Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: June 2012


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Chief Justice Roberts Rehabilitates My Faith in the Judiciary

I won’t say my faith is completely restored, but Chief Justice Roberts went a long way towards rehabilitation my faith in the Supreme Court. (Justice Scalia, on the other hand, is irredeemably partisan and unprincipled.) With the Chief Justice’s opinion on the Obamacare case, we now know that there are at least a couple conservatives on the Court who make decisions based on principles, instead of what is best for the Republican party.

Back in April, I worried that the Court would make a decision based on bad principles. I don’t entirely agree with the Court’s decision, but I have no doubt that Chief Justice Roberts arrived there through a principled, logical thought process.


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Mandatory Life Terms Unconstitutional

A judge must consider youth and the nature of the crime when they sentence juveniles to prison, the United States Supreme Court ruled yesterday in Miller v. Alabama. The case involved two young juveniles who were sentenced to life in prison without parole in their respective states, Arkansas and Alabama. Each of the men were 14 when they took part in unrelated homicides. Both states imposes life in prison without parole as a mandatory sentence, which the Court said violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The decision will not necessarily free either of the men, Kuntrell Jackson of Arkansas and Evan Miller of Alabama. Nor does it prevent judges in the future from imposing life without parole on juveniles. However, it does require judges to at least consider the age of the offender, any mitigating circumstances, as well as the nature of the crimes.

This is a small, but positive step in the realm of criminal justice. Mandatory sentencing schemes are bad for society and bad for the accused. Judges should always be able to consider the circumstances of a crime before imposing sentences. Mandatory sentences are more about revenge than about crime prevention or reform. Not allowing a judge to consider circumstances in not only unjust, it’s silly.


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Arizona Immigration Law Goes Down; Utah Next?

We have a clearer picture of the future of Utah’s immigration law today, and there is both good news and bad news for immigrants in Utah. The United States Supreme Court handed down a ruling on Arizona’s immigration law and found three of the four parts to be unconstitutional and at odds with laws enacted by Congress. Utah’s immigration law is currently on hold; in February U.S. District Judge Clark Waddoups put off issuing a decision on Utah’s law until he received “additional guidance” from the Supreme Court. Now that the Supreme Court has spoken, the Utah case will start moving again.

Parts of the Utah law are likely to be found unconstitutional. According to Utah Attorney General Mark Shurtleff, the ruling prohibits police from conducting a warrantless arrest of immigrants. This is a minor victory for immigrants in Utah since it means that Utah cannot arrest someone for their immigration status alone.

The part of the Arizona law which the Court did not strike down requires police officers to verify the immigration status of everyone they detain or arrest. The Court left open the possibility that it would later strike down the law, but declined to do so because it is not yet clear that Arizona will enforce the law in an unconstitutional manner. According to the Court, communication between local law enforcement and Immigration and Customs Enforcement (ICE) is encouraged by Congress, and therefore Arizona’s law was not preempted by federal law. The Court left open the possibility that the law could be overturned on other grounds.

Utah has a similar provision requiring police officers to check the immigration status of people they detain or arrest. Unless Utah implements the law in an unconstitutional manner—such as a racially motivated way—that part of the law is likely to stand. It remains to be seen how long a police officer can detain someone to verify immigration status.


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Rules Still Hazy for Deportation Relief

Over the weekend, we learned little about how the Obama administration is going to implement its new policy of deportation relief. The procedures for application are unknown as well as how someone proves that they are among the eligible immigrants. The Department of Homeland Security directive from June 15 applies to undocumented immigrants under 30 who came to the United States before they turned 16, but the federal government has prosecutorial discretion over who it will grant a Deferred Action.

The details of the work permits are also a little hazy. The administration said that they will be valid for two years and eligible for renewal, but the application procedures have not been laid out.

In the meantime, beware of con artists. Specifically, do not hire a “notario público” (notary public) to do any legal work for you. Unlike most Latin American countries, notarios públicos are not attorneys and cannot practice law. They have no ability to get you a Deferred Action or a work permit. In due time, we will know the proper procedures for the new policy.


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Obama’s ‘Stopgap Measure’ for Immigration

Immigrants who were brought to the United States as children received a bit of good news today. The Obama administration announced, effective immediately, it will block deportations of certain individuals. To be eligible, an immigrant must be no more than 30 years old, have arrived in the country before they turned 16, and have lived in the United States for five years. They must also have no criminal record and have a high school diploma, or be serving in the military or have been honorably discharged.

Eligible immigrants can request a “deferred action” that eliminates the threat of deportation for two years. However, the plan does not create a pathway to U.S. citizenship. President Obama called the policy a “stopgap measure” and “the right thing to do.”

The new policy has obvious shortcomings for undocumented immigrants, but if you or one of your family members are among the eligible people, the news has to ease your fears a bit. For one, it may spur Congress to implement a permanent pathway to citizenship by passing the DREAM Act or similar legislation. It also will give you a two year reprieve from deportation, and give you a work permit, which should make it a little easier to work legally.


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Science and Forensics, Part 3: Bite Mark Analysis

Part 1: Introduction
Part 2: Fingerprints

Bite mark analysis is an area of “science” that is unique to crime investigation. Forensic dentists are usually self-employed and have no oversight. There are no rules or regulations governing the industry, and no government entity has ever reviewed the validity of bite mark evidence.

From the start, bite mark analysis has been a dubious science. As the Chicago Tribune outlined, the field was born in 1970 when eight dentists sought to seek recognition from the American Academy of Forensic Sciences as a legitimate way to identify criminals, but they needed 10 members. They scoured the meeting rooms and were able to find 2 other pathologists who also happened to hold dental degrees.

The field hasn’t improved much since then. 42 years later and forensic dentists still disagree about whether or not a particular mark is even a bite. Thanks to DNA testing, we now know that innocent people have been convicted in cases where the primary evidence was bogus bite mark analysis.

A bite leaves an imperfect impression on the skin, and irregularities in bodies cause distortions. Furthermore, teeth, unlike DNA or fingerprints, are impermanent. Even a study conducted by the American Board of Forensic Odontology found a 63.5% rate of false identifications, and yet courts continue to accept bite mark analysis into evidence.


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The Utah Driving Privilege Card

There’s a lot of misinformation about the Utah Driving Privilege Card (DPC), which allows undocumented immigrants to legally drive in Utah. The program has been in place since 2005 and was designed to encourage undocumented immigrants an avenue to drive legally and obtain auto insurance. Unlike a regular driver’s license, the DPC must be renewed each year and also is not supposed to be used as legal identification.

There was some concern when the program was instituted that no one would obtain the privilege card because it’s more or less a tacit admission of undocumented immigrant status. However, it has not worked out that way in practice. The Utah Driver License Division only notifies law enforcement or Immigration and Customs Enforcement (ICE) if the applicant has an outstanding warrant for arrest or has been accused of a felony. As a consequence, Utah issues about 41,000 driver privilege cards per year.

Currently, here is what is required every time a person applies for a DPC: 1) A birth certificate or passport, along with a certified translation if the document is not in English; 2) Another form of identification such as a previous DPC, a Matricular Consular Card from the Mexican Consulate in Utah, another state’s driver’s license, or even an employee ID; 3) Either a valid social security number or an Individual Tax Identification Number from the IRS.

There are also some items you will need to get your first DPC: 1) Proof of Utah residency using certain mail or other documents (this is also necessary if you are changing your address from a previous DPC); 2) A fingerprint card placed in a sealed envelope from an authorized law enforcement agency; and 3) Proof of a driver’s education class, with certified translation into English, if necessary.

The fingerprint card tends to worry immigrants the most. In practice it has not led to a noticeable uptick in deportations. As mentioned previously, there are specific circumstances when the Driver’s License Division notifies law enforcement, but otherwise the fingerprint card is not used.