​Hello Street Law Advocates, 

When thinking about the Fourth Amendment and the protections that it offers, most Americans are quick to think about the more glaring protections. One might imagine the police attempting to search their home without a warrant or the police asking to search their car during a traffic stop. While these are great examples of some of the actions the Fourth Amendment protects against, for other actions it isn’t so clear. For example, does the Fourth Amendment protect against data collection by modern technologies? Some of these technologies are intuitive, things like phone call data, phone location data, and license plate readers. However, some things are less intuitive, things like your doorbell camera feed, face scanners, AI social media scrubbing. To tackle the question of whether the Fourth Amendment protects against these things, we can look at what courts have said in the past and use it to try to envision what the future of Fourth Amendment protections will look like. 

As technology advances, the prevalence of non-physical personal data has expanded dramatically. Information like location data gathered by your phone or smart car, health data gathered by a smart watch, and even video and audio gathered by home surveillance systems and video doorbells are all examples of non-physical personal information. This information is collected by third parties, stored by those parties, and used for their purposes. Information like this can be extremely valuable to law enforcement and is often unprotected by the Fourth Amendment’s warrant requirement. [1] 

First, we must look at how courts have ruled on this type of information previously, and what kind of protection that information should receive under the Fourth Amendment. Historically, information that an individual willingly shares with a third party is subject to what is known as the third-party doctrine. The third-party doctrine essentially states that any information that a person willingly shares with a third party is not subject to Fourth Amendment protection. [2] The doctrine was fleshed out in two major Supreme Court cases in the 1970’s — United States v. Miller and Smith v. Maryland. [3] In both cases, the Court ruled that information shared with a third party would not receive Fourth Amendment protection. [4] This went on for a while without much controversy — that is until the mid 2000’s. 

With the rise of mobile telephones, wearable tech, and people generally creating more data that was being shared with third parties, law enforcement saw an opportunity. Due to the third-party rule, law enforcement was able to get their hands on all this data unchallenged. This data was hugely valuable to law enforcement because it provided them with a plethora of personal information about individuals without the need for a warrant. Carpenter v. United States reeled in the seemingly free reign that law enforcement had under Miller and Smith.

In Carpenter v. United States, the Court ruled that while the third-party doctrine did cover information that was voluntarily shared, an individual's phone location data was not covered under the doctrine. [5] The Court reasoned that since cell phones have become so commonplace in our lives, coupled with the fact that phones are designed in a way that they must collect and share data gathered with third parties — the information could not be considered voluntarily shared. [6] Carpenter was the first time that the United States Supreme Court ruled that the third-party doctrine’s power was not absolute. [7] Although the Court rejected applying the third-party rule from Miller and Smith, the Court did not overrule those decisions, leaving the third-party rule intact at least for now.

The Carpenter decision gives us the ability to look ahead and make some predictions about the future of Fourth Amendment protections to non-physical data. As more and more people access smart cars, wearable tech, and home surveillance systems, the data collected by these systems will only increase and courts will be left grappling with the question of whether or not this data should be subject to Fourth Amendment protections. If the Carpenter ruling is any indication, it shows that courts may change their ideas about how third-party rule should be applied depending on the degree of privacy individuals. Technology which collects and shares data — yet is so essential to our lives — may force courts to broaden the scope of Fourth Amendment protections in order to strike a balance.  Court are having to find a middle ground between allowing the government to carry out its law enforcement functions while at the same time keeping the rights of Americans protected. 
​
Sources: 
1. The Fourth Amendment in the Digital Age, The Brennan Center for Justice, https://www.brennancenter.org/our-work/policy-solutions/fourth-amendment-digital-age
2. Third Party Doctrine, Injustice for Justice, https://ij.org/issues/ijs-project-on-the-4th-amendment/third-party-doctrine/ 
3. The Third Party Doctrine and The Fourth Amendment, Eisner Gorin LLP, https://www.thefederalcriminalattorneys.com/third-party-doctrine 
4. Id. 
5. Carpenter v. United States, 585 U.S. ___ (2018) 
6. Id. 
7. Explaining the Fourth Amendment: What counts as persons, houses, papers, and effects?, Pacific Legal Foundation, https://pacificlegal.org/explaining-the-fourth-amendment-what-counts-as-persons-houses-papers-and-effects/#part-1V:-Effects

Hello Street Law Advocates, 

In the recent news, the Trump administration has begun widespread arrests and deportations of undocumented Immigrants. To address this issue, it is important to fully understand what, if any constitutional rights apply to undocumented immigrants.

At the onset, when it comes to police interactions undocumented immigrants generally have the same rights as citizens. Undocumented immigrants have the right to remain silent, the right to an attorney, and have the same right against warrantless searched and seizures like everyone else.[1] The issue arises when considering immigration papers. These documents are specific to the individual, and can include a visa, passport, green card, or employment authorization card. When prompted, immigrants must show their immigration papers.[2]If you do not have these documents, you will likely be detained and should ask for an attorney as well as assert your Fifth Amendment rights. [3]

Additionally, immigrants have the same right to due process that U.S. citizens have.[4]  These rights stem from the Fifth Amendment, and states that no person can be deprived of life, liberty, or property without due process of law. [5]Specifically, the Supreme Court of the United States in Reno v. Flores dictated that it is well established law that immigrants are entitled to due process in deportation proceedings.[6] This holding, however, is not as protective as one would imagine, and really only pertains to the right to a public hearing and to an attorney.[7] Further, the normal rules of evidence that govern other court proceedings do not apply. Documents do not have to be properly authenticated, and hearsay, or typically inadmissible out of court statements, are admissible.[8] The right to an attorney is also severely limited. Deportation proceedings can be accomplished through a civil proceeding, which indicates that the right to counsel do not apply.  Even when they are criminal, the government only has to provide an attorney for felony charges.[9] It is worthy to note that the Trump administration has implemented a policy to bring criminal charges against undocumented immigrants, which has caused a decrease in civil deportation proceedings. [10]
​
It is important to conclude that even with the knowledge of your rights, it is important to know what legal resources are available to you, as they can assist with obtaining a low cost and effective legal representation. This will depend on location, but a quick google research should point you in the right direction by providing local immigration law offices and applicable social services.


[1] Know Your Rights | Immigrants' Rights,  ACLU, https://www.aclu.org/know-your-rights/immigrants-rights (last visited Mar. 22, 2025).
[2] Id.
[3] Id.
[4] Gretchen Frazee, What constitutional rights do undocumented immigrants have?, PBS https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have (last visited Mar. 22, 2025).
[5] U.S. Const. amend. V. 
[6] “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings”. Reno v. Flores, 507 U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100–101 (1903)).
[7] Frazee, supra note 4. 
[8] Id.
[9] Id.
[10] Frazee, supra note 4.

​Hello Street Law Advocates,
 
A person’s property receives a lot of protection in the United States. Indeed, the Fifth Amendment to the United States Constitution states that a person may not “be deprived of life, liberty, or property, without due process of law . . . .”[1] With such a foundational right enshrined in the Constitution, one may be led to think that a person would need to be convicted of some crime in court to justify their property being taken. Some may be surprised to learn then that there exists a mechanism in the United States to separate a person from the legal ownership of their property based on the mere suspicion that the person had used the property to aid in the commission of a crime — no finding of actual guilt required.[2] Through this process, police may seize a person’s property without a guilty verdict against the “defendant” and the police may keep the property until the person proves themselves innocent of the suspected crime, turning the concept of “innocent until proven guilty” on its head.[3]

This mechanism is known as Civil Asset Forfeiture or more colloquially as “civil forfeiture.” Civil forfeiture is a favored tool of law enforcement agencies because it not only allows law enforcement to seize the property of individuals who have yet to be found guilty of a crime, but also because law enforcement gets to keep a large portion of the proceeds gained through the eventual sale of the seized property. 

In Iowa, for example, law enforcement may receive up to ninety percent of the value of forfeited property as a kickback for their participation in the forfeiture.[4] These forfeiture actions are big business for law enforcement, having brought in reportedly $68.8 billion nationally since 2000.[5] Perceptive readers may notice a potentially alarming consideration with this program. If law enforcement is eligible to receive a portion of the proceeds from a forfeiture, are law enforcement not incentivized to engage in as many forfeitures as possible?

Various public interest and civil rights groups have questioned the legality, fairness, and effectiveness of civil forfeiture for particularly this reason. In their view, civil asset forfeiture is an unjust system that encourages law enforcement to take property from citizens to bolster the budgets of law enforcement agencies. Even worse, those who have their property taken from them are forced to expend their own money to get their property back even though they have not been convicted of any crime. 

Many states have taken some action to curtail this system and reduce the effect it has on their own citizens. For instance, Iowa attempted a major reform effort of civil forfeiture in 2017.[6] Iowa’s forfeiture reform included added protection for property owners, including a requirement for conviction if the seized property is worth less than $5,000 and a higher burden of proof for the state to succeed in forfeiting property.[7] While these reforms may be effective in a vacuum, law enforcement often use a federal loophole to get around state reforms and continue to engage in forfeiture in the very same way they had before the state enacted its reforms.[8] This loophole is known as the federal equitable sharing program, and it allows law enforcement to seize property under state law but request that the federal government undertake the forfeiture under federal law that is much less restrictive than state law.[9] Through this loophole, law enforcement evade state restrictions on the use of civil forfeiture, and continue to receive up to eighty percent of the value of the forfeited property.[10] Iowa failed to address this loophole in its 2017 reform effort, thus compromising the effectiveness of the whole reform effort.

Iowa has signaled its intention to reform civil forfeiture, a practice that is widely regarded as unjust and ineffective.[11] Until the state closes this federal loophole by restricting law enforcement from transferring seized property to the federal government for forfeiture, it is unlikely that law enforcement in Iowa will be constrained by state law. Failing to close the loophole leaves open an avenue for law enforcement to avoid state law. As law enforcement have a financial stake in forfeiture, they are not only empowered to avoid state laws that would restrict this financial gain, but they are incentivized to do so.


[1] U.S. Const. amend. V.
[2] Ending Civil Asset Forfeiture Abuse, Stand Together Tr., https://standtogether.org/newsroom/constitutionally-limited-government/civil-asset-forfeiture-statistics-abuse-stand-together-trust.
[3] Makena Bauss, Innocent Until Proven Guilty? Not When It Comes to Your Stuff, Am. C.L. Union Me. (Dec. 5, 2018, 7:15 PM), https://www.aclumaine.org/en/news/innocent-until-proven-guilty-not-when-it-comes-your-stuff.
[4] Iowa Code § 809A.17.
[5] J. Justin Wilson, New Report Finds Civil Forfeiture Rakes in Billions Each Year, Does Not Fight Crime, Inst. For Just. (Dec. 15, 2020), https://ij.org/press-release/new-report-finds-civil-forfeiture-rakes-in-billions-each-year-does-not-fight-crime-2.
[6] Ryan Summers, Iowa Places Limits on Civil Asset Forfeiture Practices, Am. Legis. Exch. Council (Apr. 24, 2017), https://alec.org/article/iowa-places-limits-on-civil-asset-forfeiture-practices.
[7] Mike Maharrey, New Iowa Law Reforms Asset Forfeiture, But Leaves Federal Loophole Wide Open, Tenth Amend. Ctr. (May 20, 2017), https://blog.tenthamendmentcenter.com/2017/05/new-iowa-law-reforms-asset-forfeiture-but-leaves-federal-loophole-wide-open.
[8] Id.
[9] Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Policing for Profit: The Abuse of Civil Asset Forfeiture 48 (Inst. For. Just. ed., 3rd ed. 2020)
[10] Id.
[11] Nick Sibilla, Poll: Most Americans Want Congress to Abolish Civil Forfeiture, FORBES (Nov. 16, 2020, 10:34 AM), https://www.forbes.com/sites/nicksibilla/2020/11/12/poll-most-americans-want-to-defund-civil-forfeiture.

​Hello Street Law Advocates,

Due to the recent events regarding the murder of United Healthcare CEO, Brian Thompson, the idea of jury nullification has gained mainstream popularity, placing it in the common conversations beyond the circles of criminal justice reform advocates.[1] But what exactly is jury nullification? 

For starters, the concept of jury nullification is incredibly controversial, and judges are unlikely to allow a nullification argument in front of a jury and in some instances will remove a nullifying juror.[2] Essentially, nullification is when, despite the prosecution proving beyond a reasonable doubt that a defendant committed a charged offense, the jury still acquits them, or in other words, finds the defendant not guilty for reasons other than a believer in their innocence, or a belief the prosecution did not meet their burden.[3]

​This controversy is not new and has roots dating back to 17th century England.[4] Scholars recognize the first trial where jury nullification was implemented as the trial of William Penn in 1670.[5] Penn, a Quaker, was arrested for “preaching seditiously and causing a great tumult of people”. [6]  During trial, Penn did not contradict the assertion that he was preaching in public but argued that his acts where lawful.[7] The jury agreed, and found Penn not guilty, which angered the judge who ordered them to reconsider multiple times to no avail.[8] While the jury refused to apply what they thought an unjust law which prohibits Quakers from publicly preaching and praying, they were all ultimately imprisoned for not returning a ‘lawful’ verdict.[9]
​
Colonial America soon followed with the acquittal of John Peter Zenger, who was accused of publishing seditionary material without the consent of the British.[10] Zenger’s publication criticized the then Royal Governor of New York for removing the colony’s chief justice, who recently decided against the Governor in a recent case. [11] The Governor charged him with seditious libel, which at that time the fact that a claim was true was no defense.[12] Despite the fact that Zenger was guilty given that there was no defense, the jury ignored the English common law and refused the convict him. [13] Nullification was also used in pre-civil war America to derail the fugitive slave act.[14] Most notably, in 1851, a mob of abolitionists stormed the local courthouse in Boston to rescue Shadrach Minkins, a escaped slave, from being returned into bondage.[15] After the mob succeeded, and Minkins was able to escape to Canada, the Federal government indicted seven co-conspirators.[16] Because of jury nullification, no co-conspirator was ever convicted.[17]

So, if jury nullification is rooted in our country’s history and tradition, then what is all the fuss about? Some advocates of jury nullification claim that this is a part of a defendant’s 6th Amendment rights to a jury trial, while its critics claim that it is undemocratic because it allows average citizens to void duly enacted legislation.[18] In fact, multiple federal circuit courts have refused to hold that jury nullification is a part of a defendant’s constitutional rights and legislatures have refused to provide nullification statutory protection.[19] The entire system from jury selection to requesting jury instructions works to eliminate the concept that a jury can validly acquit even when overwhelming evidence of a criminal violation exists.[20] But there is a silver lining for jury nullification advocates. The no impeachment rule protects jury deliberations from scrutiny after a final verdict.[21] This effectively allows for a jury to acquit a defendant, and the government can do nothing about it except for certain circumstances such as racial or other discrimination.[22] Whether this is a social good or a social evil is for each person to decide. 


[1] Safia Samee Ali, Could fandom cause jury nullification in Luigi Mangione trial? The Hill, (Jan. 1, 2025), https://thehill.com/regulation/court-battles/5070319-luigi-mangione-unitedhealthcare-shooting-jury-nullification/.
[2] United States v. Thomas, 116 F.3d 606 (2d Cir.1997).
[3] Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996)
[4] Penn & Mead's Case, 6 Howell's State Trials 951 (1816) (1st ed.1783).
[5] Id.
[6] William Penn, Criminal Justice, and the Penn-Mead Trial, Quakers in the World, https://www.quakersintheworld.org/quakers-in-action/96/William-Penn-Criminal-Justice-and-the-Penn-Mead-Trial (last visited Jan. 14, 2025).
[7] Id.
[8] Id.
[9] Id.
[10] A Brief Narration of the Case and Trial of John Peter Zenger 78 (J. Alexander ed.1963)
[11] Argument in the Zenger Trial (1735), The National Constitution Center, https://constitutioncenter.org/the-constitution/historic-document-library/detail/andrew-hamilton-argument-in-the-zenger-trial-1735#:~:text=In%20the%20end%2C%20the%20jury,that%20the%20jurors%20deemed%20unjust.(last visited Jan. 14, 2025).
[12] Id.
[13] Id.
[14] Naomi Gilens, It’s Perfectly Constitutional to Talk About Jury Nullification, ACLU, (Jan. 22, 2019), https://www.aclu.org/news/free-speech/its-perfectly-constitutional-talk-about-jury-nullification.
[15] Wright, Lawson, Originalism and Jury Nullification in America: A Legal Basis for the Restoration of a Lost Right, 3 Prin. L. J _ (2024)
[16] Id.
[17] Id. 
[18] Conaway, Mutz & Ross, Jury Nullification: A Selective Annotated Bibliography, 39 Val. U. L. Rev. 393 (2004); Bressler, Reconstruction and Transformation of Jury Nullification, 78 U. Chi. L. Rev. 1133 (2011).
[19] United States v. Thomas, 116 F.3d 606 (2d Cir.1997).
[20] Scott, Jury Nullification: An Historical Perspective on a Modern Debate, 91 W. Va. L. Rev. 389 (1989)
[21] See Fed. R. Crim P. 606(b); Remmer v. United States, 347 U.S. 227 (1954)
[22] Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017)

Hello Street Law Advocates, 

The right to an attorney in a criminal case is a concept seared into our brains through television  shows such as Law & Order, Criminal Minds, CSI, The Closer and Major Crimes, and most people view this right as being completely free, without the expectation of payment. In Gideon v. Wainwright, the US Supreme Court decided that indigent (poor) defendants have the right to an attorney appointed by the court.[1] One might infer that because this is meant to protect the rights of poor defendants they would not be expected to pay back the legal fees, but this is a misconception.[2]  In the United States generally, an Iowa particularly, charges indigent defendants the most for their court-appointed legal services.[3] In Iowa, by the end of 2022, indigent defendants owed almost $200 million in legal fees.[4]  To complicate this, fees are often shifted to defendants who had their cases dismissed or were otherwise found innocent — meaning that if you go through all the work on proving your innocence, your reward is a massive bill.[5]

This begs the question of whether mandating indigent defendants to pay for their legal services — even when not convicted of any wrongdoing — violates the constitutional principles that define our criminal justice system. If the 14th and 6th Amendments protect the right to representation for indigent defendants, then why make them pay - knowing that most people would rather choose to forgo representation?[6] Is this in essence a criminal penalty meant to ensure that defendants whose cases are dismissed do not further engage in suspected criminal conduct? 

Rep. Brian Lohse of the Iowa Legislature surely thinks so, asserting that the fees are meant to deter repeat offenders, and hold them accountable so they do not think of their legal representation as a gift.[7] This strikes me as counter intuitive given, as mentioned above, many of these individuals have been cleared by either a jury of their peers, or a judge sitting in judgement. Additionally, the failure to pay these legal fees results in a forfeiture of common rights such as registering your car, or receiving your state tax returns.[8] Despite the fact that legal representation is hardly a gift, but a fundamental right, the practice of fee-shifting looks more to me like a restitution order than compensation for services given that Iowa allocated millions of dollars to pay for indigent legal services.[9]


[1] Gideon v. Wainwright, 372 U.S. 335 (1963)
[2] Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[3] Id.
[4] Id.
[5] Defendants found guilty can also be met with the legal bill. Id.
[6] Gideon v. Wainwright, 372 U.S. 335 (1963); Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[7] Lauren Gill, If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill, The Marshall Proj. (Feb. 12, 2024), https://www.themarshallproject.org/2024/02/12/miranda-rights-indigent-defense-iowa.
[8] Id.
[9] Id.

Hello Street Law Advocates,

Today we're going to deviate a bit from our normal programming discussing the constitutional rights of defendants in the criminal justice system and police. Instead, we're going to dive into prisons. Figuratively, of course.

As you may know, our federal prisons are severely short-staffed and overcrowded.[1] Despite these conditions, as noted in the U.S. Department of Justice’s fiscal year report for 2024, the population will expand to ten percent overcapacity this year.[2] Overcrowding in prisons is not new, but what if I told you that the conditions resulting from overcrowding may give rise to serious constitutional violations?
​
The Eight Amendment to the Constitution prohibits cruel and unusual punishment.[3] Specifically, it states:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."

​While most think that this bar is limited to torture, the Supreme Court of the United States has extended the prohibition against cruel and unusual punishment to encompass an obligation to ensure humane conditions.[4]  In Estelle, the petitioner was injured during his mandated work, and he felt that the doctors did not provide prompt enough treatment.[5]In response to his claim, the Court held that the government must provide adequate medical care to inmates.[6] Further, the Court has upheld mandates that prison systems severely change their system and reduce inmate populations to satisfy these notions.[7]

Later, in Brown v. Plata, the Supreme Court of the United States sought to determine whether a Prison Litigation Reform Act (PLSRA) mandate that the California prison system substantially reduce its inmate population was constitutional.[8]At this time of this litigation, California had almost double the maximum capacity of inmates, similar to the overcrowding currently in federal prisons. Indecency and were not receiving adequate medical care or conditions because of overcrowding, leading to people succumbing to treatable ailments, an elevated suicide rate, and people being kept in crowded, small cages awaiting treatment.[9] The Court here determined that this was inconsistent with current notions of human decency and determined that these Eight Amendment violations could be remedied by a judicial mandate that the California system severely reduce the number of inmates.[10]

Currently, there is nothing in the U.S. Department of Justice’s report to suggest that federal inmates are being treated under the inhumane conditions as seen in Plata, but why should they have to wait before this issue is addressed? Isn’t the entire point of a constitutional right to prevent violations from happening? Federal inmates should not have to wait for the overcrowding to seriously affect their quality of life, for the prison population to be decreased, or for the facilities to be renovated for prison facilities to conform with what we consider as humane conditions. Yes, incarcerated persons have been temporarily stripped of their liberty due to their actions and resulting criminal convictions, but at no point do they lose their humanity.


[1] Shannon Heffernan, Federal Prisons Are Over Capacity – Yet Efforts to Ease Overcrowding Are Ending, The Marshall Proj. (Jan. 6, 2024), https://www.themarshallproject.org/2024/01/06/federal-prisons-release-staffing; Glenn Thrush, Short on Staff, Prisons Enlist Teachers and Case Managers as Guards, N.Y. Times (May 1, 2023), https://www.nytimes.com/2023/05/01/us/politics/prison-guards-teachers-staff.html.
[2] U.S. Dep’t Just. Fed. Prison Sys., FY 2024 PERFROMANCE BUDGET Congressional Submission (2024), https://www.justice.gov/d9/2023-03/bop_se_fy_2024_pb_narrative_omb_cleared_3.23.2023.pdf.
[3] U.S. Const. amend. VIII.
[4] Estelle v. Gamble, 429 U.S. 97 (1976).
[5] Here, the court concluded that the treatment was adequate and not contrary to the petitioner’s constitutional rights. Id. 
[6] Id.
[7] Brown v. Plata, 563 U.S. 493 (2011).
[8] Id.
[9] Id.
[10] Id

Hello Street Law Advocates,
 
Generally, when people think of the criminal justice system, one of their first ideas is that they have the right to a lawyer during the criminal justice process. However, this right is not as absolute as one might think. When imprisonment is not being imposed, there generally is no right to counsel.[1] This means that a court can try you for an alleged crime without an attorney present, so long as they do not impose a prison sentence.[2] This however is not as straight up of an analysis. Even though a lot of charges have some sort of incarceration penalty, the possible penalty is not what decides the right to counsel. 

Instead, the analysis is backward-looking. 

Only if incarceration is actually imposed is the right to an attorney granted, meaning that you are not entitled to an attorney when the court imposes a fine. [3] Additionally, there needs to be a finding that you are indigent, or not able to afford an attorney for the court to appoint you one.[4] With the high cost of litigation, however, most people meet the indigency definition because the average hourly cost of an attorney is too high for the average American to pay. 

The idea that the right to affordable counsel is not guaranteed across the criminal justice system begs the question — does this principle truly progress ideas of fairness when considering the impact certain charges can have socially and economically? 

For example, a defendant who is convicted of driving under the influence of alcohol (DUI), and who is not sentenced to imprisonment has no right to an attorney when the court takes on their case. The defendant will have the social stigma of receiving a DUI and will have a conviction on their record which can be used to calculate a harsher sentence for other criminal behavior, yet they do not have the guaranteed right to an affordable attorney. Additionally, this conviction can result in the deprivation of driving rights, which will affect a defendant's job and everyday life. Sure, it would be burdensome on the criminal justice system to ensure realistic access to counsel for every indigent defendant for every criminal charge to have the right to counsel, but in a system that revokes rights, does anything less realistically comply with notions of fairness and justice?

Why can’t we connect the right to affordable counsel with any penalty that has unfair collateral consequences associated with a criminal conviction regardless of an imposed prison sentence? 

Food for thought.


[1] Scott v. Illinois, 440 U.S. 367 (1979).
[2] Id.
[3] See Powell v. Alabama, 287 U.S. 45 (1932); Scott v. Illinois, 440 U.S. 367 (1979). 
[4] Gideon v. Wainwright, 372 U.S. 335 (1963).

​Hello Street Law Advocates,

In the wake of Trump’s federal indictment, many question why he was not detained prior to trial, which is the reality for many defendants in the federal system. According to the Federal Criminal Code and Rule 18 § 3142, a pre-trial detention hearing should be held if the defendant constitutes 1) a serious risk to community safety, 2) a serious flight risk, or 3) poses a serious risk of obstruction of justice. 

Keeping in mind that Trump was federally indicted for conspiracy to obstruct justice, which would appear to clearly pose a serious risk of obstruction of justice under Rule 18 § 3142, no pre-trial detention hearing was held. In comparison, approximately 60% of defendants are held pre-trial, a lot for less severe charges.[i] Jack Teixeira, the former Massachusetts Air National Guard member who was also recently charged with mishandling classified documents, is calling out this disparity. Despite the fact that Teixeira has significantly fewer resources than Trump, the Court determined Teixeira was a flight risk and was ordered to remain detained prior to his trial. The crimes prosecutors allege Teixeira committed are essentially the same as Trump’s first 31 charged offenses. The only notable differences are that Teixeira is accused of transmitting the information while Trump is not, and that Trump is accused of conspiracy to obstruct justice, and Teixeira is not. [ii]

The question remains: how can two defendants with very similar charged offenses have drastically different pre-trial detention results? The answer is most likely determined by the identity of a specific defendant. Here, Trump is a well-know, albeit infamous political leader, whereas Teixeira is not. Additionally, Trump would be easily recognized if he attempted to flee justice, whereas Teixeira would not. This analysis is how many courts are likely to begin distinguishing the two defendants, but is it convincing to the American public? Teixeira’s argument, alluded to above, may have some merit. He points to his modest income and how he is without the capacity to flee from prosecution whereas Trump is more likely to sustain his livelihood in another country, far from the United States’ prosecutorial reach. [iii] This discrepancy in outcome is likely due to the discretion of judges, who, after all, are merely human. However, when viewed in an objective analysis, the distinction our system makes between defendants seems to be more arbitrary than necessary to secure a criminal conviction. 

[i] https://www.usccr.gov/news/2022/us-commission-civil-rights-releases-report-civil-rights-implications-cash-bail#:~:text=More%20than%2060%25%20of%20defendants,t%20afford%20to%20post%20bail.

[ii] https://www.cbsnews.com/news/jack-teixeira-leaked-pentagon-documents-appeals-detention-order/
 
[iii] https://www.cbsnews.com/news/jack-teixeira-leaked-pentagon-documents-appeals-detention-order/
 
​

Hello Street Law Advocates,
​
After the first federal Trump indictment, there has been some confusion on what exactly a federal indictment means in relation to a state indictment. Generally, these two are very similar. In order to charge an individual with a felony offense punishable by imprisonment for a year or more, or a death sentence, the government needs to 1) indict you, or 2) charge you through an information.[i] An indictment is held once a month, and the government must prove that there is probable cause to support an arrest for the offense in order for a grand jury to issue an indictment.[ii] A grand jury must have between 16 and 23 members. An indictment is issued only if a minimum of 12 of those members agree that an indictment is appropriate.[iii] In this case, this means that the special investigator was able to prove to at least 12 of the grand jurors that the federal government has probable cause to charge Trump with a violation of 18 U.S.C. § 793(e), which covers willful retention of national defense information, in addition to a separate violation of 18 U.S.C. § 1512(k), which covers conspiracy to obstruct justice and other charged criminal violations. 

A federal indictment, however, is more daunting of a challenge to defeat than the New York state indictment. According to New York’s 2020 Criminal Justice Statistical Report, approximately 30% of felony indictments result in prison sentences, and approximately 67% of felony indictments result in convictions.[iv] In contrast, fewer than 1% of defendants facing a federal charge went to trial and won their case, and 90% pled guilty prior to trial. [v] With this framework and history in mind, it would appear Trump faces insurmountable odds in escaping his trial without a felony conviction either through trial or plea deal.  
Keep on the lookout for a follow up post discussing why Trump was able to escape pre-trial detainment after his arraignment. 


[i] Fed. R. Crim. P.  6

[ii] United States v, Sells Eng’g, 463 U.S. 418, 423 (1983).

[iii] Fed. R. Crim. P.  7

[iv] New York State Division of Criminal Justice Services, Criminal Justice Statistical Report for New York: Criminal Justice Case Processing Arrest through Disposition New York State January – December 2020 (2021). https://www.criminaljustice.ny.gov/crimnet/ojsa/dar/DAR-4Q-2020-NewYorkState.pdf

[v] John Gramlich, Only 2% of federal criminal defendants go to trial, and most who do are found guilty, Pew Research Center (June 11, 2019), https://www.pewresearch.org/short-reads/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/
 

Hello, Street Law advocates! 

In this second installment of our discussion of the Trump Indictment, we will cover the ramifications of a grand jury indictment, how these ramifications would play out differently for the average American when compared to how it has impacted Mr. Trump, and how those ramifications can lead to due process issues. In a post for the Marshal Project, Caroline Grueskin recounted her experience serving on a New York grand jury. Grueskin discusses how grand juries serve as both a sword and shield of the criminal justice system. Grand juries are a sword in the sense that an indictment is followed by an arraignment, which is when the defendant enters a plea in response to the indictment, is usually confined, and bail is usually set. They are also a shield because they allow the community to have a say in pursuing a criminal case. Grueskin recounts the trials and tribulations the jurors went through during the indictment process. She recalls when she first heard the reputation of grand juries which is that “they can indict a ham sandwich,” and how that statement made her feel disenfranchised with the criminal justice process. Grueskin then comes to the realization that most cases do not go to trial, which results in a majority of defendants being incarcerated on uncontested charges. This leads her to realize that grand juries are not a problem but are in most instances the only check on the power of prosecutors to charge a defendant and force a plea deal before trial. 

After a defendant is indicted, they are met with the sword of the criminal justice system which is an arrest, if they haven’t been already, and an arraignment. An arraignment is the initial hearing of a criminal case where the defendant learns about their rights, the charges against them, and whether to hold the defendant in prison before trial or release them until the trial. In most cases, the defendant will likely be held in jail unless they can post bail which is granted after the judge weighs several factors such as the type and severity of the crime, how long the defendant has lived in the area, their local family, prior criminal records, and possible threats to witnesses. The judge weighs these factors to determine what amount of bail is appropriate for each defendant to successfully act as a deterrent to not returning to the Court’s custody and an incentive to get the bail money back from the Court system. The normal arraignment experience however was not the experience Trump had during his arraignment. There were no handcuffs, no mug shot, no holding cell, and no pre-trial confinement. For most defendants, they are placed in unsanitary conditions in overcrowded holding cells while awaiting arraignment, then sent to prison to await trial if they cannot afford to pay the bail. Some prior defendants report nothing to eat but moldy sandwiches and the crowded cell being littered with urine-filled plastic cups.

What is most concerning, is that these people have not been found guilty of a crime before their confinement, and many of them did not know about the indictment — meaning they could not provide a defense before their liberty is held hostage by the state. In determining whether to hold an individual before trial, the courts balance the defendant’s presumption of innocence with public safety. This, however, is a slippery slope that often ends up penalizing people who have not yet been convicted of a crime. In some instances, judges are able to weigh the prosecution’s evidence before trial to determine whether to confine a defendant or how high bail is to be set. The due process clause is supposed to protect defendants from unnecessary punishment, however, the common practice of holding people in subhuman conditions while they await trial falls far from the standard the due process clause mandates. Here, there is no standard that judges apply in determining who is detained awaiting trial and who is not, which leads to outcome inconsistencies that the Trump arraignment exemplifies. 

​Sources:

Most New Yorkers Don’t Get the Trump Treatment at Arraignment, The Marshall Project, https://www.themarshallproject.org/2023/04/04/indictment-arraignment-meaning-new-york-trump (last visited May 23, 2023)
 
Caroline Grueskin, Confessions of a Grand Juror, The Marshall Project (Oct. 27, 2015), https://www.themarshallproject.org/2015/10/27/confessions-of-a-grand-juror
 
Office of the United States Attorneys, Initial Hearing / Arraignment, https://www.justice.gov/usao/justice-101/initial-hearing
 
Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L. J 723, 766-76 (2011).