TLDR: The lawyer in the viral YouTube video on not talking to the police has written a book on it. Also, due to a Supreme Court ruling, saying that you invoke the 5th amendment can be seen as admitting guilt.
I don't think so. There are tons of great reasons not to answer police questions ruling puts innocent defendants in the position in the position of answering to their detriment or having their silence used against them.
IANAL, but my understanding of the supreme court decision is that if you stop answering questions, that can be presented to a jury as evidence that you may be guilty. A stupid example:
Q: Did you kill Alice?
A: No.
Q: Did you kill Bob?
A: No.
Q: Did you kill Carol?
A: silence
They can then make the argument in court that since you stopped answering questions at the 3rd one that you are trying to hide something. This is why the advice is to just straight up refuse to answer any questions without a lawyer. "I want a lawyer" is not refusing to answer the question, just delaying it, so may not be covered by the current precedent.
I am a lawyer, and a former prosecutor and former defense attorney (I do civil law now). And invocation of your right to counsel is supposed to terminate all questioning. Very clear that it cannot be presented as evidence if the matter goes to trial.
My understanding is that in Salinas v. Texas the issue was that the defendant did not explicitly invoke this right, but was quiet; though apparently, at least one of the Justices was of the opinion that the 5th amendment rights do not apply when the person being questioned is not being detained.
Not just actively invoking the fifth, but talking non-specifically to the police, and then choosing not to answer further questions when it becomes clear they are investigating you, is now explicitly evidence of guilt, which is absurd. So the only option is not to speak at all beyond the required minimum.
Also, I'd say this is not the sort of thing one should tldr.
ISTM silence is even better for the innocent than it is for the guilty. An innocent suspect has no idea what sorts of statements will be interpreted as incriminating.
Of course you should be polite. It's possible to speak and say nothing up until you need to say "I see you have some important questions. Let's arrange a time when my lawyer can be present."
That is _exactly_ what the police want to exploit when they're questioning you - social norms and politeness.
When you're having a conversation, we're conditioned to find long pauses awkward and uncomfortable. That's why when you start not saying anything during a conversation, the other person will jump in and start filling the dead air.
It's useful during negotiations, because the person will start jumping in with concessions, trying to make things less awkward, when you let silences stretch out when it's "your turn to talk".
Just remember, the police are not your friends. They want something out of you. Don't give them a single inch.
"I want a lawyer" or "I want my lawyer" and then shutting up has nothing difficult, impolite, awkward, or unrealistic about it.
If you're worried about politeness when the cops are trying to pin a crime on you, I really don't know what to say except think about how impolite it would be for them to arrest you.
My guess is that outside the USA your legal protections are likely similar or a bit weaker, but the cops are less likely to be antagonistic. (And even in the USA, it will depend on locality and all kinds of circumstances).
Various incentives exist for police and prosecutors to aggressively put people behind bars. I think these are stronger in the populist US, than in other rich democracies where beaurocratic respectability is more valued.
The same, by not saying anything to police who question you on the street it can be 'obstruction' if you don't ask for a lawyer first before being silent, unless you are arrested and your right to be silent is given to you. Also in Canada police don't have to stop talking to you if you've requested a lawyer they can still keep you in interrogation trying to get you to talk for as long as they want, which usually means all weekend until you see a judge on Monday morning. http://www.edelsonlaw.ca/news/show/40/8/0000/0
Any informants they place in your cell with you, regardless of you asking for a lawyer may continue to interrogate you as well. Your prison phone calls can also be recorded and used against you, again regardless if you've asked and not seen a lawyer so if you phone your job and make up an excuse why you won't be there on Monday morning, that excuse can be used against you in court. A well known trick is for the police to place you with an informant who offers you a cellphone, because typically you have to call 3-4 people when arrested (family/gf, job, a lawyer) instead of just the one phone call they have to give you (which they don't have to provide until days after you are arrested). This contraband phone will be recorded hoping you say something incriminating, or just hoping you lie so they can prove later you are a "known liar" since most people don't want to tell their employer they've just been arrested and will lie about it.
The procedural protections of the criminal justice system are weaker in many developed countries outside the US. E.g. Italy where you can keep trying someone for murder until you get the result you want. What makes the overall system worse in the US is how militarized the police are, how over the top aggressive prosecutors are, and how long sentences are.
According to Pfaff, It's mostly the middle (how aggressive --- and also how poorly allocated --- prosecutors are), and very little the latter (although sentences are clearly too long).
If we're comparing the US criminal justice system to other countries, another more fundamental problem we have is that we simply have more crime. Not "people are getting busted for weed" crime, but property crimes and violent crimes. That fact implicates a much broader spectrum of public policy critiques about the US than how we manage the criminal justice system.
Italy is bananas. A few years ago I accidentally drove a rental car through a ZTL in Rome. Some months later I received a letter in the mail at my home in the U.S. asking me to pay the fine (even though I had already paid it to Avis). What was astonishing was that the ticket said you were allowed to contest it, but if you contested it and the authorities decided against you, the fine would significantly increase.
>He didn't say a word. And there's no doubt that he was exercising his Fifth Amendment privilege, but he didn't [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn't tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt.
Wow, just wow. Even when you choose to say nothing, that can be used against you as guilt. It really seems like the American way is guilty until proven innocent, and there will be no let up and everyone is in jail!
The overwhelming majority of prisons are not run for profit, their staffing is a drain on public resources, and they're generally underfunded given their inmate population.
There are privately run prisons in the US, but they do not define the system. Incarceration is expensive --- so expensive that criminal justice reform is starting to become a bipartisan issue at the federal level.
Private prisons are often used as a bogeyman because they are so obviously inarguably morally repulsive that they are an easy target. But they aren't as significant as most people would make them out to be.
That being said, there is still an enormous profit motive attached to much of the current criminal justice system. There are a huge number of people who make their living off of it (and often times a whole lot more than a living) and have a vested economic interest in continuing business as usual. To pick a couple of easy examples, in California, the union for prison guards is an enormously powerful lobby (smaller than the teacher's union but more politically powerful) and spends a huge amount of time and money pushing for longer sentences and more incarceration. The alcohol industry very much likes that the criminal justice system is locking people in cages when they choose to use a competing product and is lobbying very hard to keep marijuana illegal wherever it can. Prisoners are used to work at slave wages for large private companies who make a killing off of it.
So while I'll accept the dismissal of the private prison issue which is rarely significant but exhaustingly invariably raised in every single discussion even tangentially touching CJ, there's some meat to what GP is saying. And we're not quite anywhere near bipartisanship on CJ reform yet at least on a federal level; half the presidential candidates have decried any attempts to reform CJ and declared themselves the "law and order candidates"
Can we name some large companies that are making a killing off prison slave labor?
Is there evidence that companies like AB InBev are campaigning against legalization? Also: marijuana has only a marginal effect on incarceration (contrary to popular belief drugs as a whole are minor fraction of the crimes people are imprisoned for, an marijuana is only a very small fraction of that fraction) --- so how big an impact can AB InBev be having on prison populations?
There are a lot of compelling narratives about incarceration that turn out not to be true when you consult the data. Again: Pfaff is a great resource for this stuff.
I agree that corrections officers unions have political clout. But I dispute the idea that they're a significant force for increased sentencing. What's probably really happening is that corrections officers work at understaffed, underfunded facilities that are left to fend for themselves against an onslaught of felony convictions generated by aggressive prosecutors. Of course they want bigger prisons! Are you reading a lot of stories about how state prisons are overprovisioned, with too many empty beds? I'm reading the opposite.
Nearly 50% of federal prisoners are in on drug charges. For state it's 16%. There were 700k marijuana arrests in 2014 alone. It's not enough to explain our CJ issues by itself but it's very significant.
And the subject here is not just explicit incarceration, it's profit motive associated with the criminal justice system: the CJ system is explicitly designed (among other things) as a deterrent system. Even if the number of (white) Marijuana users incarcerated is small, keeping it illegal pushes people away from it and towards the more dangerous drug, alcohol, according to some alcohol industry spokespeople at least, as per that article and many others.
The concerns I have with the unions have nothing to do with their pushing for better funded and larger prisons to house the prisoners we do have (which they most certainly do as well). If you take the California example, they fought hard in favor of three strikes (and succeeded!), they were BY FAR (by 4x) the biggest donor to 'No on 5' in 08 (and succeeded!)
Prison labor data is difficult to find -- I assume large companies aren't eager to make it known they use prison labor, but either way I'm just having trouble finding references with any kind of hard data at all positive or negative from a reasonable source. Whole foods made news when it stopped using prison labor. The BP oil spill was cleaned up in large part by inmates, not paid contractors or employees. AT&T laid off their call center workers and hired inmates in the 90s.
> Because you didn't tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege,
That ruling needs challenging. It runs contrary to the Miranda rights. The police explicitly state that you have the right to remain silent. They don't say that you need to invoke the right.
That ruling came from the supreme Court, the highest court in the land. I don't think there's any way to challenge it, short of waiting a really long time.
Miranda is only implicated when you're taken into custody, which didn't happen here. It doesn't protect you from incriminating yourself in a voluntary conversation with the police, which is what happened here.
The purpose of Miranda, and the Fifth Amendment generally, is not to keep guilty defendants from incriminating themselves. It is to keep the State from using its coercive power to extract unreliable confessions from the accused. When an accused incriminates himself without the coercive power of the state being invoked, excluding the evidence does not serve the purpose of the Fifth Amendment. The Supreme Court has given a pretty broad reading to when the coercive power of the state is invoked, but has drawn the line just short of "any interaction with the police."
Wow. I can't believe they called it a privilege! What does that mean in their minds? I though the Bill of Rights, and therefore the 5th Amendment, were rights not a privilege. When and how did they transform a right into a privilege? It appears that it has taken less than 250 years to revert back into subjects.
Not the American way, the Republican way. More specifically they are statists, and there are some Democrats floating about who are statists.
The state is assumed to be right, not cooperating is admission of guilt. They are
"law and order" type who believe in vindictiveness and wrath when citizens won't respect police power.
Hint: when someone explains a case in a way that uses absolutes to describe unknowable states of mind ("no doubt he was exercising his Fifth Amendment privilege"), stop reading the explanation and go read the case: https://www.bloomberglaw.com/public/desktop/document/SALINAS....
It is well settled that the Fifth Amendment right against self-incrimination must be explicitly invoked:
> The privilege against self-incrimination "is an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U. S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who "`desires the protection of the privilege . . . must claim it'" at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration[384] , 273 U. S. 103, 113 (1927).
> That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610-611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11.
In this case, the defendant had not been read Miranda warnings because he had not been taken into custody. It was a voluntary questioning. He then started answering questions, but went silent when talking about the ballistics evidence. Thus, the whole case was about whether "he was exercising his Fifth Amendment privilege" or not. The Court decided that under the circumstances, he was not:
> Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and "was free to leave at any time during the interview." Brief for Petitioner 2-3 (internal quotation marks omitted). That places petitioner's situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that "[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment." Post, at 7-8 (opinion of BREYER, J.). The critical question is whether, under the "circumstances" of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not.
Predictably, the SCOTUS case discussed in the article, Salinas v. Texas, split down conservative/progressive lines, with Kennedy casting the deciding vote to abrogate our 5th amendment privileges. Three members of the Supreme Court are over the age of 70—Kennedy is 80. Vote accordingly next month.
However, Scalia's dissent in Maryland vs. King was a truly conservative-based dissent. You also have Kyllo vs. United States where 'liberals' Kennedy and O'Conner dissented and 'conservatives' Scalia and Thomas joined Ginsburg and Breyer in the majority that established using FLIR without a warrant was a violation of the 4th Amendment.
In US vs. Jones, Scalia again wrote the majority opinion enstablisbing that a GPS tracker on a car is a violation of the 4th.
We also have Riley vs. California, Hamdi vs. Rumsfeld (where Scalia'd dissent was joined by John Paul Stevens.)
My point is that we need justices that follow the Constitution and not justices that follow a party. I don't particularly trust Clinton to pick constitutionalist justices while Trump is a wildcard (he isn't even remotely conservative, so it's likely his picks would likely be more centrist to please his own centrist views without alienating the Republican voters.)
I don't like Trump or Clinton, but I think Trump picks will likely be more moderate than anyone Clinton might select.
However my opinion doesn't matter, what I'm trying to say is that a vote for Hillary doesn't mean a vote for judges that will rule correctly. It doesn't mean a vote against those judges either. But 'vote accordingly' is meaningless because there is no 'accordingly.' For example, look at Kagan's opinion in Ransom v. FIA Card Services.. She sided with the credit card company over a consumer in a bankruptcy case while Scalia was the only dissent in the 8-1 decision.
Vote accordingly.. ok how? Meaning, there is no such thing. "Liberal" justices aren't always "liberal" in ways that you might like and "conservative" doesn't always mean what you think. The court is far more nuanced. A balanced court is far safer than one ideologically disposed to one extreme or another. It would be very dangerous to have an entire court of John Paul Stevenses just as it would be dangerous to have a court filled with Clarence Thomases.
You seem to imply that the court ruled incorrectly in the Ransom v. case. I skimmed through it (https://en.m.wikipedia.org/wiki/Ransom_v._FIA_Card_Services,...) and while I most certainly am not a legal scholar, it seems fairly straightforward? No, it doesn't cost $28k to own a car you already own outright for five years (operating expenses are claimed separately and not controversial here) and you don't get to protect that money in a bankruptcy.
What am I not seeing? (To be fair, and to underscore the degree to which I am not a legal scholar, I don't understand the substance of Scalia's dissent.)
I think it is not SCOTUS' job to clean up the congress created mess and Scalia was cranky because of that.
I think that Scalia strongly believed in laws are set in stone. So if there is some abmiguity or stupid language it is the Congress' fault and it is not up to SCOTUS to create laws on the fly by guestimating the congress intent.
Trump will pick sycophants, that's how he runs his businesses.
Lawrence vs Texas, Scalia is just being a bigot, plain and simple. There was nothing conservative about his opinion, unless the definition of conservative is being an asshole to the minority for doing things you merely don't approve of but cause no one harm. Trying to convince knowledgeable people he was a constuctionist is futile.
> unless the definition of conservative is being an asshole to the minority for doing things you merely don't approve of but cause no one harm
It isn't? :D
In all seriousness though... When I read this, I remembered a famous scene of Angela Merkel, a conservative (though more progressive than most conservatives).
Before the 2015 national elections in Germany, she appeared at a question time session and a citizen asked her about her stance on gay marriage. She hummed and hawed for a few moments, and then answered that she is "not comfortable with it".
Analysts interpreted her answer not as her personally disapproving of gay marriage, but as mirroring the feelings of the majority.
Some of what this guy is saying is moot because of the reprehensible tradition of plea bargaining in the United States. As far as I know (IANAL), most criminal accusations don't go to trial because the prosecutors throw everything they have at the defendant.
If you're accused of a crime, it's often crazy to try to defend yourself: if you try to do so and lose, it'll ruin your life. Better just to plead out and take a deal.
If the prosecutors can force you to gamble for your life and livelihood, it doesn't matter what evidence they have against you. The only way around the problem is to remain compliant and never get accused of anything.
> The only way around the problem is to remain compliant and never get accused of anything.
The issue with that is that it is becoming increasingly difficult to live a normal American life without breaking a few laws every now and then, and not even realizing it. The book's author touched on this during the interview, but basically more and more "everyday" actions are becoming criminalized over time.
Technically, committing a crime implies criminal intent, but that notion has been absent from our justice system for a very long time. Look at how many laws are on the books about "negligent" crimes, those committed not out of intent but out of ignorance or forgetfulness. Traffic laws are easy to pick on for this metric, since in most states the driving tests barely scratch the surface of the body of traffic law. In some states you can be jailed over any moving violation at the officer's discretion, and that combined with the general attitude of "don't fight the ticket, just pay it" means you've just become part of the system, and this stacks the deck against you making it easier to gain a conviction if you're accused of a more serious crime later in life.
> The issue with that is that it is becoming increasingly difficult to live a normal American life without breaking a few laws every now and then, and not even realizing it.
Second, I have an inside view -- I work for a law enforcement agency in a civilian position and have worked in this field for a total of fifteen years -- and what I've seen bears out what I actually said. Not necessarily three felonies a day, but as I said, most Americans unknowingly break a few laws every now and then just living a normal daily life. The problem is that the number of infractions has been steadily increasing over the past century, and soon the Dystopian concept of "everything you do is illegal" will begin to ring true.
Right, as I said, the bombastic claim of the title is hardly true but if you deduct that from the book it does claim the same as you: ordinary people with ordinary lives will break some federal regulations now and then. Peace :)
the vast majority of defendants plead guilty before trial because (1) there's a shit-ton of evidence of guilt and (2) they'll get a much better deal than going to trial. If you know you're going down, why not plead to three years now instead of five after trial?
Invoking your right to counsel as early as possible solves #1.
I know the media (and prosecutors themselves) like to portray prosecutors as zealous, aggressive advocates who go after crimes no matter how thing -- but the reality is that as a group they are political, timid and ass-covering. They only bring cases they know they can win because a loss is extremely embarrassing and sometimes career ending. And not coincidentally, this is part of the prosecutor's ethical obligation: to only bring cases where there is a ton of evidence of guilt.
Is it sad that I can visualize a scene where that's the right thing to do? Such as when the prices are clearly marked, and the person behind the counter is on parole (but hasn't violated it).
Honestly, that would depend on whereI was pulled over and whether or not I had been speeding.
If I get pulled over out-of-state for no apparent reason, I'm probably not saying anything other than my name, handing over my ID, and waiting for a ticket. An as soon as the cop asks me to leave the vehicle or asks about my reason for being where I am, I'm refusing to answer.
Some cops are more patient and compliant with the law than others. It does not matter how well you know the law, if you have someone that has a strong preference towards violence (e.g: asking for identification, then shooting you dead when you reach for your wallet = suspecting you are armed).
How far do you take this? If I see someone in a car throw some trash at a bicyclist, and then swerve and knock the cyclist off the road...should I not give a description of the car and driver to the police?
Or suppose a child disappears on the way home from school. Police ask people along the child's normal route if they saw her that day (they are trying to narrow down where she may have been abducted). I was out mowing the lawn that afternoon and did see her walk by, and know the time to within 5 minutes. Should I not tell the police?
In prior discussions of this video on other forums, people have told me that based on it they would in fact not say anything in the above examples. If people won't tell the police these kind of things, it is going to be a lot easier to persuade people to support pervasive public surveillance.
Yes. Remember that a lawyer only represents his client. The missing child is not his client. His client is the person on the street. That said, every interaction with police increasing your risk. If your only interest is in your own legal wellbeing, don't talk.
In the cases of things like missing kids, there are normally anonymous tip lines for missing children. Beware the situation where there is no tip line. Cops are not above claiming to be searching for a lost kid when in reality they are looking for people who were on the street at a particular time. "I didn't see her" is an admission that you were there, which may result in a not-good interrogation as to some other things that happened. You may now be on their list of suspects for whatever they are actually investigating.
When I lived in the UK I had a friend with mental issues and as a result he would come into police contact on a regular basis.
Most often than not he would be making some sort of claim that obviously wasn't true and the police would want to talk to someone more responsible just to confirm that this was a 'mental health issue' so they could walk away without fear of any comeback.
As a friend I was happy to take this role even though it could get embarrassing. On one occasion the officer concerned actually seemed to be concerned about my friends welfare. In most of the other instances (at least half a dozen times) all they wanted was an excuse to get the hell away.
A couple of times it was more sinister though and I got the feeling that the police were hinting that I was guilty of something. My friend has confirmed to me that on some occasions they would try to put words in his mouth. He acts like an idiot sometimes but he's no fool either.
As a consequence I have told my friend that if he gets into trouble with the police again he can't ask me to speak on his behalf. I worry what will become of him but I just don't have faith in the police anymore.
So, OK your examples are extreme, but I would be wary of talking to the police in any situation again.
Police officers have the informal authority to make your life miserable (detaining for 24hrs without cause, selective enforcement, the ability to lie both to you and the court and be taken at their word, etc). No lawyer is going to advise talking to the police, but there's clearly an element of selection bias in that. In cases that don't wind up requiring a lawyer, cooperation with the person who has this power over you is almost certainly to your benefit. The real question is how to draw the line, and all the lawyerly "never say a word to the police ever unless you're invoking the 5th" really doesn't help.
Most people just talk to the police. The overwhelming majority of interactions with police are benign.
Consider avoiding police interactions if you are black/latino and not a resident of the neighborhood where the interaction occurs; if the police are knocking on your door or doing something else that deliberately involves them confronting you; if you carry or have casual access to firearms or contraband; if you have any criminal record.
Statistically, most people don't fall into these buckets and thus don't land in the fact patterns that generate the majority of abusive interactions.
I know it's hard to believe on Internet message boards, but in majority-minority neighborhoods in the US, the primary complaint residents have with the police is that they aren't doing enough.
(I do not also mean to say that residents of black neighborhoods aren't also concerned that the police will casually murder them in tense/hostile confrontations, because that is a real concern as well).
72 comments
[ 3.1 ms ] story [ 137 ms ] threadIf you say it by not saying it, after answering a bunch of questions.
This shouldn't even be constitutionally allowed.
Q: Did you kill Alice?
A: No.
Q: Did you kill Bob?
A: No.
Q: Did you kill Carol?
A: silence
They can then make the argument in court that since you stopped answering questions at the 3rd one that you are trying to hide something. This is why the advice is to just straight up refuse to answer any questions without a lawyer. "I want a lawyer" is not refusing to answer the question, just delaying it, so may not be covered by the current precedent.
Also, I'd say this is not the sort of thing one should tldr.
How about "my lawyer would be happy to answer all your questions"? Does that work?
When you're having a conversation, we're conditioned to find long pauses awkward and uncomfortable. That's why when you start not saying anything during a conversation, the other person will jump in and start filling the dead air.
It's useful during negotiations, because the person will start jumping in with concessions, trying to make things less awkward, when you let silences stretch out when it's "your turn to talk".
Just remember, the police are not your friends. They want something out of you. Don't give them a single inch.
"I want a lawyer" or "I want my lawyer" and then shutting up has nothing difficult, impolite, awkward, or unrealistic about it.
If you're worried about politeness when the cops are trying to pin a crime on you, I really don't know what to say except think about how impolite it would be for them to arrest you.
My guess is that outside the USA your legal protections are likely similar or a bit weaker, but the cops are less likely to be antagonistic. (And even in the USA, it will depend on locality and all kinds of circumstances).
Various incentives exist for police and prosecutors to aggressively put people behind bars. I think these are stronger in the populist US, than in other rich democracies where beaurocratic respectability is more valued.
Any informants they place in your cell with you, regardless of you asking for a lawyer may continue to interrogate you as well. Your prison phone calls can also be recorded and used against you, again regardless if you've asked and not seen a lawyer so if you phone your job and make up an excuse why you won't be there on Monday morning, that excuse can be used against you in court. A well known trick is for the police to place you with an informant who offers you a cellphone, because typically you have to call 3-4 people when arrested (family/gf, job, a lawyer) instead of just the one phone call they have to give you (which they don't have to provide until days after you are arrested). This contraband phone will be recorded hoping you say something incriminating, or just hoping you lie so they can prove later you are a "known liar" since most people don't want to tell their employer they've just been arrested and will lie about it.
If we're comparing the US criminal justice system to other countries, another more fundamental problem we have is that we simply have more crime. Not "people are getting busted for weed" crime, but property crimes and violent crimes. That fact implicates a much broader spectrum of public policy critiques about the US than how we manage the criminal justice system.
Wow, just wow. Even when you choose to say nothing, that can be used against you as guilt. It really seems like the American way is guilty until proven innocent, and there will be no let up and everyone is in jail!
There are privately run prisons in the US, but they do not define the system. Incarceration is expensive --- so expensive that criminal justice reform is starting to become a bipartisan issue at the federal level.
That being said, there is still an enormous profit motive attached to much of the current criminal justice system. There are a huge number of people who make their living off of it (and often times a whole lot more than a living) and have a vested economic interest in continuing business as usual. To pick a couple of easy examples, in California, the union for prison guards is an enormously powerful lobby (smaller than the teacher's union but more politically powerful) and spends a huge amount of time and money pushing for longer sentences and more incarceration. The alcohol industry very much likes that the criminal justice system is locking people in cages when they choose to use a competing product and is lobbying very hard to keep marijuana illegal wherever it can. Prisoners are used to work at slave wages for large private companies who make a killing off of it.
So while I'll accept the dismissal of the private prison issue which is rarely significant but exhaustingly invariably raised in every single discussion even tangentially touching CJ, there's some meat to what GP is saying. And we're not quite anywhere near bipartisanship on CJ reform yet at least on a federal level; half the presidential candidates have decried any attempts to reform CJ and declared themselves the "law and order candidates"
Is there evidence that companies like AB InBev are campaigning against legalization? Also: marijuana has only a marginal effect on incarceration (contrary to popular belief drugs as a whole are minor fraction of the crimes people are imprisoned for, an marijuana is only a very small fraction of that fraction) --- so how big an impact can AB InBev be having on prison populations?
There are a lot of compelling narratives about incarceration that turn out not to be true when you consult the data. Again: Pfaff is a great resource for this stuff.
I agree that corrections officers unions have political clout. But I dispute the idea that they're a significant force for increased sentencing. What's probably really happening is that corrections officers work at understaffed, underfunded facilities that are left to fend for themselves against an onslaught of felony convictions generated by aggressive prosecutors. Of course they want bigger prisons! Are you reading a lot of stories about how state prisons are overprovisioned, with too many empty beds? I'm reading the opposite.
Nearly 50% of federal prisoners are in on drug charges. For state it's 16%. There were 700k marijuana arrests in 2014 alone. It's not enough to explain our CJ issues by itself but it's very significant.
And the subject here is not just explicit incarceration, it's profit motive associated with the criminal justice system: the CJ system is explicitly designed (among other things) as a deterrent system. Even if the number of (white) Marijuana users incarcerated is small, keeping it illegal pushes people away from it and towards the more dangerous drug, alcohol, according to some alcohol industry spokespeople at least, as per that article and many others.
The concerns I have with the unions have nothing to do with their pushing for better funded and larger prisons to house the prisoners we do have (which they most certainly do as well). If you take the California example, they fought hard in favor of three strikes (and succeeded!), they were BY FAR (by 4x) the biggest donor to 'No on 5' in 08 (and succeeded!)
Prison labor data is difficult to find -- I assume large companies aren't eager to make it known they use prison labor, but either way I'm just having trouble finding references with any kind of hard data at all positive or negative from a reasonable source. Whole foods made news when it stopped using prison labor. The BP oil spill was cleaned up in large part by inmates, not paid contractors or employees. AT&T laid off their call center workers and hired inmates in the 90s.
Also, what is Pfaff?
That ruling needs challenging. It runs contrary to the Miranda rights. The police explicitly state that you have the right to remain silent. They don't say that you need to invoke the right.
The purpose of Miranda, and the Fifth Amendment generally, is not to keep guilty defendants from incriminating themselves. It is to keep the State from using its coercive power to extract unreliable confessions from the accused. When an accused incriminates himself without the coercive power of the state being invoked, excluding the evidence does not serve the purpose of the Fifth Amendment. The Supreme Court has given a pretty broad reading to when the coercive power of the state is invoked, but has drawn the line just short of "any interaction with the police."
The state is assumed to be right, not cooperating is admission of guilt. They are "law and order" type who believe in vindictiveness and wrath when citizens won't respect police power.
It is well settled that the Fifth Amendment right against self-incrimination must be explicitly invoked:
> The privilege against self-incrimination "is an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U. S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who "`desires the protection of the privilege . . . must claim it'" at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration[384] , 273 U. S. 103, 113 (1927).
> That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610-611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11.
In this case, the defendant had not been read Miranda warnings because he had not been taken into custody. It was a voluntary questioning. He then started answering questions, but went silent when talking about the ballistics evidence. Thus, the whole case was about whether "he was exercising his Fifth Amendment privilege" or not. The Court decided that under the circumstances, he was not:
> Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and "was free to leave at any time during the interview." Brief for Petitioner 2-3 (internal quotation marks omitted). That places petitioner's situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that "[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment." Post, at 7-8 (opinion of BREYER, J.). The critical question is whether, under the "circumstances" of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not.
In US vs. Jones, Scalia again wrote the majority opinion enstablisbing that a GPS tracker on a car is a violation of the 4th.
We also have Riley vs. California, Hamdi vs. Rumsfeld (where Scalia'd dissent was joined by John Paul Stevens.)
My point is that we need justices that follow the Constitution and not justices that follow a party. I don't particularly trust Clinton to pick constitutionalist justices while Trump is a wildcard (he isn't even remotely conservative, so it's likely his picks would likely be more centrist to please his own centrist views without alienating the Republican voters.)
I don't like Trump or Clinton, but I think Trump picks will likely be more moderate than anyone Clinton might select.
However my opinion doesn't matter, what I'm trying to say is that a vote for Hillary doesn't mean a vote for judges that will rule correctly. It doesn't mean a vote against those judges either. But 'vote accordingly' is meaningless because there is no 'accordingly.' For example, look at Kagan's opinion in Ransom v. FIA Card Services.. She sided with the credit card company over a consumer in a bankruptcy case while Scalia was the only dissent in the 8-1 decision.
Vote accordingly.. ok how? Meaning, there is no such thing. "Liberal" justices aren't always "liberal" in ways that you might like and "conservative" doesn't always mean what you think. The court is far more nuanced. A balanced court is far safer than one ideologically disposed to one extreme or another. It would be very dangerous to have an entire court of John Paul Stevenses just as it would be dangerous to have a court filled with Clarence Thomases.
What am I not seeing? (To be fair, and to underscore the degree to which I am not a legal scholar, I don't understand the substance of Scalia's dissent.)
I think that Scalia strongly believed in laws are set in stone. So if there is some abmiguity or stupid language it is the Congress' fault and it is not up to SCOTUS to create laws on the fly by guestimating the congress intent.
Lawrence vs Texas, Scalia is just being a bigot, plain and simple. There was nothing conservative about his opinion, unless the definition of conservative is being an asshole to the minority for doing things you merely don't approve of but cause no one harm. Trying to convince knowledgeable people he was a constuctionist is futile.
It isn't? :D
In all seriousness though... When I read this, I remembered a famous scene of Angela Merkel, a conservative (though more progressive than most conservatives).
Before the 2015 national elections in Germany, she appeared at a question time session and a citizen asked her about her stance on gay marriage. She hummed and hawed for a few moments, and then answered that she is "not comfortable with it".
Analysts interpreted her answer not as her personally disapproving of gay marriage, but as mirroring the feelings of the majority.
This is where a cop comes up after the 'slick lawyer' (who is giving fantastic advice the whole time) and completely agrees with him.
If you're accused of a crime, it's often crazy to try to defend yourself: if you try to do so and lose, it'll ruin your life. Better just to plead out and take a deal.
If the prosecutors can force you to gamble for your life and livelihood, it doesn't matter what evidence they have against you. The only way around the problem is to remain compliant and never get accused of anything.
The issue with that is that it is becoming increasingly difficult to live a normal American life without breaking a few laws every now and then, and not even realizing it. The book's author touched on this during the interview, but basically more and more "everyday" actions are becoming criminalized over time.
Technically, committing a crime implies criminal intent, but that notion has been absent from our justice system for a very long time. Look at how many laws are on the books about "negligent" crimes, those committed not out of intent but out of ignorance or forgetfulness. Traffic laws are easy to pick on for this metric, since in most states the driving tests barely scratch the surface of the body of traffic law. In some states you can be jailed over any moving violation at the officer's discretion, and that combined with the general attitude of "don't fight the ticket, just pay it" means you've just become part of the system, and this stacks the deck against you making it easier to gain a conviction if you're accused of a more serious crime later in life.
Well that has been the case for a while now, the Three Felonies A Day book https://smile.amazon.com/Three-Felonies-Day-Target-Innocent/... is from 2009. Although of course the bombastic claim in the title is disputed http://skeptics.stackexchange.com/questions/22530/does-the-a... it essentially claims the exact same as you.
First, I never said "three felonies a day".
Second, I have an inside view -- I work for a law enforcement agency in a civilian position and have worked in this field for a total of fifteen years -- and what I've seen bears out what I actually said. Not necessarily three felonies a day, but as I said, most Americans unknowingly break a few laws every now and then just living a normal daily life. The problem is that the number of infractions has been steadily increasing over the past century, and soon the Dystopian concept of "everything you do is illegal" will begin to ring true.
Invoking your right to counsel as early as possible solves #1.
I know the media (and prosecutors themselves) like to portray prosecutors as zealous, aggressive advocates who go after crimes no matter how thing -- but the reality is that as a group they are political, timid and ass-covering. They only bring cases they know they can win because a loss is extremely embarrassing and sometimes career ending. And not coincidentally, this is part of the prosecutor's ethical obligation: to only bring cases where there is a ton of evidence of guilt.
(A police officer walks into a doughnut shop.)
- Good day Sir, how much these doughnuts cost?
- I want a lawyer.
Yeah, it is sad.
If I get pulled over out-of-state for no apparent reason, I'm probably not saying anything other than my name, handing over my ID, and waiting for a ticket. An as soon as the cop asks me to leave the vehicle or asks about my reason for being where I am, I'm refusing to answer.
Or suppose a child disappears on the way home from school. Police ask people along the child's normal route if they saw her that day (they are trying to narrow down where she may have been abducted). I was out mowing the lawn that afternoon and did see her walk by, and know the time to within 5 minutes. Should I not tell the police?
In prior discussions of this video on other forums, people have told me that based on it they would in fact not say anything in the above examples. If people won't tell the police these kind of things, it is going to be a lot easier to persuade people to support pervasive public surveillance.
In the cases of things like missing kids, there are normally anonymous tip lines for missing children. Beware the situation where there is no tip line. Cops are not above claiming to be searching for a lost kid when in reality they are looking for people who were on the street at a particular time. "I didn't see her" is an admission that you were there, which may result in a not-good interrogation as to some other things that happened. You may now be on their list of suspects for whatever they are actually investigating.
You do not want to be the last person who saw a missing kid.
Most often than not he would be making some sort of claim that obviously wasn't true and the police would want to talk to someone more responsible just to confirm that this was a 'mental health issue' so they could walk away without fear of any comeback.
As a friend I was happy to take this role even though it could get embarrassing. On one occasion the officer concerned actually seemed to be concerned about my friends welfare. In most of the other instances (at least half a dozen times) all they wanted was an excuse to get the hell away.
A couple of times it was more sinister though and I got the feeling that the police were hinting that I was guilty of something. My friend has confirmed to me that on some occasions they would try to put words in his mouth. He acts like an idiot sometimes but he's no fool either.
As a consequence I have told my friend that if he gets into trouble with the police again he can't ask me to speak on his behalf. I worry what will become of him but I just don't have faith in the police anymore.
So, OK your examples are extreme, but I would be wary of talking to the police in any situation again.
Police officers have the informal authority to make your life miserable (detaining for 24hrs without cause, selective enforcement, the ability to lie both to you and the court and be taken at their word, etc). No lawyer is going to advise talking to the police, but there's clearly an element of selection bias in that. In cases that don't wind up requiring a lawyer, cooperation with the person who has this power over you is almost certainly to your benefit. The real question is how to draw the line, and all the lawyerly "never say a word to the police ever unless you're invoking the 5th" really doesn't help.
Consider avoiding police interactions if you are black/latino and not a resident of the neighborhood where the interaction occurs; if the police are knocking on your door or doing something else that deliberately involves them confronting you; if you carry or have casual access to firearms or contraband; if you have any criminal record.
Statistically, most people don't fall into these buckets and thus don't land in the fact patterns that generate the majority of abusive interactions.
I know it's hard to believe on Internet message boards, but in majority-minority neighborhoods in the US, the primary complaint residents have with the police is that they aren't doing enough.
(I do not also mean to say that residents of black neighborhoods aren't also concerned that the police will casually murder them in tense/hostile confrontations, because that is a real concern as well).