The Law(s) Behind Episode 7 of Undisclosed

Last night’s episode of the Undisclosed Podcast was pretty legally dense, so I thought that I would do a post explaining some of the legal topics that were discussed.

1. Korematsu v. United States

In the wake of Pearl Harbor, FDR issued Executive Order 9066. This Order authorized the internment of both Japanese resident aliens and American citizens with Japanese ancestry. The Order also authorized regional military commanders to designate “military areas” from which these individuals could be excluded. Using this power, the commanders excluded these individuals from the entire West Coast, leading to forcible relocation.

At the time, Fred Korematsu, an individual with Japanese ancestry, lived in the San Francisco Bay Area and had a good job after being rejected by the military due to poor health. To avoid his internment, he moved to a nearby town, changed his name, had facial surgery, and claimed to be Mexican-American.* Eventually, he was found out and brought a Constitutional challenge to Executive Order 9066. In an opinion that rivals Dred Scott as the worst in the history of the Supreme Court, the Justices deemed the Order constitutional.

2. Percent of Murder Suspects Who Are Given Bail

The Bureau of Justice Statistics has great information about a number of aspects of the American criminal justice system. In the podcast, I noted how 60% of murder suspects are given some type of bail package. My information comes from this BJS Report. As the report notes, “defendants charged with murder (40%) [are] the most likely to be denied bail.” Of course, that means that 60% are given some type of bail. That’s not to say, thought, that most murder defendants make bail. As the report notes, “[m]urder defendants (24%) [a]re the least likely to be released prior to case disposition.”

That’s because most murder defendants, like most defendants, are indigent. 80% of criminal defendants qualify for a public defender, as do 90% of capital defendants.

As I also noted on the podcast, there is no right to bail in capital cases. Therefore, a big chunk of the 40% of murder defendants who are denied bail likely consists of those eligible for the death penalty. Moreover, 67% of murder defendants have an arrest record. This is why I argued that Adnan (no prior record, not death-eligible) should have been given release, especially given that he was willing to put up significant collateral and submit to house arrest/electronic monitoring.

3. Samuel Sheinbein

Here’s an article about the Samuel Sheibnein case that I mentioned in the podcast. 

The Law of Return (Hebrew: חֹוק הַשְׁבוּת, ḥok ha-shvūt) is Israeli legislation, passed on 5 July 1950, that gives Jews the right of return and the right to live in Israel and to gain citizenship.^[1] In 1970, the right of entry and settlement was extended to people of Jewish ancestry, and their spouses.

He’s an article about how the Law of Return allowed Sheibein to flee to Israel (where his father, an attorney, was born), which did not have an extradition agreement with the U.S. at the time. Sheinbein eventually accepted a plea bargain in Israel and was fatally shot in an Israeli prison last year. In 2005, the U.S. and Israel entered into an extradition agreement.

4. Waiver of Miranda Rights

I will take this directly from my forthcoming article, Cloning Miranda:

Studies conducted over the course of more than four decades have consistently found that around 80 percent of adults waive their Miranda rights.[1]  Three decades of research also supports the empirical finding that more than 90 percent of juveniles waive their Miranda rights.[2]

5. Invocation of Miranda

We addressed a few points about this on the podcast. In Fare v. Michael C., the Supreme Court held that a juvenile can be interrogated without his parents as long as the circumstances support a finding of voluntariness:

This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits – indeed, it mandates – inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. 

In J.D.B. v. North Carolina, the Supreme Court did not change this analysis but did note that it is “commonsense reality…that a child’s age properly informs the Miranda custody analysis.”

While Maryland is not among them, many jurisdictions use/require a juvenile Miranda form that notifies a minor of his right to have his parents present during his interrogation.

6. No Death Penalty for Minors

Finally, the most important part of the episode. In 1987, the Maryland legislature amended the state’s death penalty statute so that minors were no longer eligible for capital punishment. Eighteen years later, the Supreme Court deemed the death penalty to be unconstitutional for juvenile defendants in Roper v. Simmons.

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*Nowadays, you’d likely see the opposite.