Thursday, April 17, 2014

“Rehoming” Law: Are Private Child-Custody Transfers Illegal?

You probably thought it was illegal to simply give your child away, without any kind of legal oversight. But Reuters reports that a new Wisconsin law curtailing private transfers of child custody is “the first law of its kind” in the country. (“Wisconsin passes law to curb private custody transfers of children.”)

New Law

The new law makes it a misdemeanor for anyone who isn’t licensed to advertise a child for either adoption or informal custody transfer. (The provision apparently applies only when the child is over age one.) The law also applies to people who seek children, and to those who promote their services as middlemen in such transactions. It specifies that those who intend to transfer custody to non-relatives must obtain permission through the courts. (Check out the law here.)

Not Illegal Already?

Surely, existing laws already covered this kind of “rehoming,” right? One can’t help but imagine the kind of worst-case scenarios that would have to be illegal. For instance, Reuters describes the case of a mother who, shortly after advertising him with a Yahoo group, delivered her adopted nine-year-old to a pedophile in a motel parking lot. It was that kind of story, revealed by a Reuters exposé on parents advertising their unwanted adopted children on the Internet, then giving them away, that sparked the Wisconsin legislation. (See “The Child Exchange.”)

Shockingly, rehoming isn’t illegal everywhere—and perhaps anywhere. Reuters reports that “[n]o state or federal laws specifically prohibit the practice,” though people sometimes violate existing law in the course of a rehoming arrangement. And although Wisconsin law now forbids most child advertising and outlaws the practice of moving a child into or out of the state for custody transfer, it doesn’t unequivocally ban transfers themselves.

Legal Loopholes

A quick look at existing statutes indicates where they come up short. For example, in Colorado, it’s illegal to sell, exchange, or receive a child in return for anything of value; such a transaction constitutes child trafficking, a second degree felony. (Colo. Rev. Stat. § 18-3-502.) The law conditions punishment on the exchange of something of value, such that someone who simply hands off a kid hasn’t violated it.

Thankfully, other states are looking to enact legislation similar to Wisconsin’s. And Congress is making noise about getting federal laws on the books.

Tuesday, April 15, 2014

Court-Ordered AA: Unconstitutional?

Judges and officials like parole officers often order people who’ve been convicted of crime to participate in substance abuse counseling. Judges may even force litigants in family law court to do the same. Broadly, these orders make sense: Alcohol and drug abuse treatment can help not only addicts, but also the people around them.

Religious Treatment

Alcoholics Anonymous—ubiquitously called “AA”—is the most prominent recovery program. Whether it’s AA, Narcotics Anonymous (NA), or a similar 12-step regime, judges frequently order defendants to get treatment. Defendants may have some say in the exact program, and even if they don’t, they may be so happy to avoid jail that they abide with the court’s order. So happy, in fact, that they don’t recognize or are willing to overlook potential violation of the First Amendment’s Establishment Clause.

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” It creates what’s commonly known as the separation of church and state. AA and related recovery programs, on the other hand, are fundamentally religious:

“The 12 steps required for participants in [AA and NA] include an acknowledgment that ‘a power greater than ourselves could restore us to sanity’ and a promise to ‘turn our will and our lives over to the care of God as we understood Him.’ They also call for prayer and meditation.”


Courts Intervene

Several courts have acknowledged that the government can’t coerce people into participating in treatment programs with significant religious overtones. In one federal case, the court held that prison authorities violated the Establishment Clause with regard to a rehabilitation program. The authorities conditioned sentence reduction on inmates attending a program that emphasized spirituality and encouraged them to “turn their lives over to ‘higher power.’” (Nusbaum v. Terrangi, 210 F. Supp. 2d 784 (E.D. Va. 2002).) Another federal court ruled that a parole officer violated the Establishment Clause by requiring a former inmate to attend AA/NA meetings as a parole condition. (Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007).)

Though many litigants would be surprised to learn it, the principle that the government can’t impose even partially religious treatment is relatively well settled. Legal challenges may be available to those pressed into programs like AA and NA. Or they may simply be able to choose equivalent secular treatment.

Thursday, April 10, 2014

DOJ Blasts Albuquerque Police for Excessive Force

For all his mishaps, Walter White was lucky to have avoided the Albuquerque Police Department. That agency, the subject of a 16-month-long investigation by the U.S. Department of Justice, really knows how to treat its suspects. As The New York Times reports, the DOJ’s Civil Rights Division determined that the Department “had engaged in a ‘pattern or practice of use of excessive force,’ often acting recklessly and violating people’s constitutional rights.” (For information on legal remedies in excessive-force situations, see Police Brutality.)

The report indicates that APD officers systematically trampled Fourth Amendment rights and recklessly used deadly force. It shows that officers were responsible for escalating confrontations to the point that they would fire upon people who posed no realistic threat.

Many of the force's victims had mental health issues. Included among them were a homeless camper—many believe that the video of the confrontation shows that he was surrendering before officers killed him. (See FBI Investigating Albuquerque Police Shooting Of Camper.) All in all, Albuquerque officers have shot 37 people in the last four years, killing 23 of them.

Of course, Albuquerque had already begun to incorporate reform as it braced for the DOJ’s condemnation. It’s too bad that it takes the shadow of the federal government, if not its heavy hand, to get some governments to behave humanely—and constitutionally. As the Times mentioned, the DOJ has also had to corral police departments in cities like Detroit and New Orleans.

Tuesday, April 8, 2014

Murder Prosecution for Pregnant Women Who Use Drugs?

Samiya Gibbs emerged from the womb lifeless, umbilical cord wrapped around her neck. As Nina Martin of ProPublica explains, Samiya’s mother, Rennie, had become pregnant at age 15. On three occasions during her pregnancy, Rennie tested positive for marijuana, cocaine, or both. She missed medical appointments. And she again tested positive for both substances 36 weeks into the pregnancy, when Samiya was stillborn.

Despite the apparently obvious cause of death—umbilical cord compression—a much-doubted medical expert determined that Samiya’s death was homicide by cocaine toxicity. This determination led to Rennie’s 2007 indictment by a Mississippi grand jury, and a passionately contested legal battle.

Fetal-Harm Prosecution

As Martin reports, the number of “fetal harm” cases—in which authorities accuse mothers of endangering or killing their fetuses through acts like drug abuse—has been on the rise. But there’s dispute in the scientific community about the effects of cocaine exposure before birth. Beyond that, though, there’s tremendous controversy over the practice of prosecuting mothers for harming their unborn children, a practice that doesn’t appear to have any deterrent effect.

Martin notes that the women suspected of fetal harm via drug use are “disproportionately young, low-income and African American.” And Katie McDonough of Slate observes “an overwhelming consensus among medical experts and healthcare providers that [fetal harm] laws do not improve health outcomes, and produce a chilling effect that keeps pregnant people from seeking prenatal care or treatment for substance use, often for fear of being reported, detained and jailed.”

Authorities Undeterred

The fetal-harm controversy is nowhere more conspicuous than in the case of Rennie Gibbs. Prosecutors charged her with what’s called “depraved heart murder” in Mississippi—it’s essentially a form of second degree murder involving extreme recklessness by the defendant. (See Murder vs. Manslaughter: State of Mind.) Over seven years after Samiya’s death, the case is still pending. Most recently, a judge dismissed the murder charge, saying  that “the law was unclear in Mississippi as to the appropriate charge, if any, to be levied when a pregnant woman allegedly consumed illegal drugs and allegedly caused the death of her unborn child.” (McDonough.)

Mississippi prosecutors have announced their intention to re-up efforts to get Rennie Gibbs behind bars, and to leave her there for a long, long time. They do so to the condemnation of the American Congress of Obstetricians and Gynecologists, the American Medical Women’s Association, the American Nurses Association, the Association of Reproductive Health Professionals, the National Alliance on Mental Illness, the American Psychiatric Association, the National Institute for Reproductive Health, the National Perinatal Association, and the National Women’s Health Network—to name a few.

Thursday, April 3, 2014

Authorities Subject Drivers to Swab Tests for Drugs

A few weeks ago, tongue somewhat in cheek, I hypothesized that officers would start taking buccal swabs from drivers during traffic stops. (Hey! That's My DNA!) Turns out that practice was already in the works.

In Los Angeles and other cities throughout the country, officers and federal contractors have started using saliva-swab tests on motorists for evidence of “drugged,” rather than drunk, driving. The National Highway Traffic Safety Administration is funding the testing as a pilot program. The program has involved the testing of scores of drivers at DUI checkpoints

In drunk driving cases, the standard tests are blood and breath, both of which are means to determine a driver’s blood-alcohol level. The new saliva tests “detect marijuana, methamphetamines, narcotics, and cocaine.” (Hamed Aleaziz, “Cities employ traffic stop swab tests,” Daily Journal, March 21, 2014.)

For now, these swabs appear to be optional; the driver typically has the choice of refusing the test. But it’s hard to imagine that overbearing officers effectively communicate the elective nature of the swab. (See Feds' roadside drug survey causing outcry.) And it seems like only a matter of time before these exams become mandatory—and someone challenges them in court.

Wednesday, April 2, 2014

Supreme Court Clarifies Meaning of “Domestic Violence”

Late last month, the Supreme Court determined that “domestic violence” doesn’t necessarily involve violence or threats of it. 

In the case before the Court, a man had appealed his conviction for illegal firearm possession. He had once been convicted in Tennessee of “intentionally or knowingly causing bodily injury to” the mother of his child. Pursuant to federal law, that domestic-violence conviction cost him his right to possess a gun. Authorities alleged that he dealt with guns after the “bodily injury” conviction, leading to a conviction for illegal firearm possession. He then argued that his original conviction didn't qualify as domestic violence—therefore, he claimed, the gun prohibition was invalid. (U.S. v. Castleman, 12-1371 (2014).)

No Guns

Federal law bars defendants convicted of felonies and misdemeanor domestic violence offenses from possessing firearms. States have similar gun possession laws. (See Can someone possess a gun after a criminal conviction?) The issue in the case before the Supreme Court was what constitutes “domestic violence.” The Court explained that, to qualify as domestic violence under the federal gun law, a misdemeanor must involve:
  • physical force
  • an attempt to use physical force, or
  • a threat to use a deadly weapon. (18 U.S.C. § 921(a)(33)(A).)

The Court determined that the defendant had been convicted of a domestic violence crime—it said that “intentionally or knowingly causing bodily injury” inherently involves force. And it held that “force” within the meaning of the firearm-prohibition doesn’t need to be violent force.

Taking Offense

Traditionally, the crime of battery consisted of a harmful or offensive touching. Today, offensive touching almost universally remains illegal.

A harmful touch is easy to spot—for example, a punch or the firing of a weapon. A purely offensive touch isn’t quite as easy to conceptualize. It doesn’t require any injury—in that sense, the harm is more emotional than physical. Examples of potentially offensive, but not necessarily injurious, touching are grabbing, shoving, or even kissing someone.

The Supreme Court said that including nonviolent force within the definition of domestic violence makes sense. It observed that an accumulation of nonviolent acts like squeezing someone’s arm can, over time, “subject one intimate partner to the other’s control.” It also cited the escalating nature of domestic violence and statistics on domestic abuse where guns are present. All in all, the Court’s majority had little trouble including offensive touching within the gun law's “domestic violence.”

Wednesday, March 26, 2014

Bin Laden Son-in-Law Convicted of Serving as Al Qaeda Spokesman

On Wednesday a federal jury in New York convicted Sulaiman Abu Ghaith, son-in-law to Osama Bin Laden, of conspiring to kill Americans and other terrorist offenses. Abu Ghaith now faces up to life in prison.

Federal prosecutors accused Abu Ghaith of serving as Al Qaeda’s spokesman. They charged that he was crucial to the organization’s efforts to recruit terrorists. 

The conviction is a victory for the Obama administration, which had been the target of critics who want alleged terrorists tried in military tribunals. The case is also noteworthy in that it didn’t involve any allegation that the defendant planned or otherwise played an active role in any particular terrorist attack.

Abu Ghaith, a Kuwaiti imam, served as the voice-over for post-September-11 propaganda videos. On the morning following the 2001 attacks, he appeared in a recording with Bin Laden. In another, he threatened impending assaults against the United States and called upon others to attack. 


The principal charge against Abu Ghaith was “conspiracy with respect to homicide.” (18 U.S.C. § 2332(b).) A conspiracy conviction generally requires proof that:
  • two or more people agreed to commit a crime, and
  • that one or more of them took an action toward committing that crime.
To be liable for a conspiracy, a defendant doesn’t need to accomplish the goal of the conspiracy or play a direct part in it. Courts have upheld convictions for conspiracy to kill U.S. nationals without proof that the defendants actually harmed anyone. For example, in one federal case, the evidence was sufficient where the defendant told an informant that he wanted to commit Jihad against American troops, gave the informant potential terrorist-training material, and recruited another to participate in such training. (U.S. v. Amawi, 695 F.3d 457 (6th Cir. 2012).)