This is topic "It's punishing someone before conviction" -HOORAY! I'm now officially published! in forum Books, Films, Food and Culture at Hatrack River Forum.
My note didn't get selected for publication. I met with the notes editor, and this was his first substantive comment. The topic was giving someone arrested for street-level drug or prostitution crimes an order requiring them to stay at least 3 blocks away from the scene of the crime as a condition of release.
Mind you, I don't think the argument that this is pre-conviction punishment is shallow. It's a fairly obvious attack on the proposed plan. Which is why I spent 10 pages discussing the issue!!!
Arrggggh! There's lots of places to disagree with my conclusions. No court has ever ruled on the constitutionality of such orders, and they implicate a lot of different policy and legal issues.
But please don't toss out one of the obvious questions any 1L would ask about the plan as a reason for dismissing the article's conclusions. At least address the six-factor Mendoza test that I spent 10 freakin' pages on.
Sheesh.
This was a rant. It was only a rant. Had this been an actual post, the complaining you just heard would have been followed by legal analysis. This was only a rant. We now return you to your Hatrack already in progress.
[ December 28, 2006, 03:03 PM: Message edited by: Dagonee ]
Posted by Icarus (Member # 3162) on :
:-\
Sucks.
Posted by Tristan (Member # 1670) on :
Perhaps you could submit your note for publication elsewhere?
Posted by Dagonee (Member # 5818) on :
I am - a new managing board will decide it the next time I submit to this journal, and I'm researching other journals right now. Getting this published is incredibly important to me.
Posted by KarlEd (Member # 571) on :
Keep us posted.
I'd like to read it, if you want to email me a copy. (If that's kosher). Posted by Dagonee (Member # 5818) on :
Karl, is the email address here able to accept half-meg files? (Edit: I just went ahead and sent it anyway.) I'm happy to send it as long as you don't circulate it. I'd love any comments you might have. Some of it is case-specific legal analysis, but much of it is policy oriented.
[ February 28, 2006, 03:36 PM: Message edited by: Dagonee ]
Posted by Dagonee (Member # 5818) on :
quote:Kidding aside, that's rather obnoxious. Did he actually read the note??
Yes. He also said, "Our first reaction was that this had to be unconstitutional, but you definitely handle that well."
Which is why I'm convinced this is a good note: it's stating something that isn't obvious and requires careful analysis to examine correctly. And there's essentially nothing published directly on point.
Part of my annoyance no doubt stems from the fact I was rejected. But to start off that way staggered me. And there were other similar comments made along the way, not quite so egregious.
Posted by Dagonee (Member # 5818) on :
Sent.
Posted by Rakeesh (Member # 2001) on :
Fire it off to me, but don't be surprised if I have to ask you a bunch of questions, if you don't mind:)
It certainly sounds like an interesting bit of law, though.
Posted by Dagonee (Member # 5818) on :
Done.
Posted by KarlEd (Member # 571) on :
Check your email, Dag.
Posted by Primal Curve (Member # 3587) on :
Bastiges!
Posted by Dagonee (Member # 5818) on :
Thanks, Karl. I sent you an email. Short version: excellent comments.
Posted by Orincoro (Member # 8854) on :
Dag, maybe the editor was responding to some limit in focus he believed you had. Ie, he thought for some reason that you didn't effectively defend the need for due process to applied, just that you said it was "unfair." Well whatever, you did write Ten pages, so somehow I imagine you got around to this... ironically your note wasn't given due process by the editor... hmmm.
Posted by Kwea (Member # 2199) on :
I would like a copy, if you don't mind.... Posted by Dagonee (Member # 5818) on :
You got it.
Posted by dkw (Member # 3264) on :
I had a professor once that wrote lots of comments in the margins as she read the paper. It was so annoying, because she'd write a really long comment about how you really should have addressed exactly what you did address in the next sentence and then she'd read a little further and write "--Oh, ok." Posted by Tante Shvester (Member # 8202) on :
Tsk tsk! <clucking sympathetically>
Good luck on getting published elsewhere.
Also, I really enjoyed the rant. Just so you know -- your rants get raves.
Posted by KarlEd (Member # 571) on :
quote:Originally posted by dkw: I had a professor once that wrote lots of comments in the margins as she read the paper. It was so annoying, because she'd write a really long comment about how you really should have addressed exactly what you did address in the next sentence and then she'd read a little further and write "--Oh, ok."
I read the paper again, and I'm almost convinced the offending comments were due to something like this. It's almost like the editor was expecting a note arguing against the stay-away orders and starting making comments in that vein, (i.e. "Of course they're unconstitutional") then realized you were actually defending the practice (within specific and well-defined parameters). The "shallow thinking" and "you definitely handled that well" comments seem sort of schizophrenic, leading me to believe some of the comments were made before he understood what position you were taking. (Which I can only assume was due to a cursory first-read because your position was fairly clear to me on my first read and I'm not a law editor.)
But to be fair, it's probably editorial practice to skim first. It took me a loooooong time to get through the first read, but again I was in unfamiliar territory.
I'm really interested in any other comments you get from professionals. It seemed like a well thought-out and reasoned arguement to me. Let us know when it gets published. Posted by Dagonee (Member # 5818) on :
dkw, I had a couple of professors who did that in undergrad, but for some reason it only made me feel smug. Had they not corrected themselves, I'd have likely been mad.
quote:The "shallow thinking" and "you definitely handled that well" comments seem sort of schizophrenic, leading me to believe some of the comments were made before he understood what position you were taking.
I think I gave you the wrong impression - "shallow thinking" was my commentary on the comment I received from him about punishment.
But I think you're right overall about why it happened.
Criminal procedure is the bastard stepchild of academic law.
quote:I'm really interested in any other comments you get from professionals. It seemed like a well thought-out and reasoned arguement to me. Let us know when it gets published.
Thank you. I will definitely share comments as I get them.
Posted by KarlEd (Member # 571) on :
quote:I think I gave you the wrong impression - "shallow thinking" was my commentary on the comment I received from him about punishment.
Ah. Well that makes sense. Posted by Dagonee (Member # 5818) on :
My note was accepted for publication today by the Law Review. The new managing board finished their deliberations this evening and contacted me a few minutes ago.
I'd like to thank you again Karl your notes - they were very helpful.
Guess those hopes get to survive a little longer.
[ April 14, 2006, 12:21 AM: Message edited by: Dagonee ]
Posted by Shigosei (Member # 3831) on :
Congratulations! That's wonderful news.
Posted by Dan_raven (Member # 3383) on :
Posted by Noemon (Member # 1115) on :
Great news, Dag! Congratulations!
Posted by Bob_Scopatz (Member # 1227) on :
Excellent!
Posted by KarlEd (Member # 571) on :
Super news, Dag.
I'm honored to have been of help. It really was an interesting and insightful read, (IMHO).
Posted by dkw (Member # 3264) on :
Posted by quidscribis (Member # 5124) on :
Neato, Batman!
Posted by Dagonee (Member # 5818) on :
Thanks, everyone!
Posted by Farmgirl (Member # 5567) on :
Wow! Way to go, Rob! :applause:
Posted by aspectre (Member # 2222) on :
Oh, I dunno. The SupremeCourt has ruled that it's legal for the US, states, and local governments to use law enforcement personnel to commit armed robbery of persons carrying whatever an individual officer considers to be a excessively large amount of cash. With such confiscation challengeable in court true, but also with the weird provision that the victim is guilty-until-proven-innocent of committing a crime that makes his/her possession of that cash illegal. Funny how possessing a $20thousand diamond or car isn't grounds for confiscation, but possession of lesser amount in cash is. And the challengeability is mostly theoretical, not practical. There is no provision in the Law to force reimbursement of legal fees should the challenge be successful. "Anyone who represents himself in court has an idiot for a lawyer." And without mandatory reimbursement of legal fees, the standard fee for a lawyer to handle a challenge to confiscation case makes it a losing proposition. Even if one wins, one is out at least thousands of dollars. And unless the amount confiscated is in the tens of thousands of dollars, it is usually cheaper to forget about making a challenge, just letting the confiscating government agency keep the money.
Punishment without conviction, or even evidence that any crime whatsoever has been committed.
[ April 26, 2006, 07:36 PM: Message edited by: aspectre ]
Posted by aspectre (Member # 2222) on :
The SupremeCourt allows the IRS to just assume the amount of income you have earned based solely on where you live. eg If you spend nearly all of your money to live in an expensive home, with the rest of your income barely enough to cover an extremely poor person's diet, the IRS can assume you are making a lot more "under the table" based on the spending habits of neighbors with a similar home. And tax and fine you accordingly on that estimate with no basis other than how well your neighbors live.
Punishment, legal by way of an IRS ruling based on no evidence whatsoever.
Posted by KarlEd (Member # 571) on :
Um, except this has nothing to do with the paper he wrote, really. You might consider starting a different thread. Posted by Jim-Me (Member # 6426) on :
joo r0x0rs d00d!!!111z1!
Posted by Dagonee (Member # 5818) on :
It's scheduled for publication in the April 2007 issue right now. The abstract is online here. Posted by Kwea (Member # 2199) on :
I began reading it, Rob, but got sidetracked with going to the ER and stuff. Sorry I wasn't able to send notes, although I doubt I would have caught anything you and KarlEd didn't.
I will finish up reading it though, even though it is in leagalese I find the topic interesting.
Posted by rivka (Member # 4859) on :
The abstracts go up a year in advance? Wow.
And who is this "Robert Prince" fellow?
Congrats, Dags. Posted by KarlEd (Member # 571) on :
He's a prince of a guy, of course. Posted by Dagonee (Member # 5818) on :
Kwea, I won't feel insulted at all if you don't want to slog all the way through it. Sections I, II, and V are the least law-heavy if you want to read about the proposal and why it will work.
They told me today they want to cut about 4,000 words (out of 25,000), which shouldn't be a problem.
Posted by Kwea (Member # 2199) on :
I read really fast.....not world class speed reading, but over 90 pages and hour (for novels, anyway.).
I will probably read it all, even though really technical stuff does parse a lot slower. Posted by Dagonee (Member # 5818) on :
If anyone wants to read it, the PDF is on the site. I don't necessarily recomend it to anyone, but the introduction and sections I and IV are less legal analysis and more accessible to non-lawyers. There will be several conclusions in IV that are stated baldly with little support because the legal issues were analyzed in sections II and III. Here's the intro:
quote:ON November 14, 2000, Officer Andre Martin of the Washing-ton, D.C. Police Department saw John Q. Wesley, a known drug dealer, parked near the intersection of Stanton Road and Trenton Place. Officer Martin had no probable cause to believe that Wesley was in possession of drugs. Under normal circum-stances, Officer Martin would have had to either wait until he saw activity that constituted probable cause, seek consent for a search from Wesley, or do nothing. However, Officer Martin knew that Wesley was subject to an order to stay away from the intersection as a condition of pretrial release while awaiting trial for two charges of possession with intent to distribute cocaine. Officer Martin arrested Wesley for violating the stay-away order and dis-covered a handgun and two baggies of crack cocaine during a search incident to Wesley’s arrest. The resulting convictions on three charges resulted in Wesley receiving a fifteen-year prison sentence.1 Because of the stay-away order, a drug dealer who had been arrested three times at the same location was removed from society for a long period of time. The use of such scene of the crime stay-away orders for accused drug dealers who are released prior to trial serves the District of Columbia community prosecution ini-tiative’s focus on preventing crime, not merely punishing it.2
The editing process was grueling, but it really did improve the piece. They did keep my basic structure - which is unusual in a student note.
And with this, my last law school activity is done.
Posted by kmbboots (Member # 8576) on :
Congratulations!
Posted by ClaudiaTherese (Member # 923) on :
Posted by Alcon (Member # 6645) on :
Congrats Dag!
Posted by Phanto (Member # 5897) on :
Dagonee, you are really, really cool. The text is interesting, but reads as lawyer-jargon, which kinda makes sense, so I might get through it later ^.^
Posted by quidscribis (Member # 5124) on :
Cool beans, Dag! Congrats!
Posted by BlackBlade (Member # 8376) on :
My warmest congratulations, already making impressions in the world of legality eh Dag?
Posted by Flaming Toad on a Stick (Member # 9302) on :
I actually found that the text was remarkably clear. While some jargon was there, the paper was still written in a very accessible way. I enjoyed it. Congrats, Dag.
Posted by Phanto (Member # 5897) on :
Oh, for sure it was clear and understandable. I meant jargon as a sort of compliment. The paper feels like a profesional work, like something that a lawyer would write (which does make sense), and makes me wish I were writing such awesome stuff!
Posted by Stan the man (Member # 6249) on :
I'll read it later, but say Congratulations now.
Posted by rivka (Member # 4859) on :
Congrats, Dags. Posted by BlueWizard (Member # 9389) on :
It seems to me that this is nothing but a Restraining Order. I don't think a crime needs to be commited for one person to get a restraining order against another. Only some for of harassment or some activity that creates fear in the person seeking the Restraining Order. So, in that sense, I don't see this as punishment before crime.
The person who is the subject of this very unique type of Restraining Order will have already established themselves as a 'public nuisance' at the location in question. Even if they have not yet been convicted of a primary crime.
I really don't see the problem in general, although I can think of specific circumstances where a problem could occur. For example, what if the location in question is very near the person's home. They could be in violation while sitting quietly in their living room. Also, what happens if the location in question is a main thoroughfare and the reasonable and logical route for the 'subject' to travel is past that location?
Still there is a difference between passing a location and lingering there.
Overal, I don't see any civil rights violations any more than I see them with a vaild court ordered Restraining Order between individuals.
Just a thought.
Steve/BlueWizard
Posted by Kwea (Member # 2199) on :
I have a problem with these orders, but I am only half way through your paper.
It just seems like an assumptions of guilt, and that runs contrary to what our legal system is based on.
If they aren't guilty, so we have a right to restrict their access? I don't think so.
Posted by Dagonee (Member # 5818) on :
We have the right to lock some people up who haven't been found guilty yet. We have the right to evict them from their homes and make them stay away from their wives and children. We have the right to make them post a bond. We have a right to tell them they can't travel out of state. We have a right to tell them what house they must live in. We have a right to force them to submit to drug tests. We have a right to tell them they can't associate with someone who has been convicted of a felony.
Certainly it's possible to disagree that these are sound policies. But it's very hard to argue that the stay-away orders are contrary to the existing legal system when all of these are well-established as permissible conditions of pretrial release.
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