Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006 Congress authorized the Attorney General and the Director of the Bureau of Prisons or their designees to order the continued incarceration of individuals who they believe to be sexually dangerous beyond the completion of their prison terms and to petition the court to order indefinite incarceration.

The Supreme Court granted cert in United States v. Comstock to determine the constitutionality of the Federal Government holding prisoners after their prison term terminates. In Comstock the Fourth Circuit found the section to be beyond the limited powers granted to Congress by the Constitution. The Court determined that mental heath hospitalization has traditionally been a responsibility of the states.

The First Circuit Court of Appeals, on the other hand found the statute to be legal in United States v. Volungus Volungus was convicted of possession of child porn. He was sentenced to 53 months and released on supervised release. The court revoked his release and sentenced him to 23 months. Two weeks before his 23 months were to end the attorney general petitioned to have him civilly committed. The First Circuit reasoned that since possession of porn is illegal due to its transportation in interstate commerce civil commitments are constitutional under the necessary and proper clause. When the Fourth Circuit considered the necessary and proper clause it found that the issue was not the underlining charges but rather the prevention of of sex crimes and the prevention and prosecution of most sex crimes are not crimes resulting from interstate conference.

Section 4248 has several problems. First it allows one person, who is not a doctor, who is either a prosecutor or a warden to order the continued incarceration of an individual beyond the termination of his legal sentence. Second, it allows a judge, without a jury, but with certain procedural safeguards to order the indefinite commitment of the former prisoner. Third, it allows the commitment of anyone who is “sexually dangerous,” whether or not that person has committed a sexually violent crime. Fourth, it is doing all of this without constitutional authorization. What dictatorship is this?

The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

Chad Allen Mutschelknaus lost his appeal in the Eighth Circuit Court of Appeals. He challenged the denial of his motion to suppress evidence after he was arrested for child pornography. He raised two issues on appeal. First, he claimed the affidavit supporting a search warrant for his girlfriend’s house was insufficient to show probable cause. Second, he challenged an order by the trial court giving the police 60 days to examine a computer seized during the search.

Police traced the sending of pornographic pictures to “Aronechee,” in Alaska. They obtained permission from “Aronechee” to use his online identity. They tracked a receiver’s Internet Protocol address to Mutschelknaus’ girlfriend. Then they emailed Mutschelknaus claiming to be “Aronechee.” As “Aronechee,” they told Mutschelknaus that “Aronechee” had lost all of his photographs and they asked Mutschelknaus to return copies to “Aronechee”. Mutschelknaus sent “Aronechee” the 236 pictures he had received in his last batch.

Mutschelknaus was arrested. He was charged with possession and distribution of child pornography. He entered a conditional plea to possession of child pornography, allowing him to challenge the search. He was sentenced to 63 months.

Immigration and Customs Enforcement Special Agent Arel filed an affidavit for a search warrant of Mutschelknaus’ girlfriend’s house in which he stated his experience with child pornography and described some of the pictures but he did not attached the pornography to the affidavit. He also asked that law enforcement be given 60 days to study the hard drive of the computer.

The appellate court found that the description of the pornography, in light of Arel’s expertise and training in the field, was sufficient for a finding of probable cause. Rule 41 of the Federal Rules of Criminal Procedure requires that the search warrant be served within ten days of the judge signing it. Mutschelknaus argued that giving law enforcement 60 days to examine the hard drive violated Rule 41. The U. S. Attorney argued that Rule 41 did not cover acts commited after the serving of the warrant. The appellate court found, that in any case, a violation of Rule 41 only results in suppression if the defendant show prejudice and none was shown.

The California Supreme Court in People v. Taylor held that any person who is competent to stand trial and who is competent to waive his/her right to an attorney is able to represent him/herself. A waiver of counsel must be “knowingly, intelligently, and voluntarily.”

When a defendant makes a Faretta motion to represent him/herself the court must voir dire the defendant to determine if he/she understands the consequences of self representation. If the defendant understands the consequences the court must allow the defendant to waive the right to counsel and grant the motion.

Keith Desmond Taylor was convicted and sentenced to death for a murder that occured during a residential burglary. Prior to trial he had problems getting along with his court appointed attorney. He made several motions to represent himself and on his final motion it was granted. His appointed attorney was then appointed to act in an advisory capacity. (Later it was changed to standby counsel meaning that he would take over representation during the trial if Taylor’s right to represent himself was terminated.)

On appeal his appointed counsel argued, inter alia that he was not competent to represent himself, despite the court’s finding that he was competent to stand trial.

As in California law, Federal courts allow any defendant who makes a knowing intelligent and voluntary waiver of the right to counsel to represent themself as long as they are competent to stand trial. The United States Supreme Court in Godinez v. Moran held that while the Federal standard for competencey to stand trial and competency to represent oneself is the sames states are free to insist upon a higher standard of competency in order to represent oneself that the competency level necessary to stand trial. But in Taylor the California Supreme Court reviewed the history of self representation in California and found that the state, like the Federal government uses the same competency standard for both standing trial and representing oneself.

The Eleventh Circuit Court of Appeals upheld the conviction of Jose Lopez for (1) conspiring to encourage or induce an alien to enter the United States, (2) encouraging or inducing 17 aliens to enter the United States, and (3) and knowingly aiding or assisting an alien, who was inadmissible due to a prior aggravated felony conviction, to enter the United States.

In order to uphold the convictions the court found that “encouraging or inducing an alien” under 8 U.S.C. § 1324(a)(1)(A)(iv) included “helping” an alien to illegally enter the United States. Initially the trial judge refused the request of the government to define “encouraging or inducing.” But while deliberating, the jury sent a note requesting a definition and the judge gave the government’s proposed dictionary definition:

In response to your question concerning “encourage” and “induce,” I instruct you on the below dictionary definitions in conjunction with all of the Court’s instructions in your deliberations.

To “encourage” means to knowingly instigate, to incite to action, to give courage to, to inspirit, to embolden, to raise confidence, to help, to forward, and/or to advise.

To “induce” means to knowingly bring on or about, to affect, cause to influence an act or course of conduct, lead by persuasion or reasoning, incite by motives, and/or to prevail on.

The evidence at trial showed that Lopez accompanied two other men to the Bahamas, where they picked up 19 aliens. It did not show that Lopez at any time spoke with the aliens. Nor did it show that he went with the intent to bring aliens into the country or that he even knew that the aliens were illegal until after the boat left the Bahamas. It did show that while he did not own the boat he steered the boat most of the time.

But as the dissent points out to define “encourage” as “to help” allows Lopez to be convicted for steering the boat. Yet steering the boat is a violation of 8 U.S.C. § 1324(a)(2) which prohibits transportation of illegal aliens. Laws are to be read in such a way that one section of a law does not duplicate another. Furthermore since words should be given there normal meaning and since “to help” is one of the last in a series of definitions for “encourage” in most dictionaries the dissent by Judge Barkett states

The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible interpretation, namely, “to help.”