leafThe federal Criminal Code imposes a variety of restrictions on people with felony convictions. The Armed Career Criminal Act (ACCA) of 1984 prohibits convicted felons from owning or possessing firearms. 18 U.S.C. § 922(g). This statute also imposes sentencing enhancements on people with three or more “violent felony” convictions. 18 U.S.C. § 924(e)(1). Since the precise definition of a “felony” varies from one jurisdiction to another, federal statutes attempt to provide general definitions. In 2015, the U.S. Supreme Court struck down part of the ACCA’s definition of “violent felony,” finding it to be unconstitutionally vague. Johnson v. United States, 576 U.S. ___ (2015). This year, the court held that the Johnson ruling applies retroactively to other individuals. Welch v. United States, 578 U.S. ___ (2016).

In Welch, the court was asked to decide whether its ruling in Johnson was “substantive” or “procedural.” These two terms are not particularly well-defined, but a “substantive” ruling generally affects fundamental rights or obligations, and therefore it has an impact beyond the parties to a particular dispute. A “procedural” ruling, on the other hand, addresses the manner in which a court handled a particular case, and therefore it does not have such a far-reaching impact. This distinction appears in many important civil rights cases that invoke “substantive due process.”

The ACCA, like many federal statutes, broadly defines a “felony” as a criminal offense that carries a potential punishment of more than one year’s imprisonment. 18 U.S.C. § 922(g)(1). This definition, it is important to note, does not require an actual sentence of more than one year. A person who is convicted of such an offense but who receives a lesser sentence is still a “convicted felon” for the purposes of the ACCA.

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data accessThe term “cybercrime” covers a vast array of acts involving computers and other technologies. The difficulty in defining “cybercrime” can occasionally lead to prosecutions for activities that might not seem particularly criminal but that arguably fit within a statute’s definition of prohibited conduct. The federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, has been a subject of criticism as prosecutors use it in creative ways to pursue alleged cybercriminals. In one recent case, prosecutors charged a former newspaper employee under the CFAA for giving unauthorized access to newspaper servers. He was convicted and sentenced to two years in prison. United States v. Keys, No. 2:13-cr-00082, superseding indictment (E.D. Cal., Dec. 4, 2014). A federal appellate court in another case held that using someone else’s password to access certain computer systems violates the CFAA. United States v. Nosal, No. 14-10037, slip op. (9th Cir., Jul. 5, 2016).

Congress enacted the CFAA in 1986 as an amendment to the Comprehensive Crime Control Act of 1984. It has amended the law several more times, including in 2001 as part of the Patriot Act and most recently in 2008. The law covers a wide range of activities that center on unauthorized access to “protected computers,” defined very broadly as any computer used by a financial institution or the federal government, or used “in or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2).

The defendant in Key was a journalist and blogger for the Los Angeles Times. Prosecutors alleged that he helped members of the hacker group Anonymous gain access to the newspaper’s servers in late 2010. The hackers used this access to modify a news article posted to the Los Angeles Times’ website. The modified story was only up for about 40 minutes, and it was not clear if either the newspaper or its parent company suffered any financial loss.

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Baton Rouge BridgeThe “War on Drugs” has resulted in the criminalization of a vast array of acts, as well as the extension of serious criminal charges to situations that might not seem to fit the legal definition of those crimes. In Louisiana, prosecutors recently applied a rarely used state law that allows homicide prosecutions in cases of fatal drug overdoses. This is how a man found himself sentenced to life imprisonment for, essentially, providing drugs to his girlfriend. Texas does not have a comparable statute directly linking drug prohibition and homicide, but the Louisiana case shows how far a state might be willing to go in drug cases.

Louisiana’s criminal statutes identify multiple levels of criminal culpability for homicide, from first-degree murder to negligent homicide. The offense of first-degree murder generally requires a “specific intent to kill or to inflict great bodily harm,” along with other factors, such as the commission of a felony like kidnapping, burglary, or arson. La. Rev. Stat. § 14:30. Second-degree murder generally only requires the “specific intent” element. La. Rev. Stat. § 14:30.1. The second-degree murder statute also includes a provision, however, that makes it an offense when someone “unlawfully distributes or dispenses a controlled dangerous substance” to someone who dies a a result of “ingest[ing] or consum[ing]” that substance. Id. at § 14:30.1(A)(3).

Texas law places a wide gulf between laws dealing with illegal drugs and other criminal laws. The Texas Controlled Substances Act (TCSA) is found in Chapter 481 of the Texas Health & Safety Code, and it primarily deals with the manufacture, delivery, and possession of controlled substances. Chapter 19 of the Texas Penal Code deals with homicide, identifying four distinct offenses:  murder, capital murder, manslaughter, and criminally negligent homicide. The definitions of these offenses make no specific mention of illegal drug delivery or use.

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smartphoneOur legal system is waging an ongoing struggle to keep up with the sorts of opportunities that new digital communications technologies offer for criminal activity like fraud, theft, and harassment. Sometimes, law enforcement identifies a clear technology-based threat to other individuals or the public. At other times, police and prosecutors pursue people—often children and young adults—for alleged conduct that is at best naive or immature, and at worst non-criminally negligent. Many of these types of alleged offenses involve the use of smartphones and social media in ways that do not make sense to people who remember a life before such technology existed.

Criminal statutes have evolved, in a sense, as our society and technology have advanced. In the 19th century, people began to use the U.S. Postal Service to perpetrate fraudulent schemes. Our legal system created the distinct federal and state offenses of mail fraud as a result. In the 20th century, telephone and television technology drove the creation of wire fraud statutes. Similar changes have occurred with regard to laws against harassment and threats, which can occur via the telephone and email as well as in person.

The only real difference between many alleged offenses today, as opposed to similar ones occurring decades ago, is often the use of new communications technologies, which amplify what might have otherwise been a private remark. A teenager in Texas, for example, was charged with making a terroristic threat, Tex. Pen. Code § 22.07, in 2013 after he allegedly posted in an online video game forum that he was going to “shoot up a kindergarten,” along with other alleged threats that he says were “a poorly thought out sarcastic joke.”

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Krispy Kreme donutsPolice have devised a vast array of tools and techniques for drug-related investigations. In any prosecution that involves drug possession, the state must be able to prove that a defendant actually possessed illegal drugs. Laboratory tests are available but take time and are often subject to a backlog. Many police departments have turned in recent years to field-testing kits. Unfortunately, these kits are highly prone to errors, including false positive results. In addition to numerous appeals and other post-conviction claims, several lawsuits around the country are challenging the use of these tests on various constitutional grounds.

During a traffic stop, a person’s vehicle may be subject to search without a warrant under several recognized Fourth Amendment exceptions. The automobile exception allows police to search a vehicle if they have probable cause to believe that part of the vehicle contains contraband. This exception derives from the plain-view doctrine, which states that police may search or seize property that is within their line of sight, such as something visible to the officer while standing outside a vehicle during a traffic stop. The exigent circumstances exception also applies, since the vehicle’s mobility creates the risk of losing evidence.

If an officer finds something they suspect might be an illegal drug, the field-testing kit allows them to test it on the spot. A typical kit contains several vials of chemicals that change color if they come into contact with specific drugs. One problem is that some of these chemicals also change when they come into contact with various common and entirely legal substances. Officer errors can also result in false positive results, such as if an officer mishandles one or more vials, if rain or other elements interfere with a test, or if poor lighting conditions result in an incorrect evaluation of a test result. Regardless, a positive test result almost invariably leads to an arrest, and defendants are often pressured to enter a quick guilty plea, even if they maintain their innocence.

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Spider monkeyThe legal status of marijuana has become increasingly uncertain, ever since California became the first state to allow marijuana for medical purposes in the 1990s. More than half of all U.S. states have reduced criminal prohibitions on marijuana or decriminalized it altogether. It remains completely illegal under federal law, which creates an obvious and ongoing conflict between state and federal law enforcement. The Drug Enforcement Administration (DEA) recently affirmed marijuana’s status as a Schedule I controlled substance, and the Food and Drug Administration has declined to recognize any medical value. At the same time, Congress has effectively prohibited the Department of Justice (DOJ), which includes the DEA, from interfering with the implementation of state medical marijuana laws. A federal appellate court decision has held that federal prosecutors may not pursue drug charges for conduct permitted by state law.

Federal law describes Schedule I controlled substances as those with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for medical use. 21 U.S.C. § 812(b)(1). “Marihuana” is currently included under Schedule I in both the U.S. Code and DEA regulations. Id. at § 812(c)(I)(c)(10), 21 C.F.R. § 1308.11(d)(23). A new rule issued by the DEA affirms marijuana’s Schedule I designation, rejecting calls to have the drug rescheduled. 81 Fed. Reg. 53846 (Aug. 12, 2016). The agency did, however, slightly loosen the restrictions on the cultivation of marijuana for medical research. Any slight progress in the DEA’s position on marijuana seems to be increasingly at odds with the 28 U.S. states, along with the District of Columbia, Guam, and Puerto Rico, that now allow marijuana use for medical purposes.

About a year before the DEA issued its latest rule, the FDA reportedly advised the DEA to maintain marijuana’s Schedule I status. Many of the documents related to the FDA’s position on this issue were not publicly available until VICE News published over 100 pages it obtained from the agency. While the FDA has called for the rescheduling of certain “constituents” of marijuana used to treat conditions like epilepsy, it has opposed rescheduling marijuana itself. Its report to the DEA includes findings that marijuana can be addictive for monkeys, which apparently contributed to the recommendation that marijuana remain subject to stricter controls than cocaine and heroin.

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The internet and social media have created incredible opportunities for communication and interaction across the world. Unfortunately, this includes more than just friendly or polite communications. The phenomenon of “trolling,” broadly defined as posting or sending messages deliberately intended to upset others, has existed since the very beginning of the internet, but social media has created vast new opportunities for “trolls.” Many countries have enacted laws criminalizing various forms of internet trolling, but such efforts have been limited in the U.S. The First Amendment’s guarantee of freedom of speech would make enforcing such a law difficult, and crafting a law that targets only the most abusive, inexcusable forms of trolling, as opposed to speech that is merely controversial, is difficult if not impossible. The unintended consequences of such a law could be significant.

Part of the problem with efforts to legislate “trolling” is the difficulty defining the term. A CNN article describes it as a person who “deliberately disrupt[s] online discussions in order to stir up controversy.” The key elements of trolling seem to be a deliberate act of communication with the sole or primary motivation of causing offense or distress. The word’s meaning has grown over the brief history of the internet to encompass a wide range of behaviors, which range from relatively harmless pranks to acts that might fall under existing laws regarding cyberstalking or even hacking.

The use of telecommunications equipment, including telephones, mobile devices, and computers, to harass or stalk someone is prohibited under federal and state cyberstalking laws. Under federal law, the content of the transmission must be “obscene or child pornography,” and it must be made “with intent to abuse, threaten, or harass another person.” 47 U.S.C. § 223(a)(1)(A). Texas law contains similar provisions regarding cyberstalking, Tex. Pen. Code § 33.07(b). It also prohibits “online impersonation,” which it defines to include posing as a person online or posting their private information without their permission and “with the intent to harm or defraud any person.” Id. at § 33.07(a).

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briefThe right to counsel in criminal proceedings is one of the key rights guaranteed by the Sixth Amendment to the U.S. Constitution, but this right remains in many ways elusive for a significant number of people. A lengthy series of court decisions roughly defines the circumstances in which the government must provide counsel, at its own expense, for indigent defendants. An important ruling regarding the right to counsel in criminal appeals is Anders v. California, 386 U.S. 738 (1967). A court-appointed attorney who concludes that no non-frivolous grounds for appeal exist cannot simply withdraw from representation. The attorney must submit a document, commonly known as an Anders brief, identifying potential grounds for appeal, whether the attorney considers them frivolous or not. The defendant may then continue the appeal pro se, or the court may appoint new counsel. Earlier this year, a Texas appellate court affirmed that Anders briefs are required in certain non-criminal cases. In re N.A., No. 05-15-01220-CV, slip op. (Tex. App.—Dallas, Jan. 25, 2016).

The U.S. Supreme Court first recognized the federal government’s obligation to provide counsel for indigent defendants in the 1930s. Johnson v. Zerbst, 304 U.S. 458 (1938). It did not extend this duty to state felony cases for another 25 years. Gideon v. Wainwright, 372 U.S. 335 (1963). Exactly when an indigent defendant becomes entitled to appointed counsel is still a matter of dispute to this day. The Supreme Court held in Brewer v. Williams, 430 U.S. 387 (1977), that the right to appointed counsel begins “at least…at or after the time that judicial proceedings have been initiated.” Id. at 398. Texas and many other states have expanded the right to appointed counsel to indigent individuals in certain civil proceedings, including some juvenile cases and cases in which the state is seeking the involuntary termination of parental rights. Tex. Fam. Code § 107.013(a)(1).

Anders involved a dispute between a defendant and his appointed counsel over whether to file an appeal. The attorney concluded that there were no non-frivolous grounds for appeal. He notified the court that he would not file an appeal and that the defendant wanted to file one pro se. The notification consisted solely of a letter from the attorney. The defendant’s appeal was not successful, and he sought to reopen the case, claiming denial of the right to counsel. The Supreme Court eventually ruled that the attorney’s letter did not meet the standard of representation required by the Sixth Amendment.

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marijuanaMore than half of the states in the U.S. have enacted laws allowing marijuana use for medicinal purposes with a doctor’s prescription. A few states have gone even further by decriminalizing the recreational use of the drug. Under federal law, however, marijuana is still a Schedule I controlled substance, and the federal government shows no signs of relaxing its stance. Even in states that have, to varying degrees, decriminalized the cultivation, distribution, purchase, and possession of marijuana, federal authorities may still pursue charges. A ruling issued by a federal appellate court in August 2016 could significantly alter the power dynamic between the federal and state governments on this issue. The court ruled that a clause in an appropriations bill passed by Congress in 2015 effectively prohibits federal prosecutors from pursuing marijuana-related charges against people whose alleged conduct was permissible under applicable state laws.

Currently, 28 U.S. states, along with the District of Columbia, Guam, and Puerto Rico, have passed laws decriminalizing marijuana for at least some uses. Seventeen states, including Texas, now allow the use of certain low-THC cannabis products for specified medical purposes. Texas, for example, allows the use of low-THC cannabis with a doctor’s prescription for the treatment of intractable epilepsy. See Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001(3).

Despite this multitude of state laws, the federal government often continues to enforce federal marijuana laws in those states. Enforcement against individual users by federal law enforcement is relatively rare, but businesses engaged in cultivating and dispensing medical marijuana have found themselves the targets of federal investigations and prosecutions.

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AspirinIn the four decades of the United States’ “War on Drugs,” law enforcement officials have adopted a vast array of technologies that detect the presence of controlled substances. This includes prepackaged drug-testing kits that allow officers to test substances in the field but that have also reportedly led to a significant number of “false positive” results. Because of criminal court procedures that encourage plea bargaining, many people have pleaded guilty to drug crimes they did not commit because of false positive field test results. A report by the New York Times and ProPublica highlights a case in Houston, Texas, in which a woman pleaded guilty to possession of crack cocaine, only to be exonerated years later by more thorough testing of the material seized from her car.

The Fourth Amendment requires police to obtain a warrant before conducting a search or seizing property. Exceptions to this requirement include the “plain view rule,” which allows police to seize property that is within their line of sight, and the vehicular exception, which allows them to conduct a reasonably limited search of a vehicle during a traffic stop. If an officer sees something in a vehicle that they believe is a controlled substance or drug paraphernalia, they can legally seize that material. Field testing kits allow them to make a quick assessment of the seized material, except the kits themselves are not always reliable, and individual officers may not use the kits correctly.

The New York Times report describes the field test kits as containing vials of chemicals that turn a certain color when exposed to certain chemicals found in illegal drugs. For example, one vial contains a cobalt thiocyanate, which turns blue when it comes into contact with cocaine. Over 80 other compounds can also cause it to turn blue, however, “including methadone, certain acne medications and several common household cleaners.” The tests may also be affected by environmental conditions like hot or cold weather, and lighting conditions can affect officers’ ability to correctly assess test results. Despite these problems, many police departments use these kits extensively.

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