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As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized. Continue reading

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In December 2016, a federal policy-making body known as the Judicial Conference of the United States made it much easier for federal law enforcement to hack into private computers and mine personal data regardless of the computer’s location. It did this simply by changing Rule 41 of the Federal Rules of Criminal Procedure. The Supreme Court approved the changes in April 2016, and Congress recently declined to take steps to block or delay the changes. That means that the changes have now gone into effect, and law enforcement now will have a much easier time obtaining warrants to search computers—and possibly also have an easier time surviving constitutional challenges to those warrants.

What is Rule 41, And What Did the Change Do?

Federal Rule of Criminal Procedure 41 governs procedures related to search warrants and seizures. It governs what law enforcement must do in order to obtain and then execute a search warrant; what a magistrate judge must do to issue a warrant; and what a person must do to move for the return of property or suppression of evidence unlawfully obtained.

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At a time of increasingly public protests, the Supreme Judicial Court recently reaffirmed its commitment to protecting speech here in Massachusetts.  Under Masschusetts’s Anti-Strategic Litigation Against Public Participation law (“Anti-SLAPP”), defendants can move to dismiss a lawsuit filed against them if that lawsuit targets their attempt to influence a government body or seek help from one.   It had always been clear that when a person attempts to influence the government on their own behalf – in other words, to vindicate their own interests – the statute protected that activity.  But in Cardno ChemRisk v. Cherri Foytlin et al., the Court made clear that the statute extends to citizens’ right to advocate not just for themselves, but also for others.

Massachusetts is one of twenty-eight states with Anti-SLAPP protection.  These statutes buttress a basic constitutional right:  The First Amendment of the United States Constitution protects the right “to petition the Government for a redress of grievances.”  That means that every person has a right to influence government bodies – by, for example, protesting in the town square or testifying at a hearing – without fear of reprisal.  But citizens’ protests can often frustrate powerful, non-governmental interests.  And when they do, those powerful interests may use courts to try to stop or stifle the speech.  Anti-SLAPP statutes protect citizens from those suits. Continue reading

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About a year and a half ago we mentioned the Owen Labrie case in New Hampshire, where an 18-year-old senior at the St. Paul School was charged with a variety of crimes, including forcible sexual assault, of a 15-year-old at the school. To briefly review the case: Labrie was alleged to have been participating in a longstanding tradition, “senior salute,” where male seniors competed to see who could get sexual favors from the most underclassmen. The victim in the case alleged that Labrie had invited her out as part of the senior salute, then raped her in an attic in the school.In August 2015 a jury acquitted Labrie of the felony forcible sexual assault charge, but found him guilty of three misdemeanor counts of statutory rape, and the felony of using a computer to lure a minor for sex. The latter conviction requires Labrie to register for life as a sex offender.

Throughout the trial, there was criticism from some in the legal community about both the charges brought, and the way the case was being handled by Labrie’s lawyers. As news reports noted, Labrie fired at least three lawyers before settling on famous Boston criminal defense lawyer J.W. Carney and Worcester lawyer Samir Zaganjori, and rejected a number of plea deals that would have prevented him from having to register as a sex offender for the rest of his life. One article reported that a law-enforcement official involved in the case said that if Labrie had acknowledged wrongdoing and expressed regret he would have likely been sent into a sex-offender program without being convicted of any of the crimes with which he was charged. Former federal judge and Harvard Law School professor Nancy Gertner told a reporter, “This was a fundamentally ‘untriable’ case,” and indicated surprise that the defense had taken the case to trial. Continue reading

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Over the last several years, the Massachusetts criminal justice system has been rocked by misconduct in state-run drug labs. First, and so far most significant, Annie Dookhan, a chemist at the Hinton State Lab in Jamaica Plain, tainted over 42,000 state convictions by employing several different scientific shortcuts to boost her efficiency and productivity. Rather than meticulously testing each sample to determine whether or not it contained cocaine, heroin, or other suspected drugs, her practices over several years included “dry-labbing,” or combining samples from different cases and testing them all at once, then recording the results under each case; fabricating records that she tested and calibrated lab equipment as required by protocol, in order to save time; and contaminating samples that tested negative with drugs so that they would test positive. The Supreme Judicial Court has addressed cases involving Dookhan several times already. As if this were not disturbing enough, a second chemist at a different state lab, Sonja Farak, undermined the integrity of thousands of drug cases in Western Massachusetts over 8 years by using methamphetamine, cocaine, and a variety of other drugs while at work; stealing and consuming both standard comparison drug samples and drugs that were seized by police; and using lab equipment to manufacture crack cocaine. Between Dookhan and Farak, prosecutors have (presumably unknowingly) used fabricated or unreliable evidence to convict or induce guilty pleas from thousands of people in Massachusetts. Continue reading

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Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.

In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.

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In my last blog post, I discussed some of the steps Massachusetts has taken in recent years to reform the state’s criminal justice system and the problems that remain in that system.  In this post, I will discuss some reforms that Massachusetts should enact in the next legislative session.

For starters, Massachusetts must abolish mandatory minimum sentencing for drug offenses once and for all.  Despite the liberal political leanings of many in state government, the state’s District Attorneys somehow remain staunchly opposed to any such reform.  According to the title of a 2015 letter in the Boston Globe signed by nine of the Commonwealth’s DAs: “Opponents of mandatory minimum sentencing fail to account for reality.”  That’s a bold choice of headline, particularly once you consider that those reality-ignoring opponents include Supreme Judicial Court Chief Justice Ralph Gants, who systematically tore apart the arguments in favor of mandatory minimums in a 2015 speech at UMass-Boston, as well as Catholic leaders from across the Commonwealth. Continue reading

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At the federal level, efforts at criminal justice reform have been trapped in a legislative logjam.  Despite considerable bipartisan consensus on the subject – including the backing of the notorious Koch brothers, who fund Republican candidates across the country – no significant legislation has passed through the United States Congress.  That, despite the fact that the United States currently houses 2.2 million people in our prisons and jails.  That translates to an incarceration rate of 693 per 100,000 people – a rate far in excess of Iran, Zimbabwe, and Singapore.  A recent report by the Brennan Center for Justice concluded that 576,000 people who are currently incarcerated could be freed with little-to-no impact on public safety, at a savings of $20 billion annually.  According to the report, 364,000 prisoners could be subject to alternatives to incarceration – treatment, community service, or probation – while another 212,000 have already served lengthy prison terms and could be directly released into the community.

At the federal level, the only steps to remedy the effects of our draconian system have come from the executive branch.  Attorneys General Holder and Lynch have told their line prosecutors to pursue fewer mandatory minimum sentences, and Holder urged the U.S. Sentencing Commission to apply a recent reduction in drug sentences retroactively to reduce the sentences of thousands of those currently incarcerated.  In addition, President Obama has commuted the sentences of 1,176 prisoners and issued 148 pardons – far more than any other president in history.  But even those historic numbers are a mere drop in the proverbial bucket.  With a federal prison population of 190,058 inmates, Obama’s clemency numbers constitute about 0.6% of that group.  Those numbers will likely increase a bit before January 20th, but executive clemency is a poor substitute for true legislative reform. Continue reading

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Earlier this month, my colleague blogged about concerns that a weaker federal Department of Education (DOE) in the Trump Administration would mean less protection against discrimination and harassment for minority students. Under Obama the DOE took strong, sometimes controversial, positions in the name of anti-discrimination, for example, issuing numerous guidance documents instructing schools on how to address sexual harassment and sexual assault, and interpreting Title IX to protect transgender students. In the views of its critics, DOE often went too far in issuing these rules, both because it circumvented the normal rule-making procedures for administrative agencies, and because in many instances its guidance letters seemed to directly conflict with the free speech and due process rights of students.

It seems safe to assume that sexual harassment prevention is not high on Trump’s priority list. During the presidential campaign videos surfaced of him discussing sexually assaulting women and more than a dozen women came forward to accuse him of having done just that, and his sons — who played key roles in his campaign — have both indicated that women who do not like being sexually harassed either should not work, or should find a different job. Given that fact, and his stated antipathy to the DOE, it seems quite likely that his administration will do an about-face on both the scope of the DOE’s work, and its positions on key title IX issues. But will the administration’s positions change anything on campus?

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In late November, a federal district court in Texas enjoined the Department of Labor from implementing and enforcing a new rule that would have made it more difficult for employers to claim that workers do not qualify for overtime pay.  But the Texas court may not have had the power to apply its order nationwide, and Massachusetts employees may still be able to collect overtime under the new rule.

Under the Federal Labor Standards Act, every employee must be paid a minimum hourly wage.  Employees are also entitled to overtime pay at one and a half times that rate for all hours worked above forty per week.  However, the statute exempts certain types of jobs from the requirement to pay overtime.  One of those exemptions is for any work done in a “bona fide executive, administrative, or professional capacity,” and is sometimes referred to as the “white collar exemption.” The statute grants the Department of Labor the authority to issue rules defining what exactly qualifies as a “white collar” job. Since 1940, the Department has defined the exemption, in part, by setting a minimum salary cap under which all workers must be paid overtime – in other words, anyone paid less than that set figure cannot qualify as an exempt “executive, administrative, or professional” employee.  In 2014, after extensive notice and comment from outside stakeholders, the Department of Labor raised the salary cap from $23,660 to $47,476.  The rule was set to go into effect on December 1, and experts estimated that more than 4 million additional workers would now qualify for overtime pay. Continue reading

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