by Jayson Hawkins

The Covid-19 pandemic has changed the way we live and conduct our business, yet some of those changes were long past due. Many relate to safety, others to convenience, and a few —namely with the U.S. Supreme Court — have brought transparency.

For the first time in its history, the Supreme Court heard oral arguments over a conference call in May 2020. Ten arguments involving 13 cases were scheduled over six days. The measure was deemed necessary for the Supreme Court to continue to function amid the pandemic, as the majority of the justices are considered especially vulnerable to the coronavirus because of age and/or underlying medical issues.

Perhaps more significant than the justices working from home was that the proceedings were broadcast live to the general public, which had never been done before. On 27 prior occasions, the Supreme Court had allowed audio recordings of arguments to be released on the day they occurred, but the only way to follow the proceedings in real time was to attend in person. The Supreme Court has always been a public institution, but the necessity of having to be in Washington, D.C., early enough to get in line for ...

by Jayson Hawkins

The due process clause of the 14th Amendment to the U.S. Constitution provides that “no person shall be deprived of life, liberty, or property without due process of law.” The intent of the amendment was to restrain government actors from arbitrary or capricious acts of violence, imprisonment, or confiscation.

The 14th Amendment was one of several constitutional changes made in the wake of the Civil War. The necessity of guarantees outlined in the due process clause had become all too apparent in the Reconstruction South. The authors of the amendment reported to Congress that across the South orchestrated campaigns of violence and intimidation were being carried out against freed Blacks by White police officers. In the summer of 1866, for example, policemen were instrumental in leading organized attacks on Blacks that left hundreds dead. The conclusion of Congress, and the state legislatures that would ratify the amendment, was that without new constitutional guarantees, state and local governments in the South would not respect the lives or fundamental rights of Black citizens.

The amendment was duly ratified, and Congress enacted the Civil Rights Act of 1873, which encoded the amendment in Chapter 42
§ 1983 of the U.S. ...

by Jayson Hawkins

A string of recent polls suggests a dramatic shift in American public opinion about the use of force by police, especially against people of color. The Washington Post released a poll in early June that found 69% of Americans believe the killing of George Floyd by Minneapolis police is indicative of systemic problems in law enforcement, while 29% contend it’s an isolated incident.

Six years ago, a poll taken after a similar killing showed that only 43% of Americans saw a wider trend of excessive police violence.

The new acknowledgment of problems in policing seems to cut across many social boundaries. Three-quarters of Americans support the protests sparked by Floyd’s killing, including a majority of Republicans and independents. A June poll released by Monmouth found that a strong majority of Americans, including half of White Americans, think police officers are more likely to mistreat Blacks than Whites.

The New York Times described this shift in opinion as a “drastic change,” and it is not necessary to look far afield to discover the impetus behind the change. While the influence of social justice activists and advocates for criminal justice reform should not be discounted, the most potent catalyst ...

by Jayson Hawkins

Phillip K. Dick made the concept of “pre-crime” famous in his novel Minority Report, which described a future where people with “pre-cognitive” abilities could predict a crime and those predictions were used to arrest and convict “offenders.”

Without the luxury of pre-cognitive abilities, modern police agencies have come to rely on a suite of surveillance and data-crunching techniques called “predictive policing.” Predictive policing is a process whereby algorithms attempt to predict instances of crime, as well as victims and offenders, based on previous data.

While in theory this process could possibly enhance public safety, in practice it creates or worsens far more problems than it solves. Critics of predictive policing assert that problems with bad data, institutional biases in law enforcement, and a lack of transparency and public input undermine any effectiveness this new technique might bring to the table.

This criticism is not based on an instinctive distrust of law enforcement. AI Now Institute at NYU has studied predictive policing in 13 U.S. police jurisdictions that had recently been cited for illegal, corrupt, or biased practices. The study found that in nine of these jurisdictions, the predictive policing system produced outcomes that reflected the problems ...

by Jayson Hawkins

Despite the fact that the rights to free speech and the petitioning of the government for redress of grievances are enshrined in the U.S. Constitution, the American government has a long history of treating dissenters and progressive activists like criminals. Dissent was actually criminalized during World War ...

by Jayson Hawkins

A prime consideration in determining guilt and assessing punishment for a crime has long been the mental state of the accused. Legal precedents that weighed the workings of the human mind can be traced to the 17th century, according to Deborah Denno of Fordham University School of Law. Responsibility for criminal acts before the Enlightenment were laid at the feet of “the devil,” though this cause seldom resulted in mercy for defendants.

Perhaps the most famous case involving one’s mental state comes from England in 1843, where Daniel McNaughton was acquitted by reason of insanity for slaying the British prime minister’s secretary. The McNaughton rule has since been adopted throughout the U.K. and by half the states in the U.S., yet it was not until the 20th century that actual clinical diagnoses became widely recognized in the courtroom. Even so, many judges and juries have been reluctant to rely on psychological arguments. What has been lacking is a hard science of results that can be measured and reproduced.

Neuroscience is changing that.

Advances in technology have allowed researchers to begin mapping mental processes and deficits. A pivotal case in 1981 saw the attorneys for John Hinckley, Jr. ...

by Jayson Hawkins

Automated license-plate readers (“ALPRs”) have come into wider use among law enforcement circles, touted for making the jobs of police easier and more efficient.

The technology employs high-speed cameras in cop cars, on top of streetlights, and other  locations to record the license plate of every single vehicle that passes. The data are automatically uploaded to a computer vehicle network that tracks the precise place and time each one is spotted, thus allowing an algorithm to flag speeding and other traffic violations.

It is also capable of tracking every vehicle on the road, creating a profile of where each one went, how long each stayed, and other details that pry into the lives of private citizens.

Authorities claim the technology is only used to monitor “people of interest,” yet there is little-to-no oversight as to which individuals are placed on such a list or who might have access to the resulting data. Civil rights advocates have pointed out that ALPRs can be turned against political rivals or any other group by tracking which vehicles show up at protests, union meetings, religious services, health clinics, or gun stores.

An investigation launched in the summer of 2019 by the ...

by Jayson Hawkins

Making a decision about what is or is not a “firearm” under the law would seem to be a fairly straightforward process, but recent controversy about the regulations used by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosive (“ATF”) has shown that the definition of a gun is not nearly as clear as it seems.

The legal definition of a firearm is laid out in the 1968 Gun Control Act. That law’s definition includes not only what most people would think of as a gun but also “the frame or receiver of any such weapon.” 18 U.S.C. § 922(a)(3). Defining what a receiver or frame is, however, was left up to regulating agencies – in this case, the ATF. The ATF defined a receiver as having three elements: hammer, bolt or breech-lock, and firing mechanism. This “receiver,” even without the rest of the weapon, is legally considered a firearm in itself.

The problem with this definition, according to former ATF agent and firearms expert Dan O’Kelly, is that roughly 60 percent of the guns in America do not have a single part that fits this description. As a practical matter, this means the ATF should not ...

by Jayson Hawkins

For nearly a century, one of the most important duties of the FBI has been to act as the primary counterterrorism force on American soil. Unfortunately, throughout that time, the FBI has shown a troubling tendency to surveil dissidents and view challenges to the status quo as national security threats. This tendency began with the young Bureau’s first large-scale raids and has continued, according to a recently released report, up to today.

The FBI began as the U.S. Department of Justice’s Bureau of Investigation in 1908. Founded by Theodore Roosevelt despite congressional resistance, this early Bureau was intended to be the leading edge of a national response to anarchists and violent unionists. After successfully silencing opposition to World War I, the Bureau began raids in 1919 aimed at what it called “subversives and Communists” but which really targeted Eastern European immigrants, Italians, and labor organizers, according to Alice Speri in her article, “The FBI Has a Long History of Treating Political Dissent as Terrorism.”

The so-called Palmer Raids (after then-Attorney General Mitchell Palmer) lasted months and led to the arrests of over 10,000 people in a dozen cities, though none of those arrested were even tied to ...

by Jayson Hawkins

It is not unheard of that the quest for justice occasionally ends in a mistrial.

That the defendant would then be retried six times for the same crime, however, is less of a misfire than it is a miscarriage of justice—especially when four of the verdicts were thrown out due to prosecutorial misconduct.

Curtis Flowers’ legal purgatory has stretched into its third decade as he awaits a seventh trial for allegedly murdering four people in 1996.

He has never wavered from maintaining his innocence, yet Doug Evans, the district attorney now serving his eighth term for the Fifth Circuit Court district in Mississippi, has consistently resorted to illicit tactics to obtain guilty verdicts against Flowers. The U.S. Supreme Court overturned the most recent one in June 2019 after court records showed Evans attacked the credibility of witnesses without reason, introduced inadmissible evidence, and used race to disqualify potential jurors. Despite Mississippi’s large Black population, Flowers’ juries routinely lacked any fellow Blacks.

Evans’ flagrant violations of courtroom procedure not only were overlooked by the voters who returned him to office last year, but he also managed to avoid any public discipline for his actions. While people in other ...