed. Part of what working-class Chicagoans invented in the late 19th century and the early 20th century is some of what we might be coming full circle to.

And some of those possibilities, too, of living in diverse spaces; being conscious of the whole range of suburbs. To me those are kind of exciting possibilities.

Lewinnek blogs at Elaine’s Blog.

Local Government as a Threat?

Earlier this month, Franklin Foer argued in The New Republic that “The Greatest Threat to Our Liberty Is Local Governments Run Amok.” It seems that the main purpose of the article is to use Ferguson as a means to challenge the idea of modern libertarian politicians that some matters of governance are best left to local governments. The problem is that the article overlooks a lot.

I want to very briefly call out one of those things: The article’s conflation of state and local governments. As I recently explained in an essay for The Urban Lawyer, states and municipalities maintain drastically different roles in our system of government. Not that these two levels of government can’t work to solve the same problems: ours is a system of polyphony. But it is a mistake to equate the legal authority of the state with that of the city.

New Edition of The Urban Lawyer

The Spring Edition of The Urban Lawyer is up on the ABA’s page for the Section of State and Local Government. My article, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, is part this edition. It is also available on SSRN.

Here’s a list of the other articles in this edition, with links to SSRN versions: