For quite sometime, we have been advising our clients who are subject of criminal investigations or prosecutions to remove and/or censor information they may have posted on social network sites, e.g. Facebook, Myspace, etc. There are many instances where government will review content on these sites to collect information to further enhance its investigation or its prosecution.
Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.
The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.
For more information on similar issues visit www.ftlucianolaw.com
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday, January 15, 2009
Monday, January 12, 2009
Increased Use of Cocaine in the White Teenage Community
The University of Michigan recently produced a study that disclosed that over the last seven years, the county has experienced a 24% decline in illicit drug use. There were two limited exceptions. The most startling of which was the use of cocaine by young Caucasians. Specifically, it was found that young whites are four times more likely to use cocaine than their black counterparts. In 2006, the ratio of whites admitted to drug rehabilitation for cocaine or crack addiction was approximately ten times greater than black admissions. It gets worse. According to the study, white teenagers fail to see the serious risks association with cocaine experimentation, which by necessary implications, may have the potential of increasing use even further.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The Crack in the Crack Cocaine Sentecing Scheme
In December of 2007, the United States Sentencing Commission lowered the sentencing exposure for those individuals convicted of distributing crack cocaine because the existing scheduling scheme was intellectually defective and created a racially driven imbalance between distributors and users of crack cocaine (i.e. black and Hispanic)and distributors and users of powder cocaine (i.e. moneyed Caucasians). In addition, the Commission agreed to roll back the harshness of crack conviction penalties retroactively. The decision to review prior sentencing for retroactive application was delayed, however, until March, 2007 to enable the courts to prepare for the expected tsunami of applications for reconsideration.
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
Monday, December 8, 2008
New Jersey's Graves Act: Well Needed but Overreaching
The recent arrest of Plaxico Burress has reawakened the criminal justice system's preoccupation with weapon offenses. Over 17 years ago, New Jersey enacted the so-called Graves Act named after a crusading Mayor and State Senator from Paterson, New Jersey whose name was Frank X. Graves.
By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.
While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.
Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.
By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.
While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.
Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.
Wednesday, November 26, 2008
The Decriminalization of Marijuana
On November 4, 2008, the voters of Massachusetts approved an initiative to decriminalize possession of a small amount of marijuana. In some districts, the voters favored the initiative by 65%. This progressive proposition is consistent with legislation enacted in California quite some time ago.
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
Criminal Negligent Homicide?
Recently legislation has been sponsored that seems to create the crime of negligent homicide.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
Historically the law has maintained a natural reluctance to impose criminal liability on the basis of negligent conduct. New Jersey's criminal code however, has created criminal offenses based on an actor's negligence. Currently, the law defines negligent criminal conduct to require a gross disregard for the risks associated with the actor's conduct. This new proposed legislation seems to clarify decisional law that authorizes a homicide conviction on the basis of gross negligence.
The rub with this new form of the statute is that, although a conviction would require third degree penalties with a sentencing range of three to five years, it will also authorize an eighteen month minimum mandatory period of incarceration. This term of parole ineligibility is consistent with the unfortunate and inexplicable penchant of some of our legislators to continue to maintain a blood-thirsty philosophy of punishment in the criminal justice system. Indeed, when it is recognized that the legislature has now prohibited punitive damages to be assessed against arrogant industrialists who create devastating loss because of their gross negligence, the current form of the statute blinks at reason.
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