A Voice for One, or a Voice for the People: Balancing Prosecutorial Speech Protections with Community trust

Prosecutors, as representatives of the public in the criminal justice system, are the sole advocates for “the People” in a criminal case. Thus, prosecutors are expected to maintain a particular level of integrity that would ensure a fair and just representation of the People. Despite this expectation, the wide discretionary authority prosecutors hold makes it virtually impossible to regulate their conduct. Furthermore, the First Amendment of the U.S. Constitution protects many expressions of viewpoints, and such protections extend—albeit to a limited degree—to prosecutors, thereby giving them even more discretion in how they decide to handle their own cases. Nonetheless, the U.S. Supreme Court has not interpreted the First Amendment to protect prosecutors whose words evidently contravene the functions of the prosecutor’s office. Rather, a prosecutor may be terminated if the office finds that the prosecutor’s speech undermines the office’s interests. What the law does not address, however, is the extent to which the First Amendment protects prosecutors whose unfavorable viewpoints do not affect their individual performance within the workplace but nonetheless detract from the community’s trust in the prosecutor’s office. This Note examines the state of the First Amendment as it applies to prosecutors within the scope of their employment and utilizes the underlying principles to expand the discussion to prosecutorial speech beyond the scope of their employment. Ultimately, this Note proposes that prosecutorial speech should be regulated not only by the effect the speech has on the office’s functions but also by the adverse effect the speech has on the community’s trust in the prosecutor and the office to pursue justice in an unbiased manner

License to Kill: How Lax Concealed Carry Laws Can Combine with Stand Your Ground to Produce Deadly Results

The shooting death of Trayvon Martin and George Zimmerman's subsequent acquittal have focused the nation's attention on expansive self-defense laws -- so-called Stand Your Ground laws -- that enable an individual to use deadly force even in situations in which lesser force would suffice or in which the individual could safely retreat to avoid further danger. Leaders from around the country, including President Barack Obama and U.S. Attorney General Eric Holder, have questioned how Florida's law -- which is similar to laws enacted in 21 other states -- may have contributed to the circumstances that led to Martin's death.Yet the Martin case also implicates another set of laws: the state laws governing who may carry concealed firearms -- the laws that put a gun in Zimmerman's hands in the first place. Under Florida law, even individuals such as Zimmerman, who have a criminal history and a record of domestic abuse, are generally entitled to a concealed carry permit, as long as they are not barred from gun possession under federal law and as long as their offense does not meet a very narrow range of additional exclusions under state law. If Zimmerman had applied for a permit in one of the many states with stronger permit requirements, his history of violence and domestic abuse would likely have disqualified him from obtaining a concealed carry permit. This case might then have had a very different outcome.These bodies of law -- Stand Your Ground and concealed carry permitting -- concern issues that are traditionally left to the states. In many ways, these issues are appropriately decided at the state level; the self-defense and concealed carry laws of New Jersey should not be imposed on Montana and vice versa. But there is an appropriate federal role. The federal government should ensure that states do not enact laws that have racially disparate impacts or significantly jeopardize public safety

Lessons from New Orleans: A Stronger Role for Public Defenders in Spurring Indigent Defense Reform

Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction. The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a funding crisis in Louisiana, the OPD refused to take new cases beyond constitutionally permissible workloads. This refusal resulted in criminal defendants being put on waiting lists for representation, which garnered national attention, gave rise to class action lawsuits against the state, and created a threat to public safety. These are governance problems that legislators prioritize over funding indigent defense. The OPD’s refusal to take new cases has been somewhat successful: in response to this crisis, the state legislature has provided additional funds to public defenders’ offices in the state. Public defenders are in a unique position to put pressure on legislators. By refusing to take new cases that would cause their workloads to be excessive, public defenders can both maintain their obligations to the profession and ensure constitutional representation for their clients

Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention

In May 2010, reports surfaced that the United States Immigration and Customs Enforcement agency (ICE) was investigating allegations that a guard at a Texas immigration detention center had sexually assaulted several female detainees. The guard, who was arrested on August 19, 2010, on suspicion of official oppression and unlawful restraint, allegedly groped women while transporting them to an airport and a bus station where they were being released.While largely covered in the media as an isolated incident, this was only the latest in a series of assaults, abuses, and episodes of harassment that have quietly emerged as a pattern across the rapidly expanding immigration detention system. Due to a shortage of publicly available data and the closed nature of the detention system, the extent to which ICE detainees are subject to sexual abuse nationwide is unclear, but the known incidents are too serious and numerous to ignore.ICE has recently proposed policy changes to address sexual abuse, and these show promise. They include prohibitions on guards searching detainees of a different gender and restrictions on when guards may transport detainees of a different gender. ICE plans to publish a revised detention standard that includes new requirements for facilities to develop medical and investigation procedures and to collect data on incidents of abuse. However, more changes are needed, as well as greater oversight and accountability."Detained and at Risk" is based on the examination of allegations of sexual assault, abuse, and harassment in ICE detention from a range of sources, including press reports, governmental and nongovernmental studies, a public hearing, court documents, and Human Rights Watch interviews. The report shows evidence of a disturbing pattern of abuse, and points to an urgent need for investigation and action to correct glaring gaps in detention policy and practice

New York Breaks Gideon’s Promise

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates that between 60 to 90 percent of criminal defendants cannot afford a lawyer, and must rely on public criminal defense services. Even though there has been an exceptional rate of criminalization and growth in the prison system population, funding for public defenders remains inadequate and meager compared to prosecution offices. In 2007, the U.S. Bureau of Justice Statistics (BJS), determined that state and local public defender offices’ budgets were merely $2.3 billion, compared to prosecutor offices’ budgets that were approximately$5.8 billion. BJS further concluded that only 27 percent of county-based public defender offices have an adequate number of attorneys to effectively manage their caseloads. This has real consequences for defendants. “Numerous studies that stretch from the 1980s to recent years show that public defenders meet with clients less quickly, file fewer motions, plea-bargain more often, and get charges dismissed less often than private attorneys.” However, since politicians receive little incentive from voters to reform the public defense system and increase public defender offices’ funding, these deficits continue to persist in jurisdictions. The absence of a political upside for lawmakers to increase funding may be the reason why Governor Cuomo of New York vetoed Bill S.8114/A.10706, a criminal justice reform bill that would have required New York State, rather than the individual counties, to provide funding for public defender office