Category: Legislation

New Jersey Overhauls Its Bail System

Effective January 1, 2017, New Jersey began implementing its newly revised bail system (P.L. 2014, Ch. 31 known as the “Bail Reform Law”).  As judges do under the Federal Bail Reform Act, New Jersey judges will now focus on whether an accused presents a significant flight risk, is threat to public safety, or both when deciding whether to detain the accused while awaiting trial.

A study by the Drug Policy Alliance in New Jersey, released in 2013, found that 39 percent of inmates were eligible to be released on bail, but that many could not meet amounts as low as $2,500.

The new system, of course, is not without controversy. While striving to achieve fairness and alleviate the overloaded system, many (particularly those in the bail bond business) rally against it stating that dangerous offenders are released out on the streets. But “judicial officials reject the idea that dangerous criminals are flooding communities.”

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International Megan’s Law (H.R. 515): Necessary? Constitutional?

Virtually unnoticed, on February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring  that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.

The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics  assert that there has been no connection established between people on sex registries and international sex trafficking; that the branding passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in traveling, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.

A personal observation:  Is there no limit to the US urge to stigmatize and punish the other? Is the urge to punish and stigmatize really justified by the desire to help prevent sex crimes in other countries? Shouldn’t that be done by the legislatures of other countries, who might want to restrict the entry of various people and are fully capable of doing so?  Reciprocal international efforts to limit sex trafficking are legitimate, but this Act is overbroad, unhealthy, and probably unconstitutional.

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Implications of the Suit Against the President’s Immigration Order

The U.S. Supreme Court recently agreed to hear a challenge to President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and an expanded version of the Deferred Action for Childhood Arrivals program (DACA). Texas and twenty-five other states sued the administration to prevent DAPA’s implementation on three grounds.

Here are some initial thoughts from Vanessa H. Merton, Professor of Law and Director of the Immigration Justice Clinic at Pace Law School, about the relevance of this ruling to the criminal justice community. She notes:

If the plaintiff states were to prevail in this case, it should mean that a citizen could  sue a local district attorney for 1) failing to take care to faithfully execute the law because s/he has not rounded up and prosecuted to the maximum extent of the law every single litterer whose lawless littering may have diminished the value of my property, or 2) failing to enforce  to the maximum – no plea-bargaining – every single inspection sticker violation, noncompliant equipment violation, or moving violation that might conceivably cause excess traffic and the risk of unsafe vehicles.  As much as prosecutorial discretion can be abused, a world without this kind of prosecutorial discretion would be absurd and dysfunctional.

Ironically, the temporary suspension of deportation available in these Presidential executive-order programs would not be available to most people who have any significant involvement with the criminal justice system.  No one with either a felony conviction or a conviction for many misdemeanors can qualify.

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Attacking Prostitution Through Legal Reforms

POST WRITTEN BY: Jessica Mlinar (’16), J.D. Pace Law School

Northern Ireland passed a law on June 1, 2015 making “buying sex” a criminal activity. “If convicted, a person could be fined, sentenced to a maximum of one year’s imprisonment, or both. It remains an offense to keep or manage a brothel, but the new law removes criminality from soliciting in the street or public place.” The efforts stem from the idea that the correct way to minimize prostitution and other activities of that nature is to decrease the demand for them rather than punish the prostitute. Andrea Matolcsi, a spokeswoman for Equality Now, which is an international women’s rights group, wholeheartedly supports these efforts. In her opinion, “the legalization and decriminalization approach is not benefiting anyone.”

By the same token, other countries believe that the best approach is to legalize both the selling and buying of sex, largely due to the fear that passing laws turning purchasing sex into a criminal activity will cause more harm than good. Buying sex is not a novel idea; it has been around for decades and any controversial move may consequently drive the activity underground. Additionally, it is feared that  strict laws outlawing these activities will increase violence against women.One sex worker, Katie McGrew, explains a concern that this new law will lead to “situations where more women are competing for fewer clients [which] has dangerous consequences, including charging less, offering services they wouldn’t have previously, and agreeing to unsafe sex.”

Further, the migration of the newly criminalized activity presents another problem. The Immigrant Council of Ireland stated that there was no doubt that men would “make the short journey over the border in order to escape the law.” Some believe that this movement has already begun and is evidenced by the increase in advertisements in the over-the-border areas.

Nonetheless, other countries such as France and Irish Republic are considering enacting similar legislation that criminalizes the conduct of a client, while protecting women who are in the business of providing sex. “ The Nordic Model” (social and economic model of the Nordic countries which makes purchasing sex a criminal activity) has been adopted in Canadaand Sweden, as well as Norway. Only time will tell which one of the two mainstream routes proves to be more successful.

In my view, this worldwide issue does not have a single solution. It is clear that authorities themselves struggle to figure out which approach works the best. This is because no one model has proven to be one hundred percent effective. Nonetheless, I believe that adopting the Nordic model is the right way to go. Passing a law criminalizing this undesirable activity shows just how important it is for Northern Ireland to manage and limit prostitution, or rather criminalize purchasing sexual services. Decriminalization can often be perceived as giving up, rather than as a way of taking control and fighting harder.

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NYC Acts to Eliminate Bail for Low Level Offenders

In response to the growing controversy over detaining arrestees simply because they do not have the money to post bail, NYC has acted to eliminate bail for some low level offenders. For more details, see Rick Rojas, New York City Introduces Bail Reform Plan for Low-Level Offenders, New York Times (Jul 8, 2015).