Federal Prisons sealOnce a person has been convicted of a criminal offense and sentenced to a term of incarceration, they have numerous possible legal avenues to avoid serving the entire length of the sentence. The most common methods, aside from appeals and habeas corpus petitions, are parole and other forms of early release. Clemency, which occurs when the president or governor either commutes the sentence or pardons the offense, is a far less common outcome, but it has many interesting legal ramifications. In the last few months of his second term in office, President Obama commuted the sentences of several hundred nonviolent drug offenders. While this resulted in many early releases, at least one person has remained in prison because of a conflict between federal and state jurisdiction.

Clemency can take two main forms. A “pardon” essentially absolves a person of guilt for a particular offense, or in connection with a particular act or incident. If no prosecution has occurred, a pardon prevents it from occurring at any point in the future. If a prosecution is already underway, or a person has already been convicted, a pardon either halts the prosecution or wipes out the conviction. A “commutation” merely shortens a person’s term of incarceration without wiping out the conviction.

The power to grant clemency in federal criminal cases is vested in the President of the United States. This power only extends to criminal cases under the jurisdiction of the federal court system. State governors have sole authority over clemency in state criminal cases. In cases that involve both federal and state charges, this could mean that clemency by one executive, such as the President, does not resolve the entire case. Intersections between state and federal law are particularly likely in drug-related criminal cases, since both federal and state law enforcement take an active interest in enforcing drug laws.

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crt-monitor-old-tower-personal-35565The Fourth Amendment to the U.S. Constitution requires law enforcement officials to obtain a warrant prior to searching an individual’s personal effects or seizing their property. The warrant must demonstrate probable cause to believe that the search or seizure will reveal evidence related to a criminal investigation. These protections apply both to a person’s physical effects, such as documents and other materials, and to their “electronically stored information” (ESI). The extent to which a warrant may allow law enforcement to search and seize ESI is still a matter of dispute. A federal judge issued a ruling in late 2016 that seems to grant broad powers to law enforcement to seize ESI. The court found that the Federal Rules of Criminal Procedure and the Stored Communications Act (SCA) required a provider of email services to turn over the entire contents of several email accounts. In re Microsoft Corp., No. 2:16-mj-08036, mem. order (D. Kan., Sep. 28, 2016).

At the time the Fourth Amendment was drafted and ratified in the 18th century, people’s personal effects mostly consisted of materials that they kept on their person or in their residence. This remained true for nearly two centuries, until computers became widespread, and people began using third-party internet service providers (ISPs) to communicate. Private communications, which enjoy the Fourth Amendment’s protection from warrantless searches and seizures, may now reside on servers maintained by ISPs, with the owner of those communications having the right to access them.

The third-party doctrine, which holds that information voluntarily disclosed to others is no longer protected by the Fourth Amendment, would seem to make communications stored by ISPs accessible to law enforcement—this seems to fit the letter of that particular doctrine, if not its spirit. The SCA attempts to reconcile the use of third-party ISPs with the Fourth Amendment, establishing requirements for warrants issued to ISPs. 18 U.S.C. § 2703. Procedural rules also address warrants for ESI. See Fed. R. Crim. P. 41(e)(2)(B).
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GPS Satellite NASAOf the thousands of criminal cases brought by federal, state, county, and local prosecutors around the country each year, very few result in an actual bench or jury trial. Many or most cases end with a plea bargain of some sort. Modern technology has allowed law enforcement to develop electronic monitoring systems as an alternative to incarceration. These systems are now widely used by criminal courts, juvenile courts, and probation and parole officers. Electronic monitoring devices allow officials to monitor individuals’ movements and locations. In some cases, the use of these systems raises new civil rights questions. Technological and administrative shortcomings can also contribute to situations in which the electronic monitoring itself prevents a person from fulfilling other obligations in a criminal case.

Electronic monitoring can take several forms. The Pretrial Services Division in Travis County, Texas describes two systems that it may use. “Radio Frequency Electronic Monitoring” involves the use of a device—commonly worn as an ankle bracelet—that transmits a signal if it is carried outside a designated area. This type of device is used for house arrest and other situations in which an individual must remain at home at designated times. “Global Positioning System Electronic Monitoring” allows officials to determine an individual’s location and track their movements in order to monitor compliance with court requirements.

Several provisions of Texas law allow for electronic monitoring. In criminal cases, courts can require the use of electronic monitoring to enforce a sentence of house arrest in lieu of a jail sentence. Tex. Code Crim. P. Art. 42.035. A court may require electronic monitoring as a condition of release from jail on a personal bond. Id. at Art. 17.43. Electronic monitoring may also be used as an alternative to incarceration in juvenile cases. A court can order electronic monitoring as part of the civil commitment system for certain convicted sex offenders. Tex. Health & Safety Code § 841.081 et seq.

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Food vending machineThe gradual decriminalization of marijuana in several states around the country has created unusual legal pitfalls. The U.S. Securities and Exchange Commission (SEC) has taken an interest in efforts to attract investors to the legal marijuana trade. This is practically unexplored legal territory, since such investments would have been unambiguously illegal just a few years ago. The SEC recently filed a civil complaint for securities fraud against a California company involved in legal marijuana sales, as well as its founder and two corporate officers. The founder and the corporation settled with the SEC, which is the civil equivalent of pleading no contest. SEC v. Notis Global, Inc., et al., No. 2:17-cv-01905, final judgment (C.D. Cal., Mar. 21, 2017).

“Securities fraud” encompasses a wide range of activities. The Securities Act of 1933, 15 U.S.C. § 77a et seq., regulates the issuance of new securities, including corporate stocks. The Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., deals with the trading of securities after they have been issued, such as in the various stock exchanges. Both statutes prohibit fraudulent statements and other deceptive acts in connection with the sale or purchase of securities. Violations may result in civil liability and, in some situations, criminal penalties. 15 U.S.C. §§ 77x, 78ff; see also 18 U.S.C. §§ 1348, 3301.

Lawmakers and law enforcement must often figure out how to reconcile new marijuana laws with old systems. One state might have removed criminal penalties for the production, distribution, sale, and possession of marijuana, but financial institutions subject to federal regulations might still shy away from doing business with them. In 2014, the SEC issued a memorandum about potential microcap investment scams, also known as penny stock fraud, in the marijuana business. The memo sought to warn investors about “pump-and-dump” scams, which involve making false or misleading statements about a company in order to artificially inflate its stock price.

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houston-texas-usa-building-1620695Legal restrictions on marijuana seem to be loosening all over the country, at least at the state level. Under both Texas and federal law, though, marijuana remains a highly restricted controlled substance. While public support for lessening restrictions is reportedly growing in Texas, the Texas Legislature does not seem likely to change the law any time soon. The state’s most populous county, however, has initiated a program that changes how that county’s prosecutors will handle minor marijuana possession cases. According to the Harris County District Attorney, the purpose of the Misdemeanor Marijuana Diversion Program (MMDP) is to reduce the burden on both the criminal justice system and the public of prosecuting thousands of people for nonviolent, minor marijuana offenses. The DA can assert prosecutorial discretion in deciding how to allocate resources, but this has not stopped critics from claiming that she is ignoring the law.

More than half of the states, as well as the District of Columbia and other territories, allow medical marijuana use to some extent. Texas is on this list, although it permits only very limited use. A handful of states have legalized the possession of marijuana in small amounts for recreational purposes. Texas is not on this list. Possession of two ounces or less of marijuana is a Class B misdemeanor, punishable by a fine of up to $2,000, a maximum jail sentence of 180 days, or some combination thereof. Tex. Health & Safety Code § 481.121(b)(1), Tex. Pen. Code § 12.22. Possession of more than two ounces, but not more than four ounces, is a Class A misdemeanor, which carries maximum penalties of a $4,000 fine and one year in jail. Tex. Health & Safety Code § 481.121(b)(2), Tex. Pen. Code § 12.21.

According to the MMDP policy statement issued by the Harris County DA, the county prosecuted over 100,000 people for misdemeanor marijuana offenses over the past ten years. This reportedly cost more than $100 million, but “produced no tangible public safety benefit for the people of Harris County.” Instead, the DA states that the investigation and prosecution of misdemeanor marijuana cases took up police and county resources, including officers’ time, crime lab resources, space in county jails, and court dockets, “that should be spent bringing serious criminals to justice.”
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Halfway HouseA criminal conviction can result in a wide range of penalties, depending on an even wider range of factors that judges and juries must consider. Most cases result in some form of probation, or time served if the defendant remained in custody during the case. A defendant who is sentenced to a jail or prison term may not serve the entire sentence. Parole involves early release, followed by a period of supervision that is similar to probation. Some inmates may be eligible for release to a facility located in the community, commonly known as a “halfway house,” whose purpose is to assist with the adjustment to life outside prison. A recent investigative report on President Obama’s pardons and commutations showed how these facilities can, unfortunately, end up looking more like punishment instead of rehabilitation.

The Bureau of Prisons (BOP) takes custody of people convicted of federal criminal offenses. It is authorized to incarcerate inmates in any facility “that meets minimum standards of health and habitability.” 18 U.S.C. § 3621(b). At the end of their sentences, federal law directs the BOP to place prisoners in facilities “that will afford [them] a reasonable opportunity to adjust to and prepare for [their] reentry…into the community” for up to 12 months. Id. at § 3624(c). It refers to these facilities as residential reentry centers (RRCs)—halfway houses by another name.

Texas has similar procedures for halfway houses. The Pardons and Paroles Division (PPD) is authorized to take custody of an inmate within 12 months of their “presumptive parole date or mandatory supervision release date” and to place them in a “community residential facility” for the remainder of their sentence. Tex. Gov. Code § 499.002(a). The Texas Community Supervision and Corrections Department (CSCD) also has the authority to transfer “suitable low-risk inmates” and those whom it finds “would benefit from a smoother transition from incarceration to supervised release” to halfway houses. Id. at § 508.118(a).

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messengerThe Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects” has gained new meanings as computer technology enables people to store their personal communications, such as email, on remote servers operated by third-party service providers. Courts have repeatedly had to consider whether data stored remotely remains “private” for the purposes of the Fourth Amendment. Federal law allows law enforcement to access emails and other remotely stored data without a warrant under certain circumstances. Texas became one of the first states to require a search warrant for such materials in 2013, and several other states have followed suit. In June 2016, the U.S. House of Representatives passed H.R. 699, the Email Privacy Act (EPA), which would apply the same restrictions as those found in Texas law. The bill is now pending in the Senate.

The Supreme Court, when determining whether police must obtain a warrant for certain types of materials or information, looks at whether a person has a reasonable expectation of privacy in that particular area. The “third-party doctrine” holds that a person has no reasonable expectation of privacy in materials that they have voluntarily given to a third party. See Smith v. Maryland, 442 U.S. 735 (1979). “Cloud computing,” which refers to the use of remote servers to store data, instead of local devices like personal computers or smartphones, has raised numerous questions and concerns regarding the third-party doctrine.

Most Supreme Court rulings on the third-party doctrine involve information given out once, such as the numbers of outgoing phone calls in Smith. Cloud computing, on the other hand, involves data that people store with the intention of accessing it repeatedly. Email service providers, for example, frequently offer remote hosting to consumers free of charge, allowing people to access their email from multiple devices and locations. This is not the same type of activity addressed in the most influential third-party doctrine court cases, all of which predate the widespread availability of cloud computing.

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tea leavesPolice are generally not permitted to search a person or their premises, or to seize their property, unless they obtain a warrant from a judge after demonstrating probable cause to believe a search will yield evidence related to a criminal investigation. The “War on Drugs” has led to some highly creative methods of alleging probable cause, as demonstrated by a civil lawsuit filed against a county sheriff’s department for civil rights violations under 42 U.S.C. § 1983. A judge ruled in late 2015 that the defendants had demonstrated probable cause to justify the 2012 raid on the plaintiffs’ home, which turned up no evidence of drugs whatsoever. Harte, et al. v. Bd. of Comms. Of Johnson County, Kan., No. 2:13-cv-02586, mem. Order (D. Kan., Dec. 18, 2015). This is not a final order regarding probable cause but instead a summary judgment order holding that probable cause was enough for the defendants to avoid civil liability.

The Fourth Amendment to the U.S. Constitution states that a search warrant requires probable cause, “supported by Oath or affirmation,” along with a description of “the place to be searched, and the persons or things to be seized.” Police are generally limited to searching the areas identified in a warrant for specific contraband or other items. An officer cannot expand the scope of a search without obtaining an amended warrant, unless an exception to the warrant requirement applies. Anything seized by police that is outside the scope of the warrant and that does not fall under an exception may not be used against the defendant.

Sheriff’s deputies in Johnson County, Kansas, reportedly dressed in SWAT gear, executed a search warrant on the Harte plaintiffs’ home in late April 2012. The warrant allowed them to search for marijuana and drug paraphernalia. Two hours of searching the residence failed to yield any illegal drugs or drug paraphernalia, and no charges were filed. The plaintiffs were reportedly both former employees of the CIA, and they undertook to find out why their home had been raided by heavily armed officers.

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binary codeUnauthorized access to computer systems, commonly known as “hacking,” undoubtedly causes significant damage to individuals and businesses around the country. As often happens, however, the law has had difficulty keeping up with new technology. Federal law prohibits a wide range of computer fraud-related activities, but most offenses require proof that a defendant acted with intent, which is the most difficult mental state for prosecutors to prove. Perhaps as a result, some prosecutors have developed creative strategies to pursue alleged hackers. In one recently filed case, federal prosecutors have charged an individual under the federal hacking statute with no allegations that he personally engaged in any hacking activities. Instead, they essentially allege that he developed software with the intent that it would be used by hackers. United States v. Huddleston, No. 1:17-cr-00034, indictment (E.D. Va., Feb. 16, 2017).

Congress first enacted a criminal statute related to computer fraud, found at 18 U.S.C. § 1030, in 1984. It has amended this section numerous times over the years, perhaps most notably in 1986 with the Computer Fraud and Abuse Act (CFAA). That bill significantly expanded the legal definition of “computer fraud.” The original 1984 law made it a federal crime to access computer systems of the federal government or a financial institution without authorization. The CFAA added provisions about unauthorized access, or access that exceeds granted authority, to any “protected computer,” which it defined to include nearly any computer whose use affects interstate commerce. 18 U.S.C. §§ 1030(a)(4) – (6), (e)(2)(B).

Federal prosecutors are not accusing the defendant in Huddleston of hacking anybody. Instead, the alleged conduct leading to the indictment consisted solely of developing a software tool reportedly used by hackers. According to the indictment, the defendant created a “remote administration tool,” or “remote access trojan” (RAT), a type of software that allows a user to take control of someone else’s computer without their knowledge or consent. This RAT has allegedly been used in multiple cyberattacks around the world. Prosecutors allege that the defendant created this software for the specific purpose of making it available to hackers.

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syringeAccidental drug overdoses are a major cause of death in the U.S. The class of drugs known as opioids, which includes many prescription painkillers, is reportedly responsible for most of the increase in overdose deaths in many parts of the country. Since these drugs are legally categorized as controlled substances, people may hesitate to seek medical attention for themselves or others, for fear of arrest and criminal charges. More than half of the states in the U.S. have enacted “9-1-1 Good Samaritan” laws, which shield people from criminal liability for minor drug possession if they go, or take someone, to a hospital or another medical facility because of an overdose. Texas is not among the states that have enacted this type of law, but even in some states that have, some police departments are reportedly simply finding different ways to charge people with criminal offenses.

Texas law establishes penalties of varying levels of severity for the possession of a controlled substance (POCS), depending on the type and amount of controlled substance involved. See Tex. Health & Safety Code § 481.115 et seq. A person is not subject to criminal liability if they have a valid prescription for the controlled substance in their possession, unless they have far more in their possession than is authorized by their doctor. Texas does not have many other exceptions from liability for POCS, and it does not have a 9-1-1 Good Samaritan law.

At least 37 states and the District of Columbia have enacted 9-1-1 Good Samaritan laws. Ohio’s POCS statute, for example, does not apply to a person who, “in good faith…seeks or obtains medical assistance for another person who is experiencing a drug overdose,” or “who experiences a drug overdose and…seeks medical assistance for that overdose.” Ohio Rev. Code §§ 2925.11(B)(2)(a)(viii), (B)(2)(b). The purpose of this exception is to encourage people to call for help or go to the hospital in the event of an overdose.

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