Category Archives: Fifth Amendment

Malwarebytes

A US man has lost an appeal over his refusal to decrypt hard drives in a case law enforcement says involves child pornography.

The unnamed man has been held by US police for over 18 months without criminal charges.

The suspect's lawyer has argued that he should not have to hand over his passwords due to the Fifth Amendment, which protects US citizens from incriminating themselves.

However, a US judge disagrees.

According to court documents released this week (.PDF) by the US Third Circuit Court of Appeals, during an investigation relating to child pornography on the Internet, a raid in 2015 on the man's home resulted in the seizure of an Apple iPhone 5S and an Apple Mac Pro together with two attached Western Digital external hard drives.

All of the devices were protected with encryption software, of which law enforcement was originally unable to break.

While the suspect gave police a password for the iPhone, he refused to decrypt the Mac Pro and the hard drives.

Forensic investigators were able to discover the password for the Mac which contained images of a "pubescent girl in a sexually provocative position," -- including sexual content relating to Doe's four and six-year-old nieces.

According to prosecutors, browser logs that revealed John Doe had visited websites related to child pornography were also found.

The forensic team was also able to learn that the man had downloaded thousands of files believed to be child porn. Although the team says these files have been downloaded due to their hash values, the files themselves were not stored on the MacBook Pro -- but rather, the inaccessible hard drives.

The suspect's sister also gave testimony to police, alleging that Doe had shown her "hundreds" of child pornographic images from the hard drives, alongside "videos of children who were nude and engaged in sex acts with other children."

However, law enforcement failed to access the external hard drives. Doe refused to hand over the passwords required to decrypt the drives -- at one point claiming to have forgotten them -- and so the court found him in contempt in 2015 for refusing to comply and "produce several seized devices in a fully unencrypted state."

The man has remained behind bars ever since, which currently stands at over 18 months.

Doe originally filed with the US Magistrate Judge to quash the order, arguing that decrypting the devices would violate his Fifth Amendment rights against self-incrimination. This motion was denied, leading to the fresh appeal.

"The Magistrate Judge acknowledged Doe's Fifth Amendment objection but held that, because the Government possessed Doe's devices and knew that their contents included child pornography, the act of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination," the court documents read.

Doe now argues that he should not be held in contempt as the District Court also lacks the jurisdiction to issue the order to decrypt his devices.

Speaking to the BBC, Keith Donoghue, a federal defender representing John Doe said the rejected appeal is "disappointing."

"[We are] studying the decision to determine what further review it may be appropriate to seek," Donoghue said. "The fact remains that the government has not brought charges and our client has now been in custody for nearly 18 months based on his assertion of his constitutional right against self-incrimination."

The Electronic Frontier Foundation (EFF) has filed an amicus brief in this case, arguing against compelling someone to reveal their passwords. In an interview, EFF senior staff attorney Mark Rumold told The Register that "any time suspects are forced to disclose the contents of their mind, that's enough to trigger the Fifth Amendment, end of story."

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US man loses appeal in child porn encrypted device legal case ... - ZDNet

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Ellen M. Gilmer, E&E News reporter

A federal court yesterday rejected an ambitious lawsuit from environmentalists who say federal regulators are biased toward approving natural gas pipelines.

The U.S. District Court for the District of Columbia dismissed a lawsuit from the Delaware Riverkeeper Network that accused the Federal Energy Regulatory Commission of violating stakeholders' due process rights by rubber-stamping gas pipelines.

The group's lawsuit involved a particular proposal, the PennEast pipeline in Pennsylvania, but raised broader claims that FERC's funding structure creates a "structural bias" because the agency's budget is offset by fees and annual charges from natural gas companies.

The claim is based on the Omnibus Budget Reconciliation Act of 1986, which sets the funding mechanism for FERC's natural gas pipeline program. The environmental group says the agency's reliance on pipeline fees results in a violation of constitutional due process rights: depriving the plaintiffs of a neutral decisionmaking body.

FERC lawyers noted in oral arguments earlier this month that the agency's budget is set by Congress, and while the agency uses fees from companies to recoup the cost of the natural gas program, it does not "receive additional revenue when it approves a natural gas pipeline project" (Energywire, March 6).

Judge Tanya Chutkan, an Obama appointee, dismissed the case on procedural grounds, ruling that the group had not properly raised a due process claim, which must demonstrate a deprivation of liberty or property.

"Because Plaintiffs have not identified any liberty or property interest that is cognizable under the Fifth Amendment's due process clause, they have failed to state a claim upon which relief can be granted," she wrote in yesterday's opinion.

Chutkan also rejected the group's partial reliance on a provision of the Pennsylvania Constitution that gives citizens a right to clean air, pure water and conservation of natural resources.

"While [the provision] may confer a public right that would entitle plaintiffs to sue the state of Pennsylvania for failing to protect the environment, it does not create a federal protected property interest for purposes of the Fifth or Fourteenth Amendment," she wrote.

Curtin & Heefner LLP attorney Jordan Yeager, who is representing the Delaware Riverkeeper Network, said he was studying the decision. He would not say whether the group is considering an appeal.

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

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On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn.

Francis Rawls

The 3-0 decision(PDF) by the 3rd US Circuit Court of Appealsmeans that the suspect, Francis Rawls, likely will remain jailed indefinitely or until theorder (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles.

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's becausethe appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already knowthere's child porn on the drives, so Rawls' constitutional rights aren't compromised.

The Philadelphia-based appeals court ruled:

Forensic examination also disclosed that Doe [Rawls] had downloaded thousands of files known by their "hash" values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed her hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives.

"The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine," the court ruled. "In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record."

The suspect's attorney, Federal Public Defender Keith Donoghue, was disappointed by the ruling.

"The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination."

A child-porn investigation focused on Rawls when the authorities were monitoring the online network, Freenet.

The decision from the appeals court comes as encryption is becoming more common on mobile phones and computers. What's more, encryption has seemingly become part of the national political discussion concerning whether governments should demand that companies bake backdoors into their encrypted products so that authorities can access content on encrypted devices.

The Supreme Court has never ruled on the forced decryption issue. A different federal appeals court, the 10th US Circuit Court of Appeals based in Denver, ruled in 2012 that a bank-fraud defendant must decrypt her laptop. The order wasn't enforced, however, as the authorities eventually accessed the laptop without her assistance.

The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple, in which a magistrate judge ordered Apple to produce code to enable the FBI to decrypt the iPhone used by one of two shooters who killed 14 people at a San Bernardino County government building. The government dropped the case when authorities paid a reported $1 million for a hack.

"Unless the suspect unlocks the drives or a court unwinds the order, he will remain jailed," Marc Rumold, an Electronic Frontier Foundation staff attorney who filed a friend-of-the-court brief in the case, said in a telephone interview.

In that brief, the EFF said "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."

The authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state."

See the original post:
Man jailed indefinitely for refusing to decrypt hard drives loses appeal - Ars Technica

I have blogged a few times about a pending 3rd Circuit case on the Fifth Amendment standard for compelling the decryption of a hard drive. As I explained, the case presents an opportunity to weigh in on the 11th Circuits standard in a similar case that I think was erroneous. The 3rd Circuit handed down its decision this morning, United States v. Apple Mac Pro Computer. The court ruled for the government without resolving which standard applies. In a footnote, however, the court hinted that it disagreed with the 11th Circuit and would have adopted the standard that I think is right if it had to choose. Its just dicta, but its pretty strongly worded dicta.

I explained the legal issue in glorious detail in my prior post, but heres a quick overview. If the foregone conclusion doctrine applies, the Fifth Amendment privilege against self-incrimination doesnt bar the act of compelling entering in a password. The question is: What does the government need to show to establish a foregone conclusion? The 11th Circuit had held in its prior case that the government needs to show that the government knows with reasonable particularity what files are on the encrypted device. In my view, thats wrong. The foregone conclusion doctrine applies if the government can show that it knows that the subject knows the passcode.

The 3rd Circuit held that the Fifth Amendment issue was not preserved below, but that even if it should be reached it would not be plain error to say that there was no Fifth Amendment privilege:

Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Does arguments fail under this deferential standard of review.

The 11th Circuits ruling was distinguishable on its facts:

Unlike [the 11th Circuits case], the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them. . . . Based on these facts, the Magistrate Judge found that, for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government. The Magistrate Judge determined that any testimonial component would be a foregone conclusion. The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine.

The 3rd Circuit then dropped this very intriguing footnote, with a paragraph break added by me:

It is important to note that we are not concluding that the Governments knowledge of the content of the devices is necessarily the correct focus of the foregone conclusion inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is I, John Doe, know the password for these devices. Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Does knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.

Theres a lot in that footnote that the government can use in future cases. Its dicta, but its very strong dicta. The issue will live for another day without a circuit split. But given that I think the footnote is correct, I hope it will be followed in future cases.

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Third Circuit doesn't resolve standard for forced decryption under the Fifth Amendment - Washington Post

The Senate on Monday opened hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court. Meanwhile, the eight sitting justices heard arguments in a case that highlights why Judge Gorsuch would be a valuable addition to the panel.

The case involves a dispute out of Wisconsin that offers the court the opportunity to strengthen property rights protections and limit the regulatory states ability to impose arbitrary rules that devalue private property.

Embedded in the Bill of Rights are provisions acknowledging the nexus between property rights and individual freedom. The Fifth Amendment not only prohibits the government from depriving American citizens of life, liberty or property, without due process, it also proscribes the government from taking property for public use, without just compensation.

The infamous Kelo v. New London case in 2005 blew a huge hole in that constitutional protection. Public use had typically been interpreted to mean that the government could seize land to build something like a road, school or firehouse. In Kelo, however, the liberal justices joined by Anthony Kennedy sanctioned the use of eminent domain to confiscate a womans home and turn it over to another private owner for the purposes of generating more tax dollars through redevelopment.

In dissent, Justice Sandra Day OConnor got it right. The decision, she wrote, obliterates any distinction between private and public use of property and thereby effectively deletes the words for public use from the Takings Clause of the Fifth Amendment.

In the Wisconsin case, the court has a chance to undo a tiny bit of the damage done to the takings clause in Kelo.

The issue involves the Murr family who owned two adjacent plots of land since the 1960s along the St. Croix River. One parcel featured a cabin while the other tract was empty and held as an investment property. The family eventually sought to sell the vacant lot to pay for improvements on the other property, but county officials stepped in and decreed that the tracts were considered a single parcel under regulations passed in the 1970s to limit development.

The Murrs demanded they be compensated for the second lot because the county had effectively prevented them from selling it or building on it. Theyre correct. Using the regulatory state to prohibit a property owner from using his own land is no less a taking than if the county were to seize it for a highway. In both cases, the owner deserves just compensation.

The Associated Press reported Monday that the liberal justices appeared inclined to side with bureaucratic power and against property rights. Questions from the right-leaning justices indicated the opposite. Were Judge Gorsuch on the bench to hear this case, chances are good hed choose the Constitution over the bloated administrative state.

The rest is here:
EDITORIAL: Wisconsin case before the US Supreme Court shows why panel could use Neil Gorsuch - Las Vegas Review-Journal

Phil Shawe, co-owner of TransPerfect, before oral arguments at the Delaware Supreme Court in Dover, Del. He has filed a federal lawsuit against Delaware.(Photo: Jason Minto, The News Journal)Buy Photo

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TransPerfect CEO Phil Shawe has filed a federal lawsuit against the state of Delaware.

Shawe claims the Delaware law permitting the state's Court of Chancery to sell a private company violates the U.S. Constitution because it is the unlawful seizure of property.

The lawsuit is the latest in a series of legal challenges Shawe has raised to prevent the sale of TransPerfect, a New York-based translation business. TransPerfect, with more than 3,500 employees across the globe, is slated to be sold after the Chancery Court ruled clashes between Shawe and co-CEO Liz Elting created a dysfunctional atmosphere that could irreparably harm the company's success.

Elting's spokesman, Eric Yaverbuam, did not respond to requests for comment.

Shawe filed the lawsuit in the U.S.District Court for the District of Delaware. The named defendants are Delaware Secretary of State Jeffrey Bullock and Robert Pincus, an attorney with the Wilmington office of Skadden Arps Slate Meagher & Flom who is charged with selling TransPerfect.

"These are the same claims [Shawe] didn't make in Chancery Court and we are going to focus on managing the business and the sales process," Pincus told The News Journal.

When asked if a sale could occur this year, Pincus said, "The sooner the better for both the owners and the employees."

Bullock issued statement saying the Delaware courts have acted "responsibly and consistent" with state law.

"As I have said in the past, we are not in the business of choosing winners and losers, but rather ensuring certainty and predictability," he said.

In the lawsuit, Shawe alleged Title 8 Section 226 of the Delaware Code the law that grants Chancery Court the authority to appoint a custodian to sella private company violates the Fifth Amendment of the U.S. Constitution, also known as the Takings Clause. He claims the custodian appointment is an unlawful seizure of his TransPerfect stock, whichis his personal property.

"Section 226, as construed by the Delaware courts, authorizes the taking of the private property stock in a Delaware corporation of one shareholder and its transfer to another private person without a public use or public purpose with the meaning of the Takings Clause of the Fifth Amendment," wrote David Finger, a Wilmington attorney who is representing Shawein the complaint.

Shawe is asking the court to declare Section 226 unconstitutional and issue preliminary and permanent injunctions to stop the sales process.

Finger said the issue of whether stock can be construed as personal property might be one of first impression, meaning it is an issue that has yet to be decided by a court.

"What we are really saying is that the statute the court relied upon to justify the sale is unconstitutional to the extent that it permits the court to force a sale," Finger told The News Journal.

But Lawrence Hamermesh, a professor of corporate law at Widener University's Delaware Law School, said Shawe might have an uphill battle in federal court.

"Stock is a matter of personal property and I don't see why it should not be subjected, like all property, the Fifth Amendment," he said. "But what constitutes a taking is a debatable point. When you buy stock you agree in advance that the property can be converted or disposed. I don't think you can complain that your property being taken is unconstitutional when you've agreed tothat taking ahead of time."

The Delaware Supreme Courtdeclined to rule on the constitutional issues surrounding the case. It said Shawe did not raise the issue before the Chancery Court and the Supreme Court does not consider questions raised for the first time on appeal. Justice Karen Valihura dissented,however, ruling the constitutional issue should be addressed by the Supreme Court.

The Takings Clause issue wasraised before the Delaware Supreme Court by celebrity attorney Alan Dershowitz, who was hired by Phil's mother, Shirley Shawe.

"I believe in the American system and am following the advice of several of the country's most accomplished constitutional scholars and lawyers in the hope that the federal courts will protect my civil rights," Shawe said of his federal lawsuit.

Shawe's federal lawsuit comes roughly one month after the Delaware Supreme Court denied his appeal of Bouchard's ruling. He claimed the facts do not support the judge's finding that management infighting has created an atmosphere of "complete and utter dysfunction." Shawe pointed to TransPerfect's growth and revenue gains over the past few years.

However, the state's highest court said the trial record "amply supports" the need for a custodian. After the Supreme Court issued its opinion, Shawe vowed to appeal that decision to the U.S. Supreme Court. However, he cannot pursue an appeal until the Delaware Supreme court rules on his challenges to the sale process.

"My intention is to appeal all Delaware cases until justice prevails or until all appeals are exhausted," he said. "At the appropriate time in all cases, should it be necessary, I will petition for certiorari to the Supreme Court of the United States."

Contact Jeff Mordock at (302) 324-2786, on Twitter @JeffMordockTNJ orjmordock@delawareonline.com.

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TransPerfect CEO files federal lawsuit against Delaware - The News Journal

Andrew Harnik, Associated Press

FILE - In this Feb. 14, 2017, file photo, Supreme Court Justice nominee Neil Gorsuch meets with Sen. Chris Coons, D-Del. on Capitol Hill in Washington. Gorsuch is roundly described by colleagues and friends as a silver-haired combination of wicked smarts, down-to-earth modesty, disarming warmth and careful deliberation. His critics largely agree with that view of the self-described workaday judge in polyester robes. Even so, theyre not sure its enough to warrant giving him a spot on the court. (AP Photo/Andrew Harnik, File)

WASHINGTON This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" majorities' rights is the essence of the American project. Is it, or is liberty?

Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place (certain subjects) beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

Chief Justice John Roberts says the doctrine of stare decisis previous court decisions are owed respect is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgments of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgment, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

George Will's email address is georgewill@washpost.com.

Originally posted here:
George Will: Questions for Judge Gorsuch - Deseret News

In a recent column ("Flawed Judicial Mindset," March 3), Dana Kelley argues that the death penalty is plainly constitutional. Therefore, he reasons, if the Supreme Court strikes down the ultimate sanction, the justices will be altering the U.S. Constitution rather than interpreting it. That would be an act of judicial "tyranny" because the Constitution may only be changed by Congress and the states via the formal amendment process set forth in Article V of our governing charter.

I disagree with Mr. Kelley's analysis in multiple respects.

Let me begin by disclosing my own biases. I believe that the death penalty is morally justified in principle. There are some crimes for which execution is a morally appropriate punishment. However, I also believe that the death penalty is not morally justified in practice.

While I hold this latter view on multiple grounds, the two most important are as follows.

First, according to the preponderance of the empirical evidence, the death penalty does not deter crime any more effectively than the sentence of life without the possibility of parole.

Second, our criminal justice system, while the best and most reliable in the world, is far from perfect. A small but critical percentage of jury trials result in a wrongful conviction. This is demonstrated by, among other things, the string of exonerations of death row inmates over the last three decades thanks to improved analysis of DNA. Furthermore, many leading criminal law scholars have concluded that innocent people have in fact been executed in this country. Thus, the risk of imposing the death penalty on an innocent person is simply too great given that the punishment has no supplemental deterrent effect in comparison to life without parole.

The morality and legality of the death penalty are two different issues. And Mr. Kelley's piece concerns the law. So now let's turn to that subject. Mr. Kelley rightly points out that certain parts of the Constitution appear to presume the existence of the death penalty. In particular, the Fifth Amendment provides that no person "shall be held to answer for a capital ... crime, unless" the person is indicted by a grand jury. And the amendment also states that a person may not be "deprived of life ... without due process of law." He says that these clauses codify capital punishment; they establish that the Constitution "allows the government to impose a death sentence, as long as it is the product of due process." But the story is considerably more complicated.

To begin with, the Fifth Amendment grants no government powers. Instead, it places limits on such power. Thus, the authority to execute a criminal must first be identified elsewhere in the Constitution. For state governments, the power to impose capital punishment is provided by the 10th Amendment, which grants states general authority to regulate the affairs within their borders. For our national government, the power comes from Article I, Section 8 of the Constitution, which identifies the legal domains that are subject to federal regulation.

But here is the key point: Any exercise of government power--state or federal--is prohibited if it violates one of the rights-bearing provisions of the Constitution, such as those set forth in the Bill of Rights and the 14th Amendment. For example, Congress is expressly granted the authority to regulate interstate commerce. But if it enacts a statute designed to govern the national economy that also happens to restrict the freedom of speech, then the law is unconstitutional because it violates the First Amendment. The death penalty is subject to the same limitations. Application of the ultimate sanction must be consistent with not only the due process clause, as Mr. Kelley explains, but also with every other rights-bearing provision in our national charter.

One of the most important such provisions is the equal protection clause of the 14th Amendment. It requires that governments not discriminate on the basis of race, sex, and several other grounds. Unfortunately, there is considerable racial discrimination in our criminal justice system. And much research establishes that the death penalty itself is applied in racially discriminatory ways. As a result, there is a powerful argument that capital punishment--as currently applied in the United States--violates the 14th Amendment's equal protection clause.

At most, the 14th Amendment only bars capital punishment until we can expunge disparate racial treatment from our enforcement of criminal law. Does any part of the Constitution go further? In particular, might the Eighth Amendment's prohibition on cruel and unusual punishment make the death penalty unconstitutional more generally? Mr. Kelley thinks the answer is absolutely not. He relies upon Justice Scalia's argument that the framers of the Constitution could not have believed that the death penalty violates the Eighth Amendment because they wrote the Fifth Amendment, which expressly contemplates that executions will be carried out in at least some circumstances. And, Justice Scalia continued, the Eighth Amendment must be interpreted consistently with how it was understood in the late 18th century.

The problem here is that there is considerable evidence that the framers thought that the meaning of "cruel and unusual" would change with time. After all, they used the word "unusual." What is unusual is constantly evolving as governments alter the laws of punishment. It is thus quite reasonable to believe that the death penalty, as a matter of constitutional law, is now cruel and unusual, even though it was not so in 1790.

Now, I actually agree with Mr. Kelley's conclusion about executions and the Eighth Amendment: I do not think that the death penalty is unconstitutional as cruel and unusual punishment. My point here is this: there is a plausible legal argument that Mr. Kelley and I are wrong. And thus, should the Supreme Court strike down the death penalty on Eighth Amendment grounds, that will clearly not be an act of tyranny. It will, at worst, simply be a case where the Supreme Court got it wrong on a legal issue over which reasonable and fair minds can differ. And if the High Court instead uses the 14th Amendment to invalidate capital punishment temporarily, the justices will be on even firmer ground. Indeed, I think they will be right.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions in this column are his own.

Editorial on 03/19/2017

Original post:
Death penalty might indeed be unconstitutional - NWAOnline

Few things seem so clear: We ought not kill other people without a compelling reason to do so.

Most of us agree with this; what divides us is the definition of a compelling reason. If a scary man who says he means to do you harm is coming at you with a gun or a knife, you might be justified in shooting him. You can defend yourself, your family, or another person. In wartime, soldiers kill on behalf of nations. Some wars need to be fought.

But take a man from a cage, strap him to a gurney and pump him full of chemicals until his heart stops? That's unnecessary and unworthy of a sober nation. That is a retributive act, an attempt at cosmic balancing of accounts better left to higher authority. Society deserves better.

I understand the other side well enough to argue for it. The death penalty exacts an ultimate, awesome price and respects the majesty of the moral order. Some crimes are so heinous that life in prison seems an inadequate punishment; there are some crimes that cannot be countenanced. Obliteration is a fair tariff for monstrous acts.

The constitutionality of the death penalty is not in serious doubt; it is explicitly addressed in the Fifth Amendment that holds no person shall be "deprived of life ... without due process of law." We've no legal impediment to execution, only moral qualms and pragmatic problems.

If we could somehow ensure that it is genuinely reserved for the worst offenders, applied fairly and doesn't disproportionately affect the poor and powerless, maybe we can justify it. If it actually provides a measure of comfort to the families of victims or prevents other murders, we might consider it worth the costs.

But it's doubtful it does any of these things. Our justice system is flawed; money buys a better class of defense. Innocent people have been convicted and executed in this country. Dozens have been exonerated while on death row. Politics cause trials to become theater. And prosecutors are often elected officials with an incentive to play to the crowd--to present themselves as fearless avengers of society.

While no one can blame a grieving family for longing for the catharsis they imagine the death of a murderer might bring, there's evidence that it doesn't do that. A 2007 University of Minnesota study by anthropology and sociology professor Scott Vollum found only 17 percent of victims' families--styled as "co-victims"--said the execution of their loved one's killer brought them a degree of comfort, as opposed to 20 percent who said the execution didn't help at all. This isn't surprising since no one would suggest that they are made whole by the carrying out of the sentence. As one of Vollum's co-victims said, "Healing is a process, not an event."

As for the death penalty being a deterrent, there's little reason to believe murderers will be put off by the possibility of facing the ultimate punishment at some point in the future. (A 2008 study found that 88 percent of criminologists reject the idea that the death penalty is a deterrent to crime.) Most murders are committed out of desperation or in the heat of passion; those that are coolly contemplated involve many risks that are far more immediate than being caught and tried and sentenced to death.

While it's instructive to remember murder rates tend to be lower in places without the death penalty than in places with it, my real objection is that it's wrong kill people when you don't have to. And we don't have to kill incarcerated criminals.

Sure, there's always a possibility that if you don't erase a person, that person might prove troublesome or dangerous in the future. Killing them ensures they won't commit any more crimes.

And that also eliminates any possibility of them making future contributions to society. Yes, the possibility is remote, but we should also consider the effects of the death penalty on the innocent people--family, friends, attorneys and others--in the condemned's life. Last year sociologist Michael Radelet of the University of Colorado at Boulder compared "the retributive effects" of the death penalty on these folks and concluded "that the death penalty's added punishment over [life without parole] often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact disproportionately punishes women and children."

This, he writes, undermines "the principle that the criminal justice system punishes only the guilty and never the innocent. The death penalty affects everyone who knows, cares for, or works with the death row inmate."

It affects all of us. It makes our world coarser, more brutal.

There's no compelling reason to do it.

pmartin@arkansasonline.com

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Editorial on 03/19/2017

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There is no compelling reason for revenge - Arkansas Online

ELKINS The American Civil Liberties Union of West Virginia has filed an additional five Freedom of Information Act requests as part of its investigation into a memorandum issued by former Elkins Police Chief Craig Cross that called drug dealers cockroaches and encouraged profiling and violence.

FOIA requests were sent Wednesday to the Randolph County Prosecuting Attorneys Office, the Randolph County Sheriffs Office, the West Virginia State Police, West Virginia Attorney General Patrick Morrisey and to Gary L. Johnson, of the Administrative Office of the Courts in Charleston.

The ACLU is seeking documents from Prosecuting Attorney Michael Parker including, a list of all arrests made during Cross tenure as police chief, a list of all criminal charges during Cross tenure, a list of all assets seized during Cross tenure, a list of complaints against the Elkins Police Department, any and all communications or documents containing the word cockroach, and several other documents.

From the sheriffs office, West Virginia State Police and Morriseys office, the ACLU is seeking complaints filed against EPD, closed investigations on the Elkins Police Department, documents relating to the Watson house on Kerens Avenue, procedural documents, internal and external documents using the word cockroach, and several other documents.

From the Administrative Office of the Courts, the ACLU is seeking complaints against the Elkins Police Department during or after Cross tenure, actions taken by the office, and documents and communications relating to the cockroach memo.

This is the second round of FOIA requests sent by the ACLU of West Virginia. The first FOIA request about Cross memorandum was sent to the Elkins Police Department at the end of February.

In the memo, Cross wrote, in part, If you see any suspected cockroach walking around OUR town with a big a- knife or backpack or hoodie on with the hood up I want them stopped and identified, you know what I want them harassed if you know they are a cockroach. I want people stopped and checked out! PUT THE FEAR BACK INTO THESE COCKROACHES! Stomp cockroach a- if needed! YOUR (sic) COPS AND AS LONG AS YOU WEAR THAT PATCH ON YOUR SHOULDER THIS IS YOUR TOWN! WE WILL EITHER MAKE PEOPLE RESPECT US OR FEAR US, PREFERRABLY BOTH!!!!

Joseph Cohen, the executive director of the American Civil Liberties Union of West Virginia, said the memo was a clear violation of the Fourth and Fifth amendments of the U.S. Constitution.

The Fourth Amendment guards against unreasonable searches and seizures of property and protects against arbitrary arrest. The Fifth amendment guarantees the right to a grand jury, forbids double jeopardy and protects against self-incrimination, as well as requiring due process of law.

The memo is absolutely shocking, Cohen said. It shows a police chief that totally disregards any concern for due process. It shows a department that is completely unconcerned with the constitutional limitations on searches and seizures. It shows a culture of dehumanizing people based on where they live or how they dress.

To the Elkins Police Department, suspects are not human. They are cockroaches, Cohen added. The chief encouraged the use of violence to intimidate and harass people. Why would anyone in Elkins have faith in the criminal justice system? The police department clearly was not an impartial arbiter of the law.

By issuing the memo, Cohen said Cross has put the city and county legal system in peril.

The chief not only would seem to have encouraged the violations of (the) rights of citizens, repeatedly, he also jeopardized any prosecutions that were handled under his leadership by flaunting the requirements of the Constitution, the state ACLU chief said.

Cross resigned as chief in January, but stayed on as first sergeant until he resigned from that position on Feb. 6. Cross took over the department in April 2015.

J.C. Raffety is serving as interim chief until a permanent selection can be made.

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ELKINS A felony child abuse charge against a Randolph County man has been dismissed in Randolph County ...

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ACLU issues requests in memo probe - The Inter-Mountain