Koria Stanton is an attorney with the Maryland Criminal Defense Group, with experience representing clients on a variety of criminal offenses.
As of this fall, local D.C. lawyers will be permitted to prosecute cases of misdemeanors in federal court in order to help the federal prosecutors of the Justice Department focus their attention on cases of serious and violent crimes in an effort to lower the growing homicide rate in the District.
Mayor Muriel E. Bowser helped to develop the plan with the Justice Department to ensure that violent offenders are convicted by experienced prosecutors who will now be able to dedicate the time necessary to handle these cases rather than being bogged down by a heavy case load.
A federal prosecutor dealing with street crime may take on about 150 misdemeanor cases at a time in addition to felony cases, which leaves them little time and energy to prepare and fight each case properly.
Criticism of the current justice system in D.C. has come from both Mayor Bowser and Police Chief Cathy Lanier who believe that it was not doing enough to help prosecutors adequately try cases for street crime.
Several proposals to address the high murder rate in D.C. were rejected before reaching this compromise, including a mentorship program for troubled youths and a more robust law enforcement plan that Bowser declined to support.
Under the current plan, the city will give $1.2 million to the D.C. Attorney General Karl Racine each year to pay for eight lawyers from his office to join the U.S. Attorney and try adults accused of crimes for the first time in Washington, D.C.
As of now, Racine’s office is only permitted to prosecute cases of juveniles, leaving the heavy load of adult criminal cases to the federal prosecutors who handle local and federal misdemeanors and felonies.
The District had its prosecutors divided between local and federal branches for years, but for more than two decades has put the brunt of the workload and decision-making on the federal branch after a financial crisis under the office of Mayor Marion Barry Jr. in the ’90s.
The control of criminal convictions and sentencing was largely left up to federal authorities rather than the local officials since then.
The plan to integrate more local attorneys into federal courts to handle the misdemeanor cases was agreed upon by Bowser, Racine and U.S. Attorney Channing Phillips and was announced in a video that was live-streamed online.
All three officials seem positive about the outcome that they believe will be a solution to stopping repeat offenders of violent crimes in D.C. in order to tackle the problem of high homicide rates in the U.S. capital.
The D.C. Attorney General’s office feels that this is a step in the right direction to begin allowing the local attorneys to deal with local crimes while leaving the federal prosecutors to try the felonies and federal crimes that often require more intensive investigations.
The ongoing balance between local and federal authorities in the District continues to require adjustments in order to ensure that justice is served appropriately and that the city is able to manage itself as local authorities see fit.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Peter Tragos is a Florida personal injury attorney who represents clients in cases such as wrongful death, medical malpractice, and car accidents.
More than five years after a disturbing video first raised questions regarding the use of excessive force by D.C.’s law enforcement, the District’s legal definition of what constitutes “assaulting a police officer'” has finally been narrowed.
The video, which went viral in 2011, showed D.C. transit police roughly dragging a homeless man named Dwight Harris out of his wheelchair. The shocking footage shows two officers bodily lifting Harris out of his chair before dropping him face-first onto a metal sidewalk grate.
Harris was initially charged with assaulting a police officer, which seems patently ridiculous in light of the arrest footage. While the charges were dropped in the ensuing public outcry, under the previously broad statutory definition of assault they may have resulted in a conviction. Under the prior law, one who merely, “impedes, intimidates, or interferes with a law enforcement officer,” could be found guilty of assault. Mary Cheh’s bill, signed into law in March, greatly narrows that definition.
Harris’ videotaped arrest not only drew the public’s attention to the questionable use of force by D.C. law enforcement, but also prompted a groundbreaking joint investigation into the numerous police assault cases that are routinely prosecuted in the District. WAMU teamed with the Investigative Reporting Workshop to analyze two years of court records relating to roughly 2,000 charges of assaulting a police officer.
The final report and audio documentary, titled “Assault On Justice,” made clear that black residents were being charged disproportionately with the crime of assaulting police, often without being charged for any other underlying offense.
Although roughly half of the District’s population are black, 90% of the charges brought during the period examined by the investigation team were against black residents. Further, those accused of assaulting police required medical treatment more often than the officers themselves.
The report also compared the rate at which the charge of assaulting a police officer was brought in D.C., finding that the District uses this charge nearly four times more often than other comparably-sized urban areas.
Together, the results raised serious questions regarding the possibility that law enforcement was taking advantage of the overly broad statutory definition to cover up instances involving the unnecessary use of force. The findings were so damning that Police Chief Cathy Lanier herself urged reforming the definition of this crime, a change that has finally come to fruition.
The Police and Criminal Discovery Reform Amendment Act of 2015, first introduced by Ward 3 D.C. Councilmember Mary Cheh last year, reforms many elements of criminal procedure in the District. Notably, it removes the prior broad language found in the definition of the misdemeanor offense of assaulting a police officer, which many felt would be more appropriate to a charge of resisting arrest.
Under the previous definition of section 22-405, D.C. Code, anyone who, “without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer,” could end up spending 180 days in jail, paying a $1,000 fine, or both. The new bill narrowed this definition by creating two separate misdemeanor offenses for assaulting a police officer, while keeping the same consequences for a conviction.
Under the new law, the charge of assaulting a police officer can be brought against any person who, “knowingly assaults a police officer.” In addition, the bill added language stating that a person, “may not intentionally resist a lawful arrest.”
While both definitions seem simplistic, the clarity provided by the amended law substantially narrows the range of behaviors that could result in a misdemeanor conviction. The inclusion of the modifier in the prohibition on resisting a lawful arrest places some burden onto law enforcement to ensure that there is a valid reason for stopping with a citizen to begin with.
Under the prior language, any interference with an officer engaged “in the performance of their official duties” met the definition of assault. As the footage of Harris’ arrest shows, the realm of what some officers consider to be within their official duties may require further clarification.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Transactional Group attorney Joel Nied focuses his practice on mergers and acquisitions, corporate and securities, as well as intellectual property.
The Supreme Court is set to hear oral arguments this week that could finally end the ongoing legal battle between Apple and Samsung.
In Samsung Electronics Co Ltd v. Apple Inc, Supreme Court of the United States, No. 15-777, the Court will determine whether monetary damages Samsung has already paid to Apple appropriately reflect the harm done by its patent infringement.
Starting back in 2011, Apple successfully sued Samsung for infringing on multiple iPhone patents and copying the iPhone’s signature look.
Over the course of the last five years, the world’s two leading manufacturers have been fighting in court to determine what damages Samsung must actually pay, although a jury initially determined Apple was owed over $1 billion. Samsung has already paid Apple nearly $400 million, but is nonetheless bringing the suit to the Supreme Court to argue that those damages should be reduced.
This is the first case presenting the issue of design patents to be heard by the Supreme Court in over a decade, and the high-tech subject matter presents new wrinkles when applying legal precedent.
The last time the Court was faced with patented design elements they were examining rugs and carpets, as opposed to a handheld personal computer, telephone, and camera. Samsung argues that upholding the current damage award and requiring them to pay Apple all the profits Samsung made off iPhone look-alikes will stifle creativity in the tech market.
Media giants like Facebook and Google both contributed to Samsung’s brief, and have a vested interest in Samsung’s Android operating platform. Meanwhile Apple, which has achieved greatness in large part due to its innovative and recognizable design features, argues that the law must protect innovators, receiving support in this position from major fashion labels like Calvin Klein.
Although Apple successfully brought lawsuits against Samsung for violating its patented pinch-to-zoom and slide-to-open features, the current suit focuses on three integral design features of the iPhone itself.
The iPhone’s signature rounded edge rectangular shape, front screen bezel, and 16-icon grid were present in 11 phones previously produced by Samsung. It is indicative of how slowly the law determines these types of issues that none of the first generation phones at issue in this case have been sold in stores for years.
As technological advances lead to ever more refined design aspects like voice recognition and intuitive computing, the Supreme Court is still struggling to determine the application of patent law for infringement of some of the iPhone’s most basic physical features.
In its brief, Samsung argues that requiring it to pay to Apple all the profits from the phones that were found to have infringed on the iPhone’s trademarked look is unfair. Samsung analogizes the damage award to requiring a car manufacturer to give up all the profits for a vehicle that merely copied a trademarked cup holder design.
Although legal precedent exists for allowing patent holders to collect only those damages related to specific trademarked components, Apple argues that the central design elements at issue in the case are tantamount to copying an entire car’s design.
While Samsung has framed the issue in terms of innovation and consumer choice, at this point the suit seems to be about nothing more than money.
Although the amount Samsung owed Apple was already substantially reduced through multiple appeals, the original jury award was still less than half of the $2.75 billion initially sought by Apple.
Both companies have already invested huge sums in legal fees to date, and if Samsung convinces the Court that the prior award is unfair, the appropriate amount of damages will have to be determined in yet another trial.
Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.
Amato Sanita is a criminal attorney who covers cases ranging from embezzlement to domestic violence, and practices in both state and federal courts in Pennsylvania.
U.S. District Chief Judge Beryl A. Howell unsealed selected applications of federal law enforcement agencies to access individuals’ phone and internet records in Washington D.C. This is part of an effort instigated by journalists and watchdog groups to increase government transparency about their surveillance of private civilian communications records.
In total, Howell released select information from 235 solicitations from federal agencies that were conducting investigations in 2012 for cases that are now closed. Each application would give the federal agent conducting the investigation a record of the time, date, length and mode of communication between the person in question and their contacts.
As of 1986, a statute has been in place that allows law enforcement to solicit these communication records from phone and internet service providers. Court filings state that there has never been a policy mandating that these records be kept secret and sealed from public access. However, Chief Judge Howell’s release of these solicitations marks the first time this type of government surveillance information has been officially disclosed.
The release of these sealed files came about after a Vice News journalist, Jason Leopold, requested access to the federal applications for private phone and internet activity logs from communication service companies back in 2013. With support of the Reporters Committee for the Freedom of the Press, Leopold has succeeded in bringing about the disclosure of these applications by the U.S. District Chief Judge.
The federal agency applications were released online with the case number, the date, the judge who reviewed the solicitation, and the mode of communication (phone or internet), but they do not reveal which federal agency requested the records nor any identifying information about those involved in the case.
Law professionals suggest this could–and should–become the standard in the future so that the U.S. judicial branch end its part in supporting the longstanding culture of undisclosed surveillance by government law enforcement.
Additionally, many believe that the federal agencies have taken advantage of the 1986 statute to skirt the law and increase their surveillance without needing to get search warrants to access these private communications logs.
Rather than have to go through the full procedure of a search warrant that requires the applicant to demonstrate with proof why they suspect criminal activity, federal law enforcement agencies must simply tell the court how the communication information they apply for is relevant to their investigation.
These law enforcement agencies have also implemented their own towers that send out signals to collect communications information in the same way cell phone companies operate to offer customers service. This activity has been questioned in courts over the past couple of years as the applications for communications information between 2012 and 2013 increased by 400 percent.
As technology advances and the means of communication, especially electronic communication, has vastly expanded, it has also amplified the amount of material the law enforcement agencies can access, including social media sites like Facebook and Twitter.
Attorney Amato Sanita commented, “The release of these applications records is a major step towards increasing government transparency and protecting the rights of civilians to privacy and freedom of speech, which are being threatened by the pervasive and secretive government surveillance that has been happening behind closed doors.”
Attorney Nicholas Braswell practices criminal defense in Virginia, representing clients on cases ranging from drug charges to reckless driving.
On Tuesday, Sept. 13, the Association of Independent Schools of Greater Washington filed a lawsuit against the District of Columbia and the D.C. Office of the State Superintendent of Education (OSSE). They did this because the OSSE has policies that allow the random drug testing of preschool teachers in private schools. The Association, which is a nonprofit organization that consists of 75 regional private schools, believes that the OSSE’s drug testing policies are in direct violation of the Fourth Amendment and are violating the preschool teacher’s right to privacy.
The OSSE has directly acknowledged that they do in fact call for the random drug testing of preschool teachers at private schools. They maintain that this is an attempt to keep the children of D.C. safe and that they are only doing their jobs by enforcing city policies.
The city law is called the Child and Youth, Safety and Health Omnibus Amendment Act of 2004 (CYSHA). It requires private organizations licensed by the city government to mandate drug and alcohol testing for people who work in “safety-sensitive positions.” The OSSE clearly believes that preschool teachers fall under the category of people who work in “safety-sensitive positions.” However, many private school organizations and civil liberty groups say that the OSSE’s interpretation of the law is not as clear cut as they would like to think.
There was a decision in a similar case where the judge ruled that the OSSE’s drug testing procedures were problematic and needed to be revised. The attorneys representing the private schools made the argument in the suit that the OSSE has made no attempts to change its policies since the last decision.
The rule also exposes a few hypocritical stances taken by the city government. For instance, even though the use of marijuana is legal in the District, the city can still ban its employees from using the substance. The city also does not force public school teachers or teachers at charter schools to endure random drug testing like they do at private schools.
Civil liberty proponents also believe that the drug and alcohol testing mandate has no connection to actual on-the-job impairment and because of this fact it violates the employee’s rights without good cause. They also assert that the costs of running these programs puts private preschools at a disadvantage when they try and compete with public and charter schools.
It appears that the city has not gotten the message that the war on drugs is considered to be a huge failure. Normal drug testing for a teaching position would work just fine. If they were serious about the safety of their students, then they would have random drug testing at public and charter preschools as well. There is also no evidence that cannabis users make worse teachers than non-cannabis users. The city apparently seems to be applying age-old beliefs in a modern world and that is most certainly a recipe for disaster.
Personal injury attorney Chad McCoy practices law in Kentucky, and focuses on cases ranging from medical malpractice to workers compensation.
It’s called the “Neighborhood and Victims Rights Amendment Act of 2009.” On the surface, this District law sounds like a good thing. However, it is a legal title that is entirely misleading and is an example of a good law run astray. Lately it has been used by the attorney general’s office to evict a grand-mother, a young family with an 8-year-old son and a Ward 5 advisory neighborhood commissioner. Each is among the innocents who have been ensnared by the broad application of the Act without adequate investigation or discretion.
Enacted in 1999 as the “Drug or Prostitution Related Abatement Act” and renewed a decade later, the law advanced the city’s authority to clear out certain houses that were used for illicit activity. Properties taken over by drug dealers and other criminals had become a blight on Washington’s landscape thirty years ago. At the time of its inception, the crack epidemic, guns, and violent crimes were driving down property values, displacing law-abiding residents, and generally costing the city too much in policing expense.
Like many laws, the Abatement Act is one that may have been drafted with a good purpose, but has lost the original intent. When innocent men, women, and children are driven from their homes without any recourse, there has been a systematic government breakdown and a miscarriage of justice. A legal process that was at one time enacted to evict drug dealers is now being applied without regard for basic civil, constitutional, or human rights.
The nuisance abatement law is worded to give authorities wide-latitude to take action in instances of suspected drug activity. It can be applied to any property where a warrant for drugs, weapons, or prostitution may have been served, or a property that has received repeated complaints from neighbors. Once police investigate, a report and the property address are forwarded to the attorney general’s office for additional action. The property owner or landlord receives a formal notice of the alleged nuisance from the attorney general — accompanied in most instances by pamphlets detailing the eviction procedure.
Additionally, the law strips away the right to a jury trial for those facing an allegation of nuisance activity and it does not require authorities to show any irreparable harm to obtain a preliminary injunction. In some cases, residents have ten days or less to vacate homes where they have lived for years. It is these very abuses that prompted the Legal Aid Society of the District of Columbia to speak out against the law on its renewal.
Citing constitutional standards established by Pernell v. Southall Realty, a 1974 United States Supreme Court Case which originated in Washington, D.C. courts, the Legal Aid Society objected to provisions of the law that would leave residents disadvantaged. There are also concerns for displaced tenants who cannot afford counsel and landlords who are pressured by the attorney general’s office to pursue evictions.
While the government highlights the successes of the law — busting major drug operations in the course of evictions — there appear to be unfortunate and unintended collateral consequences. Tenants often do not know they have a right to fight eviction or challenge allegations of nuisance. Misconceptions may be attributable to the Legal Aid Society’s concern about access to legal representation.
In one case, a family’s home was declared a nuisance property because police conducted a raid and discovered three cigarettes containing a “leafy green substance.” No weapons were discovered during the raid and no one was charged with any crime. None-the-less the attorney general’s office decided the house was a “drug-related nuisance” and the family was forced from their home of four years.
The city issues approximately 150 nuisance abatement letters each year. The letters include a nuisance determination at one property where a gram of marijuana was discovered – a legal amount to possess in the city now. In another case, a disabled senior citizen was slated for eviction after his home was targeted because of the smell of marijuana. The city admitted error in that instance, but the damage had been done for the 61-year-old resident who moved of his own accord.
In a city where small amounts of marijuana are now legal, the mere “smell of pot” should not be sufficient to warrant probable cause for raids that can lead to evictions for entire families. It is because of a breakdown in the application of the law that innocent residents are becoming the victims that the 2009 Act is supposed to protect.
Police and prosecutorial resources tax government budgets — especially when laws are applied without discretion and awry of their intended targets. Somewhere between the police investigating an odor and a family being evicted, there needs to be accountability. Not every case of a pill on the floor or a smell under the door warrants one of the attorney general’s form letters with attached eviction instructions as a pressure tactic.
The nuisance law falls under the purview of a group of five lawyers in the attorney general’s Neighborhood and Victim Services Section. Each case is supposed to be reviewed to determine if the nuisance law applies. At some point, cleaning house should not mean evicting a family with an 8-year-old child over a one-time discovery of a “leafy green substance.” Instead it should mean cracking down on government officials who act like they have consumed said substance.
Maryland accident attorney John Yannone covers cases ranging from medical malpractice to traumatic brain injury.
Three groups have called out Washington D.C. regulators for allegedly knowing since 1996 that fecal bacteria levels in its waterways are too high for safe recreational use. Anacostia Riverkeeper along with Kingman Park Civic Association and the Potomac Riverkeeper Network are taking legal action against federal regulators in order to raise awareness and enforce safety measures for unsafe water.
Heavy rain aggravates the issue, causing the levels of fecal bacteria, particularly E. coli, in the water to spike, which elevates the risk of illness for anyone who kayaks, wades, canoes or swims in the Potomac and Anacostia Rivers or waterways like Rock Creek. A person doing any sort of water activities could contract a nasty virus if water so much as splashes them in the face.
During these spikes in fecal bacteria levels, people are at risk of getting sick from contact with water that fails to meet D.C.’s health standards. According to the complaint filed by the plaintiffs, people who are exposed even briefly to the contaminated water can suffer health complications like skin infections, stomach flu and ear and eye infections. Heavy rains and other precipitation carries leakage of flushed human waste from offices and homes from the sewer outfalls directly into streams that end up in the Potomac River, Anacostia River and Rock Creek waterways.
The municipal separate storm sewer systems also pollute the rivers with untreated animal waste from pets and other contaminants. The Blue Plains water-treatment plant, the largest sewage plant in the world, was also cited by environmentalists as a source of overflow contamination of untreated sewage water.
In the 1990s, a lawsuit forced Washington D.C. to establish standards of water-quality that included a total maximum daily load for E. coli bacteria in the water, but by 2004, the reports were only taking into account the annual average, not daily loads.
The lack of specificity is problematic because the Environmental Protection Agency (EPA) has stated that even brief peaks in fecal bacteria levels can cause illness so that an hour or so on the water significantly raises the chances of a person getting sick. These spikes will not be accounted for in 30-day averages and certainly not yearly averages.
An attorney from Earthjustice Washington, Jennifer Chavez, is representing the plaintiffs in this case and has repeated the groups’ rhetoric that it is unfair to residents and visitors to D.C. who want to do water recreational activities but may be exposed to high levels of fecal bacteria in the water. The EPA has not commented on the case, though the groups have demanded that they create new water-quality standards in a year.
The Chesapeake Bay Foundation has issued similar warnings to those who engage in recreational activities in the watershed, stating that people should not have contact with the water for two days after a heavy rain. They found water samples in Baltimore County in early August with bacteria levels 400 times over the safety standards for safe recreational use.
Until measures are taken to improve the water-quality standards in D.C., it may be safest to avoid water activities during high-risk times, and of course, to check back with the watershed organizations to stay up to date on contamination levels before heading out for a day on the water.
Thomas Soldan is a criminal defense and personal injury attorney who practices primarily in Northern Virginia, where he was born.
It is perhaps the most fundamental of the rights bestowed on every citizen by the U.S. Constitution. It is the right to vote. When anyone corrupts and influences that process with financial contributions or by any other means, it is not a victimless crime. Manipulation and corruption of the electoral process deprives every citizen of a basic right and undermines the public trust and the integrity of free elections.
Perhaps that’s what U.S. District Judge Colleen Kollar-Kotelly was thinking when she ignored the government’s sentence recommendation for a District businessman on Monday. Jeffrey Thompson was convicted of campaign finance violations after pleading guilty in March 2014.
At this week’s sentencing hearing, Judge Kollar-Kotelly ordered Thompson to serve three months in prison followed by three months of house arrest and three years of probation. The sentence also includes a $10,000 fine. The government had asked only for home confinement despite Thompson being the leader and organizer of what the court called a conspiracy to rig elections.
Thompson, described as a self-made business mogul and American success story by the prosecutor in the case, founded an accounting firm and owned a managed-care company that contracted with the District for more than $300 million annually. It was his success and the need to preserve business that may have led to his downfall. Thompson admitted by his guilty plea to creating a shadow campaign to help a District mayor get elected and subsequently creating a scandal that drove him from office.
In 2010, Thompson set up a $650,000 slush fund to help Vincent C. Gray (D) defeat then-mayor Adrian Fenty (D). Gray denied any wrongdoing and was never charged in the investigation despite six associates — some of the many fingered by Thompson in his eager cooperation with the prosecution — already convicted or serving prison sentences. Gray lost a re-election bid against Mayor Muriel Bowser (D), but has since staged a political comeback this year by winning a Democratic primary for a seat as Ward 7 Representative to the D.C. Council.
Thompson’s sentencing marks what may be the final chapter in the long-running saga of illegal campaign donations and high-level corruption in the District. However, it remains to be seen whether the case will close the books on election fraud in the future.
As the seat of democracy for the modern free world, city leaders should be especially vigilant to investigate any additional scandals no matter how minor the infraction. That this case involved bribery, bank fraud, and illegal campaign donations made it sensational in the media, but shameful for the city.
A key point in the case was that according to prosecutors, it was concern over his government contracts that motivated Thompson to interfere with city elections. Thompson’s clouded motives may be difficult to distinguish from an unregulated corporate or private donation during a national election. While the former resulted in a crime in Washington, D.C., the latter is legal and a matter of free speech according to the United States Supreme Court.
In the past decade, the Court has ruled on a series of cases dealing with campaign contributions on the federal level. The trickle-down effect has led to many changes in national and state campaign finance laws. In each instance, the majority Justices have eroded long-standing campaign-finance regulations intended to maintain the integrity of the electoral process. In 2010, the Court decided a landmark case on corporate spending in Citizens United v. FEC, and more recently in 2014, opened the door for private donors to make unregulated contributions in McCutcheon v. FEC.
The one thing the Court did address in McCutcheon was that political contributions may only be restricted to target quid pro quo corruption – contemplating the likelihood of a case like Thompson’s where a donor endeavors to accomplish some manipulation for his gain. There may be a fine line between a bribe and a donation, and one that is sometimes difficult to distinguish, but for the good of electoral integrity, it is a line that must be guarded with close scrutiny.
Virginia attorney Matthew Crowley focuses his efforts on defending individuals who are facing felonies, misdemeanors, as well as serious traffic offenses across Northern Virginia.
In a stunning move that has sent private prison stocks tumbling on Wall Street, the U.S. Justice Department announced Thursday that it will be phasing out the use of privately owned prisons. Thirteen contracts will be allowed to expire by 2021. With the news of the revised policy stance, Corrections Corp. of America stock plummeted 50 percent on the day of the announcement, signaling a new chapter in the era of mass incarceration by the United States’ prison industrial complex.
The decision by the feds will not affect individual states, but the move comes less than six months after Mayor Muriel Bowser made a similar announcement about the District’s reliance on private prisons. In March, Bowser said that the District would not renew its contract with CCA in January 2017. The District has been locked into a 20-year contract with CCA since 1997. However, once the contract expires five months, the Correctional Treatment Facility at 19th and D Streets, SE, will revert to Washington D.C. Department of Corrections administration.
With Thursday’s Department of Justice announcement, within five years, no prisoner sentenced in the District will be held in a private facility. That’s good news for families and friends of incarcerated men and women. One of the reasons for the DOJ policy change is an Inspector General’s report that found private prisons have a higher rate of violent incidents compared to government-run facilities. There was also more rule breaking in private prisons by staff and prisoners alike. While no prison is entirely safe, government institutions are typically run more effectively in terms of results and costs.
The move by the DOJ comes close to the end of President Barack Obama’s term; during a national push for criminal justice reforms; and on the heels of a hotly contested Democratic presidential primary race. During his campaign, Sen. Bernie Sanders promised to end the “private, for-profit prison racket.” He sponsored a bill to terminate use of private prisons because the criminal justice system could not be fixed while corporations benefit from mass incarceration of citizens.
Private prisons house nearly 25,000 federal inmates across the country, or roughly 10 percent of the federal prison population. According to ACLU statistics, the percentage is lower for state inmates, at about 6%, but the total number of prisoners is higher since there are more state than federal inmates. The actual number could be as high as 125,000 or more state prisoners in private custody.
In addition to problems with frequent violence and rule infractions — on both the part of prisoners and staff at private prisons – found by the Justice Department, there is another downside to the corrections industry. Private prison conditions are often the target of multiple long-running legal dramas because of Eighth Amendment cruel and unusual punishment lawsuits and other civil rights violations.
Among the many claims brought by prisoners against CCA and other private companies, health care concerns rank among the most frequent. In the privatization of prisons, cost cutting is a major concern for companies to increase the profit margin. Service cuts, including health care, often leave prisoners at risk. Even the U.S. Supreme Court noted in Richardson v. McKnight, a 1997 case focusing on private prisons, that private firms seek to maximize profits, which ultimately means minimizing costs.
Additionally, in the Richardson dissent, Justice Antonin Scalia touched on the issue of higher violence rates in private prisons vis-à-vis a cost issue. Therein, Scalia intimated that discipline may be down-played to reduce lawsuits by stating, “the more cautious the prison guards, the fewer the lawsuits, the higher the profits.” If guards do look the other way and do not impose strict disciplinary standards, then the prison becomes a breeding ground for chaos and violence.
Private prisons have no place in a society trying to combat decades of mass incarceration. A commercial facility built with the sole purpose of warehousing men, women, and in some cases, children, defeats every reform effort. At one time, warehouses were a sign of progress and productivity in America, a sign that something was being manufactured, marketed, and contributing to the economy. Perhaps private institutions, instead of being shuttered when the DOJ contracts expire, can be rehabilitated as institutions of America’s innovation and more positive first-nation attributes.
Attorney Karin Riley Porter practices in Virginia and is a former prosecutor and judicial clerk. She covers cases ranging from traffic and serious misdemeanors to felony offenses.
Although D.C.’s Department of Public Works maintains that parking and traffic enforcement officers do not have monthly ticket quotas, residents of the District have ample reason to believe otherwise. The tiny District writes an inordinately large number of traffic tickets compared to all other metropolitan cities.
Although these citations are ostensibly meant to help ease the flow of traffic, you would be hard pressed to find a DC local who believes that the techniques employed by parking enforcement help abate the District’s infamous rush-hour gridlock.
Inconsistent enforcement of traffic laws, complex parking rules and confusion among the city employees who have the power to issue tickets have long plagued DC’s residents and visitors alike. Meanwhile, the city government continues to collect huge amounts of revenue from the infractions.
The unique dynamic of traffic in the District makes it easy to find a driver violating one of the many applicable laws or regulations at any given time of day. DC’s population nearly doubles every day as commuters, visitors and tourists flood the Capitol.
All of these people have places to be and strict schedules to keep, and the vast majority are driving in private vehicles. Parking is hard to find and posted restrictions about who can park when and where are often vague or overly complex.
D.C. has nearly double the number of traffic laws than does New York City, many of which are obscure and are seemingly only enforced at random. When even long-term residents are often amazed to learn the reason they have been cited for a traffic violation, out-of-towners don’t stand a chance.
Tickets are doled out in the District by employees of both the Department of Public Works and the District Department of Transportation, as well as, of course, police officers. The city gave out about 1.6 million tickets in the last fiscal year, amounting to nearly $90 million dollars. Although it is no surprise that offending drivers often feel they have been targeted unfairly, D.C. is notorious for inconsistent ticketing.
A 2014 report by the D.C. Inspector General determined that many tickets given pursuant to ‘catches’ by the District’s numerous speed-cameras were the result of arbitrary decisions by employees reviewing the footage.
Parking laws also often seem to be inconsistently enforced, lending credence to the widespread suspicion that traffic enforcement officers are expected to meet certain monthly quotas. There is no incentive under the current enforcement system for city employees to ensure that a motorist is knowingly violating the law before issuing a citation.
Although the Department of Public Works has repeatedly denied that a quota system exists, it is undeniable that the current system is strongly biased toward city. Anyone who has been ticketed is presumed to have been in violation of the law at the time they received the citation, regardless of whether proof of that violation exists.
Motorists who return to their vehicle to find a ticket awaiting them are often helpless to rebut their supposed infraction. Visitors from other states are even less likely to oppose a ticket than are locals, many of whom do not feel fighting the ticket is worth the time or money required, regardless of their innocence of the charge.
The 2014 Inspector General report noted that this “guilty unless proven innocent” logic applies even when photographic evidence of the supposed infraction exists, such as when tickets were issued as a result of footage captured by automated traffic cameras. The Inspector General noted that tickets were often sent to registered owners of vehicles different from those that had been ‘caught in the act’ on film.
It is the city’s policy to presume that the owner switched out the plates, rather than admitting they may in fact not have been illegally driving some strange car. When a ticketed motorist is presumed to have done whatever wrong they were ticketed for, proving otherwise is often impossible.
The damning 2014 report contained many rules and standards that the Inspector General suggested should be implemented by the local DC government to shift the onus of proving traffic violations back to the city, where it should rightfully be. Two years later, traffic violations are still big city business, and it does not appear any of those suggestions have been adopted.
City employees continue to wield the power to cite unsuspecting drivers for violating laws they may not be aware of. When these employees are imbued by the city with the discretion to decide whether or not that driver deserves a warning before the citation is issued, it is clear who bears the burden.
Criminal defense attorney Kush Arora practices primarily in the Maryland District and Circuit Courts, covering cases such as assault, DUI, burglary, and gun crimes.
In a strange twist in a cold case that has once again captured the attention of the nation, prosecutors last week dropped all charges against the man once convicted of murdering Chandra Levy. Levy was a young, beautiful intern who disappeared in DC in early 2001 while romantically involved with a prominent married Congressman.
The investigation into her murder fueled countless rumors, while unearthing frustratingly few answers about her death.
Ingmar Guandique, an illegal immigrant from El Salvador, has been imprisoned for Levy’s murder for the past five years. Last year, based on questions relating to the evidence originally presented against him, his conviction was overturned. His retrial was set to begin in just a few short weeks.
Levy, a California native, was only 24 years old when she began her internship at the Federal Bureau of Prisons. She disappeared during her morning jog in the District’s Rock Creek Park in early 2001. Her body was not recovered until late 2002.
The investigation into her disappearance revealed that Levy was having an affair with then-congressman Gary Condit, a revelation that prompted a media sensation. Although Condit was extensively questioned by law enforcement, he was eventually cleared as a suspect in Levy’s death.
Nonetheless, with no evidence of the circumstances surrounding her death recovered by police, coverage surrounding the investigation was based almost entirely on speculation. The media focused on Condit’s apparent motive to silence Levy, and many felt he used his political connections to escape police scrutiny.
In 2010, nearly a decade after Levy’s disappearance, Guandique, an illegal immigrant with a history of violence toward women, was tried and convicted of Levy’s murder. During the trial, Guandique’s cellmate, Armando Morales, testified that Guandique had confided to him that he had killed Levy. Morales’ convincing testimony was central to the prosecution’s case, and resulted in Guandique receiving a 60-year sentence.
However, the supposed jailhouse confession was never corroborated, and Guandique has always maintained his innocence. Guandique’s defense team later discovered that Morales obtained substantial concessions in exchange for his testimony, leading them to seek a retrial.
Earlier this month, as the prosecution team was preparing for Guandique’s retrial, illegally recorded conversations casting serious doubt on the credibility of their star witness emerged. Without Morales the prosecution cannot make its case. Although questions regarding Morales’ motives were part of the reason Guandique’s original conviction was overturned, the new evidence completely destroys his credibility.
Unaware that he was being recorded, Morales admitted on tape that he lied about Guandique’s confession in a conversation with Babs Proller, an actress he met earlier this year.
Proller claims she recorded the damning conversations in order to protect herself, as Morales had previously made threatening comments about her ex-husband. She met Morales shortly after his release from prison, and the two spoke at length over the phone – she says he told her his life story over the course of a few days.
After Morales told Proller during a recorded conversation that he had lied about Guandique’s confession as part of a deal with prosecutors to improve his sentence, Proller forwarded the recording to Levy’s parents. While the defense team initially declined to listen to the tapes, as they were recorded illegally and were thus inadmissible in court, the prosecution apparently felt otherwise.
Regardless of their admissibility, the recorded conversations completely undermine the only evidence linking Guandique to Levy’s murder – Morales’ testimony. In light of these ‘unforeseen developments,’ the U.S. Attorney’s Office has dropped the charges against Guandique entirely.
While Levy’s parents have understandably mixed feelings about the appearance of this latest surprise informant in their daughter’s case, Proller’s attorney says Proller sent the tapes because she felt it was the right thing to do. The unexpected revelation sets the murder investigation back to square one, with no new leads. The prosecution continues to investigate Levy’s murder, and has stated that Condit is not a suspect at this time.
However, substantial portions of the defense’s pretrial pleadings focused on Condit’s motive, opportunity, and sexual appetites, indicating there may be more new developments waiting to unfold. As the media gears up for another true crime sensation, Condit will likely once again find himself under intense scrutiny. The search for Levy’s killer continues.
Farral Haber is a criminal lawyer who defends clients in Washington, D.C. She is licensed to practice in D.C., Virginia, and Florida.
Throughout the United States, many local and state courts hold felony defendants in jail if they cannot make the bail payment before their trial–but not in Washington D.C.
In the District of Columbia, the vast majority of people who are arrested and charged with an offense are released after being held overnight and trusted to return for their next court date.
According to the Washington Post, in the United States, when arrestees cannot pay their bail and must stay in jail until trial, it costs taxpayers about $75 a day to hold them. In contrast, it costs taxpayers about $7 a day to monitor a person who is released and awaiting trial.
Since 1991, D.C. courts have operated this way. Those who are considered dangerous to public safety are held, but the vast majority of people are released before their trials and are not arrested again in that time period. A small percentage of people are re-arrested and in only rare circumstances is it for a violent crime.
The District is part of the movement in putting an end to the bail-bond business that has been the status quo in the country, despite Attorney General Robert F. Kennedy’s 1964 condemnation of a system where wealth dictates whether a person is released pending trial.
Class action lawsuits have been filed in several states and the New Jersey and Colorado legislatures have also put forth efforts to reduce the use of bonds as a form of release from jail.
There are recent high profile cases that have drawn attention to bail-setting practices in the criminal-justice system. For example, bail was set at $500,000 for a Baltimore protester after the death of Freddie Gray. In a similar vein, a teenager was held at Riker’s Island on robbery charges for three years before the charges were dropped. Two years after his release, he took his own life.
D.C. Superior Court Judge Truman Morrison is a supporter of releasing those charged before trial without setting financial barriers as a condition of release.
Proponents of removing financial barriers as a condition of release argue it is unfair to base pre-trial release on the ability to pay, instead of the dangerousness of the crime and other factors.
In a situation where two people are each charged with marijuana possession and both have a money bond set as a condition of release, it is unfair if one is able to pay bail and await his or her trial at home, while the other is unable to pay and therefore, must sit in prison until trial.
Not only is it unfair, but it may be unconstitutional. The Justice Department has claimed that assigning bail to defendants without any investigation into the person’s financial background is a violation of the 14th Amendment.
Skeptics of transitioning to a risk-based system argue that it may be difficult to replicate D.C.’s system since the federal government funds the pre-trial agency who oversees monitoring defendants who are released pending trial.
In D.C. pre-trial agency employees conduct interviews with people charged with a crime before they see the judge with questions about personal and family life, employment and substance use. The court will look at the interviews and weigh several factors to determine if the defendant is a threat to public safety.
This system operates around the clock so the court has the necessary information to determine whether or not the person can be released. If a person is going to be released, the court will also determine if release conditions are necessary, such as submitting to drug tests, weekly check-ins, staying away from a person or place, GPS monitoring, or house arrest.
There are cases in which defendants released in D.C. have turned around and committed violent crimes. For example, a man on pretrial release for a gun charge was under GPS monitoring when he fatally shot a person after leaving the GPS at home, attached to his prosthetic leg. Another recent example is of a man on pretrial release for an assault on a police officer charge, who then fatally stabbed a person on the Metro.
The head of pretrial services in the District, Cliff Keenan, accepts responsibility when the system fails, but asserts that the system works the vast majority of the time in detaining dangerous people.
Overall, the courts in Washington D.C. may be paving the way for the future of the U.S. criminal-justice system, which many believe is in dire need of an overhaul to stop punishing the poor with a bail system that relies on financial ability.
D.C. attorney Shawn Sukumar represents clients who have been charged with criminal offenses such as driving under the influence and theft.
Senator Mike Lee (R-UT) introduced new legislation last week seeking to overhaul occupational licensing requirements in the District. The “Alternatives to Licensing that Lower Obstacles to Work,” or ALLOW Act, would require the D.C. Council to establish multiple subcommittees to ensure that locally imposed licensing requirements to enter into a given occupational field are the “least restrictive regulations necessary to protect consumers.”
While licensing requirements ostensibly protect consumers by ensuring that those providing services have attained a certain educational level or have attended required safety training, some occupational licensing schemes make entry into a given career field extremely difficult for newcomers.
Senator Lee believes that occupational licensing frameworks in place across the United States are often less focused on consumer safety than they are with protecting a given field from competition. He argues that expensive and time-consuming licensing requirements merely serve as a barrier to entry for those seeking to join the workforce, with little to no benefits passed on to consumers.
The ALLOW Act seeks to use Congress’ Article I authority over federal enclaves to restructure the licensing requirements in D.C., in the hopes that it will serve as a model that other states might adopt in the future. Local leaders strongly object to this latest attempt to use the District as a guinea pig to test out new government policies.
While the ALLOW Act does not specifically target any of D.C.’s current licensing requirements, in essence it puts the right to work in certain regulated professions on par with certain fundamental constitutional rights.
By requiring the D.C. Council to create subcommittees that will review licensing requirements to ensure they are the “least restrictive regulations necessary to protect consumers,” the bill essentially requires the Council to conduct a heightened scrutiny analysis. In addition, the bill makes an affirmative defense available to workers who feel they had been ‘substantially burdened’ by occupational regulations.
In cases where individuals are facing legal action as a result of violating licensing requirements, the availability of this affirmative defense shifts the burden of proof to the government, which must then show that the requirements serve an “important government interest” and are the “least restrictive means” of furthering that interest. This is a fairly high standard that is typically reserved for the governmental restriction of fundamental rights, such as freedom of speech.
While the D.C. Council has recently considered reforming certain licensing requirements, local leaders nonetheless object to Congress’ repeated attempts to use the District to test new policies and regulations.
Opponents of the Act feel that these types of distinctly local issues should be the left up to local leaders, not only because they are better informed about the consequences of policy changes, but because they can actually be held accountable by the residents affected.
Del. Eleanor Holmes Norton was quick to point out Senator Lee’s hypocrisy in his seeking to remove what is a ‘quintessentially local decision’ from the province of the local governing body, as Lee has championed the rights of local government independence in the past. While the Congresswoman admitted that a review of D.C.’s occupational licensing requirements “could be timely and beneficial,” she invited the Senator to work directly with local leaders to address what he feels to be “insurmountable barriers to employment.”
Oleg Fastovsky is an attorney practicing out of central Maryland. He represents clients who have been charged with DUI and other criminal offenses.
On July 1, 2016, the insurance company Allstate issued a report about the cities who have the best and worst records when it comes to safe driving. And the Washington, D.C., area, along with other surrounding areas, was ranked one of the worst in the nation. Drivers in the district area are involved in a crash every 4.9 years. That is over 106 percent higher than the national average.
And people in the Alexandria and Baltimore City areas do not fare any better. People in the city of Baltimore are involved in a crash every 4.7 years while Alexandria, Virginia, drivers are involved in a crash every 6.7 years. This was an alarming statistic for people in these areas; not just because the report was given before the Fourth of July when car accidents are at a yearly high, but because driving is an extremely common and personal practice for most people.
These statistics bring forth a single word that is commonly used among curious people. And that word is why. Why are drivers in the area of Washington D.C. subject to such high rates of driving accidents? And why, in the age of no drunk-driving and driver safety, are people not taking better care of themselves when they are behind a vehicle?
Answers to these questions are always vast and vary in response, but most answers are connected to two simple truths: 1) Americans are overworked and are not taking proper care of themselves and 2) Americans are distracted and overcome by mobile devices. These answers pop up over and over again in everyday and professional responses when dealing with the topic of unsafe driving.
When it comes to being overworked, many people look to the forty-hour work week as the culprit of the crime. However, with the increasing range and potential of technology, workers are both expected and force themselves to work around the clock in order to meet demands. These conditions create times where people are forced to work on their phones in the car, which we all know can lead to a higher rate of accidents.
And with increasing work-time, people are more tired than ever. When you have people who are exhausted and sleep deprived operating a moving vehicle, it only makes sense that more accidents would occur in the process.
As we all know, mobile phones not only cause us to work more, but cause us to become dependent on their function. We have seen it at the table. When you should be having a decent conversation, everyone is looking downward at their cellular device. This type of reliance on cellphones does not magically disappear when we get behind the wheel.
The human’s need to be on their cellphone is still just as strong and powerful. It is so powerful that distracted driving is now just as deadly as drunk driving according to statistics seen by the Economist. And safety measures like talking on a headset are quickly becoming debunked by scientists.
Researchers at Carnegie Mellon University “found that merely listening to somebody speak on the phone led to a 37% decrease in activity in the parietal lobe, where spatial tasks are processed.” This finding clearly debunks the myth that talking on a Bluetooth device is in any way safer than what should be permitted on the road.
And laws surrounding the issue of distracted driving are both rare and tricky to enforce. In states that do have distracted driving laws, officers must view a person texting in their car for multiple seconds before moving to pull them over and issue a fine. That is extremely difficult to do when you are dealing with moving vehicles.
The only thing people can agree upon is that social conscience is the best medicine when it comes to dealing with this problem. Distracted driving must be seen as uncool and unnecessary by the people in this country. This social attitude along with expanding laws is the only foreseeable answer to the problem of distracted driving in Washington, D.C., and cities around the nation.
Steve Duckett is a criminal defense attorney in Northern Virginia who represents clients charged with drug offenses as well as other criminal matters.
In the epic tug-of-war between federal and state comity, there is a third party: D.C.
While the District is the seat of the federal government, it is not a federal entity. However, it is also not a state and having to answer to federal oversight — like a child sibling watched by a big brother – can lead to conflict between federal and city-state powers.
The latest controversy between federal government and city surrounds Washington’s 2015 ballot initiative on marijuana legalization. The initiative passed with a resounding 64 percent majority, but the city faces backlash from the federal government over the autonomous law.
The problem facing the District dates back as far as the U.S. Constitution itself. In 1788, James Madison, writing for Federalist No. 43, argued against an autonomous capital city. Madison wrote of the “indispensable necessity of complete authority” over the District, and ever since the city’s charter has always been an ambiguous mix of city-state and federal authorities.
In the past two centuries, efforts have been made to grant the residents of the District wider latitude and independence from Congressional oversight and supervision. Article 1, Section 8 of the U.S. Constitution placed the unincorporated District under Congressional authority. Almost one hundred years later, legislation created a single municipal government.
When it was passed in 1973, the District of Columbia Home Rule Act again began chipping away at the power that Congress held over the city. Home rule advanced only slightly, with the passage of the act, but it did allow the city council to pass autonomous legislation with Congressional review. Ironically, the federal government forbids the city from passing an unbalanced local budget. Additionally, Congress continues to control Washington, D.C.’s fiscal independence.
In terms of rights, District residents were unable to vote in presidential elections until 1963. We were unable to elect a governing council until the 1970s. And for decades, the city has been fighting to have representation in the House of Representatives and its own constitution. These attempts have both failed, but last year, District residents did win the battle over marijuana use.
Under the 2015 marijuana law, D.C. residents are permitted to keep up to two ounces of marijuana in their home for private use. It is a law endorsed by the city and its population. None-the-less, because of the convoluted limitations on home rule, the federal government — namely the Republican led House of Representatives — bars the city from taxing or regulating the drug.
In other words, the city passed a popular autonomous law, but cannot exercise that law because of a Congressional stranglehold on the city’s budget. Now, in an attempt to wrest authority from Congress, city officials are defining taxation and regulation as a public health and safety issue. The D.C. Department of Health published a report in July citing the need for regulatory measures to avoid a crisis.
According to the department, educating the public about safe use is a necessary adjunct to the legalization effort. Additionally, without taxation and regulation, there is no way to curb black market sales of marijuana. By removing the legalization question from one of fiscal issues, the city hopes to exercise a bit of autonomy that — if successful — could tap into much needed revenue from marijuana taxes.
Last year, Colorado saw over $1 billion in revenue from the legalization and sale of marijuana. Neighboring states like Maryland have already taken advantage of the growing marijuana industry. There, even former DEA agents are vying for one of 15 cultivation licenses the state will issue this summer.
It has been nearly 45 years since Washington, D.C. gained expanded home rule, yet Congress still imposes its rule where autonomous laws are enacted, legally, and by and for the residents of the District.
In 1907, the United States Supreme Court elaborated on municipal authority in Hunter v. Pittsburgh. Therein, the Court wrote that “Municipal corporations owe their origins to, and derive their powers and rights wholly from, the legislature.”
Congress gave the District the right to enact autonomous legislation in 1973. The House of Representatives reviewed the 2015 marijuana law, the city council approved the measure, and the people of the city ratified the law. The next progressive step is that the law be enforced by appropriate means — including those that protect public health and safety.
It is time for home rule to operate without partisan bias. Elected officials from other jurisdictions should not govern how majority-enacted District laws are enforced under the auspices of Washington, D.C. as a federal agency.
Besides, when the same men and women who dictate what the District can do fiscally are in need of help, their calls are answered by fire, police, and EMS services paid for and provided by the city. Imagine how quickly Congress would change its position if the next time the phone rang, no one answered.