Monday, April 20, 2015

A Few Thoughts on Johnson v. United States and the Void for Vagueness Doctrine

While most Court watchers are gearing up for the same sex marriage cases, I’ve been eagerly awaiting this morning’s argument in Johnson v. United StatesJohnson is an odd case.  The Supreme Court originally granted cert on the narrow issue whether possessing a short-barreled shotgun qualifies as a violent felony under the Armed Career Criminal Act.  The parties briefed that issue and argued it before the Court.  But then, rather than deciding the case, the Justices set the case for re-argument and asked the parties to brief whether a portion of the ACCA is unconstitutionally vague.

Over at SCOTUSBlog, Rory Little has a very good overview of the case. He also summarizes the Solicitor General’s brief on the vagueness issue, calling it a “tour de force.”  I agree with Little that the government’s brief is quite good.  But I wanted to take a quick minute to articulate what I see as a relatively significant oversight in the Solicitor General’s analysis.

The government’s brief, which can be found here, argues that, because the relevant clause of the ACCA involves a non-capital sentencing issue, the defendant’s burden to demonstrate vagueness is higher than it would otherwise be.  In particular, the government says “the standard to invalidate a sentencing provision as vague is, at a minimum, much more demanding than the standard that applies to a statute defining criminal conduct,” and it cites Chapman v. United States, 500 U.S. 453 (1991), for this point (p. 17).  I think that this government argument fails to appreciate how much the Court’s Apprendi line of cases have changed the constitutional landscape surrounding sentencing provisions.

Chapman involved a statutory mandatory minimum sentence for distributing LSD.  The question presented in that case was whether the weight of the pure LSD or the weight of the LSD plus the blotter paper on which the petitioners sold their LSD was the legally relevant weight that triggered the mandatory minimum.  One of the arguments that the petitioners raised was that failing to use the pure weight of LSD was arbitrary, that there is a fundamental due process right to be free from deprivations of liberty based on arbitrary determinations, and that the government therefore had to demonstrate that its decision to use the weight of the blotter paper furthered a compelling governmental interest.  The Chapman Court rejected this argument, stating that it was sufficient that the government had a rational basis for its sentencing classification.  Since Chapman, many lower courts have cited the decision for the proposition that legislative sentencing decisions are subject only to rational basis review.

I have little doubt that Chapman is still good law.  As I have written elsewhere, the courts generally do not subject sentencing factors to much constitutional scrutiny.  But Chapman was decided prior to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).  And since it decided Apprendi, the Supreme Court has tended to treat sentencing provisions, such as the one at issue in Johnson, more like new substantive crimes.  To be precise, the relevant portion of the ACCA imposes a mandatory minimum sentence for those defendants who have three previous convictions for violent felonies and serious drug offenses.  One of the most recent decisions in the Apprendi line of cases, Alleyene v. United States, 113 S. Ct. 2151 (2013), held that any fact that increases the mandatory minimum sentence for a crime in an element of that crime, not a sentencing factor.  In treating facts that trigger mandatory minimums as elements, the Alleyne Court held that they must be submitted to a jury and proven beyond a reasonable doubt.

I don’t think that Alleyne dictates any particular result in Johnson.  But I do think that it forecloses the government’s argument about sentencing provisions not commanding the same sort of vagueness analysis as statutes defining criminal conduct.  That is because, after Alleyne, the Court treats this portion of the ACCA as if it is an element of a new statute – one that defines which criminal conduct is necessary for a new sentencing range with a minimum sentence of 15 years.

In any event, I am looking forward to reading the Johnson oral argument transcript as soon as it is available.

Posted by Carissa Byrne Hessick on April 20, 2015 at 11:47 AM in Criminal Law | Permalink | Comments (6)

Sunday, April 19, 2015

Deferred Prosecution Agreements: Right Problem, Wrong Fix

Yglesias has a good write-up of the problems with regulating big financial firms, but he (and Elizabeth Warren) get to the wrong solutions. 

To paraphrase, the problem is that many regulated firms are effectively judgment proof.  We may threaten sanctions against accounting firms that commit fraud, or chemical firms that dump waste into the river, or banks that swindle their counter-parties.  The problem is that the typical criminal sanction is too big, since indictment triggers a run on the firm by its employees, trading partners, and (eventually) creditors.  Prosecutors have therefore basically stopped indicting, leading to the rise of deferred-prosecution agreements, as nicely chronicled by my law school classmate Brandon Garrett. 

For Yglesias, and to lesser degree Garrett, the deferred prosecution agreement is too wimpy.  Since firms know that the government won’t indict, they have no reason to cave, leading to quite defendant-friendly deals.  This leads to under-deterrence.  Yglesias endorses Sen. Warren’s proposed solution, which is to credibly put the threat of indictment back on the table.

But prosecutors are not wrong to avoid indictment, since that leads to over-deterrence.  Over-deterrence is bad not only for firms that sink too much money into compliance, but also for society.  It’s like the problem of medieval justice: if the sentence for every crime is hanging, bandits have no marginal incentive to avoid killing their victims.

My own view, as I sketch in this new draft, is that the problem is caused by the choice of ex post remedies.  When regulators are facing defendants who are, in effect, judgment proof, the better solution is to switch to other incentives.  So, for example, we might impose a tariff on chemicals that would be hazardous if dumped, or use anti-trust to keep banks too small to impose systemic risks.  Obviously, there’s a tradeoff: not all firms will dump the chemical.  A key part of my argument is that regulators can adjust their ex ante prices to account for expected variations in ex post behavior; firms that are at higher risk of dumping pay more for the chemical.  

(Cross-posted at the Law & Economics Prof Blog)

Posted by BDG on April 19, 2015 at 05:28 PM in Article Spotlight, Criminal Law | Permalink | Comments (7)

Monday, April 13, 2015

CrimFest! 2015

As many others have mentioned while reminiscing about Danny, one of his great qualities was how he brought other people together.  PrawfsBlawg was only one way he accomplished this.  He also made lots of introductions and organized workshops.  One of the workshops he organized is called CrimFest! (Yes, the exclamation point was Danny’s.)  It began as a shadow conference at the Law & Society Association’s Annual Meeting, and then eventually became a stand-alone event.

This year’s CrimFest will be held at Cardozo Law School from July 19th-21st.  Registration for the conference closes on Friday May 1st.  More details about the conference and how to register follow after the break.

The conference will begin on Sunday, July 19th with the chance to socialize, but the panels will begin in earnest on Monday morning the 20th of July and will end in the late afternoon of Tuesday, July 21st.  Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay an $85 registration fee to help cover the costs of breakfasts, lunches, and (funds permitting) a Monday evening happy hour.  You may pay the registration fee via this website:  http://www.law.utah.edu/workshops/crimfest/ 

Please note that the registration fee is non-refundable.

As in past years, we will have a substantial number of paper panels for works in progress. Panelists will be required to read and share comments with the other panelists. And, as last year, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.

We have a preference for papers that are in early stages---specifically, papers that will not have been submitted for publication prior to the date of the conference.  We will also allow panelists to present papers that have already been submitted (or accepted) for publication.  But priority will be given to papers in earlier stages, and we will NOT permit presentations on papers that have been published or will be published before August 2015.

We are also limiting presentations to criminal law, criminal procedure, or criminal justice issues.  I know that many of us write in other, related fields.  But one of the strengths of this conference has always been the ability to get feedback from other experts in a particular area.  So please submit proposals only on topics that are in our core areas.

We will also hold some non-panel events during both lunch breaks---such as a discussion of particular teaching issues or other topics that may be of interest to the broader community. If you have an idea for such an event, please let me know ASAP. 

Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too. For all who are interested in attending, please email me no later than Friday, May 1st at carissa.hessick@law.utah.edu

 To reduce any likelihood of administrative error on my part, your email should have a subject heading that states "Proposal for 6th Annual CrimProf Conference," and the body of your email should include:

(a)        The title and abstract for the paper you wish to present;

(b)        Whether this is a true work-in-progress, or whether it will have been submitted for publication prior to July 20th;

(c)         Whether you are willing to serve as chair or discussant for another panel; and

(d)         Any date restrictions you have.  (I cannot promise to accommodate date restrictions, but I will do my best.)

If you would simply like to attend the conference, please send me an email to that effect, and please let me know whether you are willing to serve as chair or discussant for a paper panel.

Finally, please do not submit a proposal or volunteer to serve as chair/discussant unless you know that you will be able to attend.  It can be very disruptive when folks drop out and we need to fill spots on various panels.

I hope that many of you who attended last year will be able to attend this summer, and I hope that we are joined by many new participants as well.   I can’t help but think that one of the best ways that we can honor Danny’s memory is to continue this conference, giving the best comments and writing the best scholarship that we can.

Posted by Carissa Byrne Hessick on April 13, 2015 at 11:46 AM in Criminal Law, Travel | Permalink | Comments (0)

Thursday, April 09, 2015

The Boston bombing case - spring training is over, and it'll be Opening Day soon

Accused Boston bomber Dzhokhar Tsarnaev was, not surprisingly, convicted yesterday of all 30 federal counts that he faced. As he faced a possible death sentence, the case was bifurcated into a guilt phase and a penalty phase. Various commentators noted that defense lawyer Judy Clarke essentially conceded guilt from the beginning of the guilt phase, an indication that the defense goal has been to avoid the death penalty. (Clarke took similar approaches with previous clients such as the Unabomber and Jared Lee Loughner, among others.)

This means that the legal fight is beginning in earnest with the penalty phase, where Clarke can be expected to put up a fierce defense. It's clear from the defense posture that the theory of mitigation will be that Tsarnaev was heavily influenced, if not coerced, by his older brother Tamerlin (who was killed during capture efforts).

Clarke certainly has a formidable reputation with an impressive list of former clients who escaped the death penalty. But of those successes, only Susan Smith and Zacarias Moussaoui actually faced juries in the penalty phase. The others (the Unabomber, Aryan Nations member Brandon Furrow, Olympic bomber Eric Rudolph, and Loughner) all reached plea bargains with the prosecutors. And Moussaoui reportedly avoided a jury vote of death by a single vote.

Predicting the outcome of the penalty phase would be a foolhardy task, especially ahead of the presentation of any of the aggravating or mitigating evidence. The jury has, however, already heard some extremely aggravating evidence in the case in chief:

The government called 92 witnesses over 15 days, painting a hellish scene of torn-off limbs, blood-spattered pavement, ghastly screams and the smell of sulfur and burned hair. Survivors gave heartbreaking testimony about losing legs in the blasts or watching people die. The father of 8-year-old Martin Richard described making the agonizing decision to leave his mortally wounded son so he could get help for their 6-year-old daughter, whose leg had been blown off.

This wasn't an unforeseen result of the defendant's actions. Given that the jury has already been death qualified, one has to wonder, if the death penalty doesn't apply in a case like this, when would it?

As it turns out, we have something of a comparable case: the 1995 Oklahoma City bombing of the Murrah Federal Building. (Obligatory disclosure: I clerked for Judge Holloway in Oklahoma City from 1996-97, so I was in the courthouse for much of the pre-trial hearings in the case, but obviously I wasn't present at the time of the bombing itself.)

Obviously, the death toll in the Oklahoma City bombing was much, much higher, and so too was the property damage. But co-defendants Timothy McVeigh and Terry Nichols both went to trial, were convicted, and faced the death penalty. McVeigh was sentenced to death, while Nichols was not. What was different between the two of them?

Observers at the time noted that:

[P]roving his guilt would end up a greater challenge for the federal government than it had been in the McVeigh case. There was no evidence that Nichols had rented the Ryder truck used to carry the bomb to Oklahoma City, and there was no one who could positively identify him as the purchaser of the two tons of ammonium nitrate, the major component in the bomb.

Most problematic for the government was the compelling fact that Nichols was at home in Kansas when McVeigh detonated the truck in front of the Murrah building at the promising start of a sunny workday.

One might be able to see Tamerlin Tsarnaev as McVeigh and Dzhokhar Tsarnaev as Nichols, in terms of relative guilt, but most of the other comparisons do not favor Tsarnaev. Perhaps most importantly, Nichols may have benefited from being prosecuted after McVeigh had already been convicted and sentenced to death. While Tamerlin Tsarnaev is dead, his death did not result from a completed trial, and so Dzhokhar Tsarnaev is the only one of the two to face a jury; this is the one opportunity for a jury to, as they say, send a message.

(I should note that I'm not offering these to persuade anyone that Tsarnaev should receive the death penalty, but rather, why I think he probably will. For my views on the kinds of cases for which a death sentence would be appropriate in the interest of protecting other inmates, see an op-ed I wrote, or a short law review article.)

Additionally, whereas Nichols aided McVeigh in assembling the truck bomb, he apparently stopped helping McVeigh and thus had gone nowhere near the federal building. Dzhokhar Tsarnaev, on the other hand, appears to have been every bit as much of a perpetrator of the marathon bombing as his older brother was.

I wouldn't bet on the outcome of the penalty phase, but I do think Judy Clarke is facing an uphill battle in trying to persuade the jury to spare Dzhokhar Tsarnaev.

For further reading on comparisons between the Boston and Oklahoma City bombing cases, see this interview with McVeigh's lawyer.

Posted by Tung Yin on April 9, 2015 at 12:25 PM in Criminal Law, Current Affairs | Permalink | Comments (0)

Friday, April 03, 2015

Deterring Adolescence: A Friday Farewell Post

A brief final post on deterring adolescence, inspired by a story on Slate about four teens charged with child pornography for filming themselves having consensual sex and tweeting a video of it. The police chief said the charge will "send a message to others that kids shouldn’t be involved in this type of behavior, and hopefully this will serve as a deterrent.” If only that were so, prosecutions like this might make some sense. But there is great support for the idea that the criminal law provides very little deterrence when it comes to young people. Their impulsivity, tendency to offend in groups, preference for immediate rewards, and discounting of the future mean that the possibility of getting caught and getting punished plays little role in their decision-making calculus. In the words of Christopher Slobogin, the deterrent force of the criminal law is "literally an afterthought" for adolescents. 

This has important consequences in all sorts of arenas, within and beyond criminal justice. The lack of a meaningful deterrent effect of criminal law is one reason (among many) why I argued that DNA collection from juveniles should be reconsidered. In short, we can't regulate adolescence out of adolescents. They don't respond to the incentives baked into the law the same way that adults do. In this important time when juvenile justice norms are being rebuilt, we must use what we've long known and what we newly know about young people to make for smarter policy. This is especially true when, as now, contact with the criminal justice system and criminal records can have such devastating, permanent impacts on lives.

Like my other April guest bloggers, I wanted to thank Howard and Prawfsblawg for giving me a chance to share thoughts on adolescence every couple of days. I even got a few comments to some of my posts, and made a couple of new friends in the process. This is a wonderful community, and I am thankful it exists.

Cheers.

Posted by Kevin Lapp on April 3, 2015 at 08:12 PM in Criminal Law | Permalink | Comments (1)

Tuesday, March 24, 2015

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why.  Just FYI."  

 

Posted by Rick Garnett on March 24, 2015 at 01:52 PM in Constitutional thoughts, Criminal Law, Rick Garnett | Permalink | Comments (6)

Monday, March 23, 2015

Upcoming Conference on Gang Injunctions, Enhancements, and Databases

The Center for Juvenile Law and Policy at Loyola Law School, Los Angeles, where I teach, is holding a 2-day conference about gangs on April 24-25 that may be of interest to Prawfs readers. The conference plans sessions on California's Street Terrorism Enforcement and Prevention Act (STEP Act), which is a sentencing enhancement law, the use of gang experts at trial, anti-gang injunctions, gang prevention and outreach, and gang databases. The conference registration page is here

The topic of gang databases is one I cover in my forthcoming article Databasing Delinquency. The article describes the vast extent of modern data collection about juveniles by the criminal justice system (gang databases, sex offender registration for juveniles, DNA databases, schools as informants, and more) and the debilitating short and long-term harms it inflicts on youth. Data collection by itself is not the main problem (though there are harms caused by its mere collection). It’s the retention and sharing of the information that raise concerns. Much of the information collected by law enforcement (which goes far beyond charges and convictions) is retained indefinitely and shared beyond law enforcement, finds its way to the internet and the databases of private commercial background check vendors, and comes back to haunt individuals as they make the important transition to adulthood and seek employment, higher education, and housing. 

I argue that, consistent with developmental science, a separate juvenile justice system, Supreme Court jurisprudence, and the purpose and meaning of childhood, there should be limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself. I’m not arguing for an automatic clean slate at 18 or any other age, but even Santa Claus, who keeps one of the most important lists of who has been naughty and nice, only looks back 12 months. 

Posted by Kevin Lapp on March 23, 2015 at 12:31 PM in Criminal Law | Permalink | Comments (0)

Biased Police Dogs

One surprising revelation of the Justice Department's report on Ferguson's police department was that:

 "[C]anine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American."

The obvious takeaway from this startling information is the one drawn by the Justice Department, that "race may play an impermissible role in officers’ decisions to deploy canines." But a short and interesting article  in the New Yorker suggests another, equally upsetting, reason that these dogs may have attacked only African American suspects: they are affected by "the hidden racial prejudices of the police officers who deploy them."  It is hard to draw this conclusion from the Ferguson case alone but the article's author cites several other examples of how a trainer's biases can impact their canine charges.

 The author also questions the received wisdom that dogs are particularly useful aids to law enforcement more generally.  This is not an area I have looked into but am now curious about the police's use of dogs, when it is appropriate, and whether the resources spent on their training and care is the best way to spend limited police budgets.  

Posted by Kate Levine on March 23, 2015 at 09:29 AM in Blogging, Criminal Law | Permalink | Comments (4)

Thursday, March 12, 2015

Decarceration and Violent Offenders

Perhaps the single biggest topic in criminal justice circles these days is the drive to decarcerate. We imprison too many people, the argument goes, and we need to cut back.

And this is surely right. We are home to 5% of the world’s population but 25% of its prisoners. It’s hard to imagine that we are that uniquely criminogenic a society. I’m generally distrustful of “American Exceptionalism” in either the good or bad direction.

But the decarceration argument often then takes a slightly wrong turn. Who comprises these offenders? So often we hear about how our prisons are packed with non-violent property and drug offenders.

Wrong. If we want to decarcerate—and we should—any sort of meaningful change is going to require a very, very difficult discussion about exactly how many, and what sort, of violent criminals we need to either not lock up in the first place, or lock up for much shorter periods of time.

A clear example of the “standard account” can be seen in Michelle Alexander’s New Jim Crow:

The impact of the drug war has been astounding. In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for a majority of the increase.

This is wrong.* As I’ve shown before, between 1980 and 1990, increased drug incarcerations explain 33% of the growth in state prison populations, and increased violent incarcerations explain 36%. Between 1990 and 2010, increased drug incarcerations contribute a mere 14% to prison growth, compared to 60% for violent incarcerations. All told, between 1980 and 2010, slightly more than 50% of the net increase in prisoners is due to locking up more violent criminals (with drugs and property both in the low-20%s).

Furthermore, the standard trope that drug offenders are non-violent offenders is generally wrong as well. As this paper points out, using detailed inmate survey data from 1997, a majority of drug offenders in prison are not the stereotypical “low-level, non-violent offender.” Even if the conviction offense is low, the underlying crime—and the 1997 survey included data not just on the actual amount of the drug that led to conviction, but on whether weapons were involved in the drug transaction, the offender’s role in the transaction, prior criminal history, etc.—was often more serious, and the offender often someone with a more-dangerous background than the offense itself may suggest.

And so, as Megan McArdle recently reminded us, contrary to what we often hear from so many decarceration advocates, if we are going to shrink prison populations, we are going to have to release those convicted of violent offenses, as well as drug (and surely property) offenders who are not nearly as non-violent as the conviction offense may suggest.

This isn’t necessarily wrong. It could in fact be good. Most likely, if we viewed crime as a public health problem more than a… criminal… one, and if we treated repeated offending more like someone coming down with cancer again rather than a complete moral failing on the part of offender and society alike, we would have much more effective policies in place.

But the politics of this are radically different. It’s easy to say “let the low-level pot smoker out.” Good luck with that. About 0.1% of all prisoners in state prison in 2004 were there on marijuana possession charges.

It’s much harder to say “let the domestic violence case out. Cut the sentence for aggravated assault. Raise the threshold between simple and aggravated assault.” But that is what it is going to take if we are going to seriously cut back on incarceration.

And that should also give us pause about exactly how much we want to cut back.

To be clear, we aren’t actually all that exceptional compared to Europe when it comes to crime. Except for lethal violence, gun violence in particular.** But still: we have a lot of violent crime, and cutting punishment on that is tricky.

I’d like to end with what I think is a really clever tool developed by the Marshall Project. In an article on the Cut50 organization—a group with the goal of cutting US prison populations by 50%—the MP provides a nifty little tool that allows you to figure out how much of what type of offender you need to release to cut the population in half. It’s worth trying out. 

And remember before you pull the slider for “drugs” to 0% that that’s letting out a decent number of violent people. So too for the property crimes. It’s hard to get to 50%—and a 50% cut would still leave the US prison population 2.5x higher than it was in 1975, and still with one of the highest incarceration rates around.

 

 

* Alexander’s core mistake here is that she conflates drug offenders as a share of prison admissions with their share of the prison population. Drug offenders have come to make up more and more prison admissions but not so much population due to the fact—again, contrary to conventional wisdom—that they generally serve relatively short sentences.

** Frank Zimring has argued that this difference in lethal gun violence makes all the difference: our robbery and burglary rates are below-average compared to Europe’s, but our picture of the stereotypical robbery or burglary involves someone pulling a gun. That’s actually not factually accurate, but it makes us much more afraid of crime, and thus explains some of our greater punitiveness.

Posted by John Pfaff on March 12, 2015 at 09:30 AM in Criminal Law | Permalink | Comments (2)

Wednesday, March 11, 2015

Prosecutor Compensation and Moral Hazard: What Happens in Oregon

I will return to my thoughts on the Brennan Center report shortly, but today I wanted to talk a bit more about prosecutors, though not about prosecutors and police-involved shootings like before. In this post, I want to look at the much less exciting, but quite likely more important, issue of how we pay DAs and fund their offices.

Until recently, almost no one has paid much attention to a giant moral hazard problem that sits at the heart of our criminal justice system: district attorneys are elected by the counties, but the prisons they send felons to are paid for by the state. The standard story, then, is this: DAs will be much more sensitive to county budgets than to state ones, which encourages them to send people to prison (a state expense) rather than jail or probation (both county expenses). Thus one challenge with reining in prison growth: the person most responsible for sending people to prison has no incentive to pay attention to the (state-level) costs of doing so.

Bill Stuntz raises this concern in his magisterial Collapse of American Criminal Justice, and David Ball recently talked in Slate about how this problem plays out in California. In theory, California’s Realignment plan was designed to make county DAs incur the costs of locking up low-level offenders.

I recently discovered that Oregon has developed another way of dealing with this: the state pays the DAs salary, but the county hires all the deputy DAs. Furthermore, the counties have generally given the DAs supplemental pay, which they then can (and do) vote to withhold or change. In theory, this gives both levels of government some control over DA behavior.

The system is, not surprisingly, far from perfect. The state portion of the DA salary is fixed in one of two tiers, depending on how populous the DA’s county is (the DAs in the ten largest counties earn slightly more than $17,000 more than those in the remaining 26 counties). Such rigidity doesn’t give the state much ability to single out specific DAs for being better or worse about overusing state prisons.

Furthermore, county supplements can be withheld for dubious reasons, such as one DA who lost his supplement when the county defunded it after the DA’s father ran against a county commissioner in an election and lost. The concerns are obvious. As one DA explains:

If county commissioners can eliminate a supplement, it puts a lot of pressure on the district attorney to not displease them, not support their opponents for political office, not prosecute someone they don't want prosecuted and give special deals to certain people….”

Moreover, some DAs complain that variations in county supplements lead to unappealing variations in overall pay, such as the DA in a smaller county earning more than one in a larger county. The normative implications of such variation, however, are actually pretty tricky. Though the complaint seems fair at first, it could also just reflect the fact that the smaller county puts a higher premium on DA services (whether due to more crime, or to stronger views on criminal justice enforcement, etc.). Such localism isn't necessarily a problem, putting aside concerns of abuse like above.

Furthermore, policies in Oregon point out that stating the question as "how can me make DAs take into account the costs of prisoners they send to prison" perhaps frames the issue too narrowly. There are other financial levers that the state can use to encourage or discourage prosecutors from going after felony cases. Consider this petition from the Oregon District Attorneys Association to the state legislature over funding, which looks not only at salaries, but at witness compensation. State law requires that witnesses be compensated, but the state has also cut its support for that compensation to zero, forcing counties to shoulder the full weight of that (now unfunded) mandate. The ODAA obviously is requesting state support, but the policy shift by the legislature reveals one way that state governments can make DAs more or less sensitive to the various costs at play.

Of course, indirect approaches like this always run the risk of backfiring, or leading to unanticipated and undesirable outcomes. The greater the fraction of the cost of a case the county has to bear, perhaps the more the DAs will conserve resources to focus on the most serious cases. Of course, the alternative possibility is that they will focus on the easy-to-prove cases, and if ease-of-proof and importance are not all that positively correlated--drug cases with buy-busts are cheap, but murder or rape cases are expensive--then the effect could be an undesirable reallocation.

But, of course, the story gets more complicated from there, since at that point  county commissioners would attack the supplement if they thought the DA was dodging too many serious, expensive cases. One thing that distinguishes state prosecutorial incentives from federal is that state DAs have less flexibility about the cases they go after: if the public feels like the core violent crimes of murder, arson, rape, aggravated assault, etc., aren't being taken care of, they can get quite upset.*

 

In other words, what little discussion we see about the role of budgets and incarceration focuses on the prison budget, but there are a lot of other budgets that get implicated before someone ends up in prison, and adjusting those may present other avenues for states to regulate downstream actors’ behavior.

 

* Maybe. My next post will be about this depressing essay by David Simon on how the Baltimore DA basically made almost half of Baltimore's murders disappear with a statistical sleight-of-hand. Hard to complain about what the DA is doing when you have no idea what he is doing.

Posted by John Pfaff on March 11, 2015 at 10:40 AM in Criminal Law | Permalink | Comments (0)

Monday, March 09, 2015

25 year-old adolescents

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later.  They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence (another prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In any event, it’s almost universally accepted that full development/maturity doesn't come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents requires distinct rules depends on how they are different. And they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights. 

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

Posted by Kevin Lapp on March 9, 2015 at 03:04 AM in Blogging, Criminal Law | Permalink | Comments (4)

Wednesday, March 04, 2015

Defining Childhood

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries. 

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults.

But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

The obvious middle ground category is adolescence. There has been a tremendous amount of research about adolescence in the last two decades that has transformed our understanding of the period between the onset of puberty and adulthood. It is clear that adolescents are neither children nor adults, and it stands to reason that lawmakers may soon have to reconsider the binary approach and confront this more complicated reality.

In a series of recent juvenile justice cases (outlawing the death penalty and life without parole for juveniles, and requiring police to account for age in determining custody for Miranda purposes), the Supreme Court did not outwardly engage with this definitional problem. In 3 sentencing cases (Roper, Graham, and Miller), the Court predominantly used a binary approach. The holdings applied equally to all those under 18 (based on developmental findings distinguishing them from adults in relevant ways), at which point the categorical protections of childhood vanish.

But word choice matters, and it’s worth noting that even though the holdings in the punishment cases reflect a binary approach, the Court seemed to recognize that it was dealing with folks in that middle ground between childhood and adulthood. The court’s decisions address the “juvenile death penalty” and “juvenile life without parole” and “juvenile offenders.” A crude ctrl+F search, for example, found 97 mentions of “juvenile” in Kennedy’s opinion in Roper an­­­d only 9 uses of “child.” Similar results come from searches of Graham and Miller – much heavier use of “juvenile” instead of “child.”

Things get more complicated when we consider J.D.B., a 2011 case holding that the police must account for age in determining custody for Miranda purposes. Sotomayor’s majority opinion proclaims that “a 7–year–old is not a 13–year–old and neither is an adult.” Embedded in that observation is something more than a binary child-adult view. By recognizing that a 7 year old is not a 13 year old, the Court may be recognizing that the adolescent brain and psychosocial research so important to its decisions does distinguish adolescents from children in ways that matter to the law. It may be that the rules for 7 year olds should be different than the rules for 13 year olds, which themselves should be different than the rules for adults.

Yet, the J.D.B. majority opinion used “child” 55 times and “juvenile” only 17 times, with zero mentions of adolescence/adolescents. I’m curious about this. Was it a rhetorical strategy, to emphasize that the core issue is the different between children (everyone under 18) and adults, and the main concern the interaction between trained adult law enforcement officers and non-adult suspects? If so, why here and not in the punishment cases? Was it a rejection of the idea that the transitional stage of adolescence should have its own rules? If so, why recognize that 7 year olds are different from 13 year olds?

I intend to look closer at those questions, and the challenges in identifying what ­­­­­­a separate legal category of adolescents might look like, in a future post. 

Posted by Kevin Lapp on March 4, 2015 at 03:54 AM in Blogging, Criminal Law | Permalink | Comments (3)

Wednesday, February 25, 2015

Crime, Policing, and CompStat: An OVB/Endogeneity Exacta

Continuing my examination of the Brennan Center report on crime and incarceration, I want to turn my attention now to its treatment of CompStat and policing. The report finds, based primarily on Steve Levitt’s prior work, that policing is responsible for about 0% to 10% of the crime drop in the 1990s and very little in the 2000s; conversely, using city-level data, the report suggests that CompStat contributed to 5% to 15% of the drop in city-level crime. The report quite likely understates the effectiveness of policing and overstates the effectiveness of CompStat.

Let’s start with CompStat. The first concern I have with the report is that despite city-level data showing that CompStat works, it isn’t included in the state-level models. The justification—that CompStat is a city-level program, not a state-level one—is one of those arguments that makes sense at first but unravels with more thought.

Consider how the authors themselves explain this decision:

Because policing is a local function, executed on the city and county level, an empirical analysis of CompStat must be conducted at a local level instead of a state level.

But the state-level models include police numbers which, as they say, is a local function executed at a local level. So why include police numbers but not CompStat in a state-level regression? For that matter, most of their other factors are local- and county-level as well, such as unemployment, income, even the use of the death penalty. In all these cases, state-level aggregates are homogenizing county- and local-level variation.

And that may be totally okay. But why treat CompStat any differently?

The only reason I can see is that it is harder to aggregate. It is easy to add up all the police in a state, or to average out the local unemployment rates. But how do you “average” a binary choice like CompStat? A city either has it or it does not. So how do you code “CompStat” for, say, California, if Los Angeles and San Diego use it but San Francisco does not? And do you even care if Sonoma uses it or not?

Tricky questions, to be sure. But that doesn’t mean we can just punt on them. There may be creative ways to manage this issue: how about percent of population or percent of crimes taking place in cities or counties using CompStat, which would be akin to some sort of police-per-capita number? Or perhaps designate a “big enough city” cutoff point (at least x% of the state population), and then have an indicator for each city? 

I have no doubt there are problems with each of these, and these are just ideas off the top of my head. But the point is that if CompStat matters at the city level, it matters at the state level, since cities—especially big cities, which are the ones most likely to adopt CompStat—exert sizable influence on state-level statistics. So CompStat can’t simply be dropped without cost.

And while CompStat appears to influence crime (though more on that in a moment), it could also shape incarceration directly. The decision to adopt CompStat could reflect a certain degree of criminal justice sophistication, or perhaps a more cost-based managerial approach, that could reflect a broader shift away from incarceration beyond trends in crime rates. So the standard omitted variable bias concern recurs.

Here, it looks like CompStat reduces both crime and—if my theory here is right—incarceration, so its exclusion, like all the others I’ve identified so far, will tend to make the model understate the effect of incarceration on crime.

Even at the city level, though, there is another risk of omitted variable bias when it comes to CompStat: not CompStat itself (obviously), but how the police use it. The authors of the report are very careful to point out that their variable makes no assessment of how the police use CompStat or respond to its findings—broken windows, stop-and-frisk, hot-spot policing, etc.—on the (again, understandable) grounds that such data is hard to gather.

Unfortunately, it might also be important. A recent paper that randomized police responses in designated hot spots found that foot patrols and problem-oriented policing responses had almost no effect on crime, while offender-oriented tactics witnessed a 42% drop in all violent crimes and a 50% drop in violent felonies. The tactics appear to matter significantly.

So what is this CompStat variable picking up? Is it just the adoption of CompStat, or do cities that adopt CompStat more often than not also adopt tactics along side it that appear to work? It’s possible that much of the “CompStat” effect this model detects is really a “Tactics” effect, with the tactics correlated to the adoption of CompStat.

This is not a trivial question. If I am a cash-strapped police department debating between buying new computer systems or training my officers, I’d really like to know if what matters more is the precision of the response vs. how my officers respond in general. Unfortunately, the Brennan Center model can’t tell us that.

Which is not to say that identifying CompStat or its correlates as important (assuming the rest of the model has no problems) is not useful to know. That could be very useful—it at least narrows down the options for jurisdictions to consider. But it is important to acknowledge the limited nature of the finding.

Finally, I want to turn briefly to the report’s focus on policing. The authors note that their regressions return only a minimal effect of policing on crime, but they are quick to rightly point out that endogeneity is big problem here as well, as Steve Levitt pointed out clearly years ago.* The authors then draw two conclusions:

  1. They decide to simply accept Levitt’s numbers for the 1990s.
  2. They point out that the number of sworn officers has been flat or falling slightly over the 2000s, so policing’s effect during that time is likely minimal.

I have concerns with both of these claims.

First, the authors decline to generate new results for policing on the grounds that endogeneity is hard to correct, so it makes sense to stick with Levitt’s popular findings. But Levitt’s instrument is actually pretty easy to use—as long as you have data on when mayoral and gubernatorial elections occurred, you can extend Levitt’s instrument into the present. Admittedly Levitt’s data is city-level, not state-level, but the authors could have run new city-level regressions to see if Levitt’s findings are robust to more data. They may have even been able to directly model whether there are diminishing returns to policing in an era of falling crime, although there could be some technical problems there.**

Moreover, while they are right that the number of officers has been flat, the levels of crime have been falling. So it is likely that officers per crime have gone up. Might that suggest that the relative strength of police forces has risen, even if their absolute number has declined? In which case, might policing have more of an effect into the 2000s? It obviously doesn’t have  to—maybe policing becomes less effective as crime falls since it becomes harder to actually uncover it—but the claim that a flat number of officers can be taken as evidence of negligible effect strikes me as perhaps looking at the wrong number (officers, instead of officers per crime).

The tl;dr version, then? The effect of CompStat could be picking up important tactical choices, and the ineffectiveness of policing could reflect incorrect modeling choices. Neither of these problems is guaranteed, but the risk is non-trivial, and the policy implications of being wrong here are non-trivial as well.

 

* I must admit to finding it somewhat strange that the authors are quick to accept Levitt’s argument that endogeneity is a problem here but not when it comes to incarceration.

** I have no idea off the top of my head if it is easy to instrument for a variable that appears in some sort of quadratic equation.

 

Posted by John Pfaff on February 25, 2015 at 12:30 PM in Criminal Law | Permalink | Comments (0)

Friday, February 20, 2015

Crime, Lead, and Abortion (Bear With Me on OVB)

Continuing my examination of the Brennan Center report on crime and incarceration, I now want to consider whether the failure to include measures of lead exposure and abortion rates introduce serious concerns of omitted variable bias. In my previous post, I suggested that omitting inflation and consumer confidence probably didn’t raise many concerns since it is unlikely those variables had much impact on crime.

Here, I want to argue that omitting changes in lead exposure and abortion rates is also likely not  particularly problematic, though perhaps a bit more so than dropping inflation and consumer confidence. 

Given that abortion and lead are thought to be two of the most important causes of declining crime in the 1990s and 2000s, it clearly can’t be for the same reason I wasn’t bothered by the failure to include inflation and consumer confidence.* Instead, for these two variables it seems unlikely that there is a strong correlation between either of them and incarceration rates (though I note at the end that there could be a slightly attenuated one). As I explained before, the bias from OVB grows with both the size of the direct effect of the omitted variable (lead, abortion) on the outcome variable (crime), and with the correlation between the omitted variable and the variable of interest (incarceration). If either is low, the bias is low.

What makes lead and abortion potentially different from crack is that they are not directly related to crime control policies. The crack epidemic was framed as a criminal justice issue from the start and thus likely sparked collateral changes in criminal police that could influence incarceration rates above and beyond crack’s direct effect. But it is harder to see such a connection between lead and abortion on the one hand and incarceration, and criminal justice more generally, on the other.

 After all, there was no sense of lead’s link until Jessica Reyes’s paper in 2007, and none about the abortion-crime link until John Donohue’s and Steven Levitt’s paper in 2001 (which went viral with the publication of the 2000 working paper). By both 2000 and 2007, the crime drop was well underway, and major legal changes were not taking place as frequently. If these factors were shaping other criminal justice outcomes, they were doing so in the background.

That said, there is one way in which they could matter, though I haven’t been able to completely figure out how it all plays out. The papers by Reyes and Donohue and Levitt work statistically only because states varied in their rates of lead and abortion. In both cases, it could be possible that more-liberal states experienced bigger changes: such states may have bought into environmental clean-up faster, and they may have been more politically or culturally tolerant of expanded abortion rights.** And these more-liberal tendencies may have led these states to take less-punitive reactions to crime in general. 

If these assumption are correct, then omitting lead will cause a model to understate the effect of incarceration on crime.*** But note the attenuation that is here. The correlation isn’t just that between lead and incarceration—unlike with crack, I have a hard time seeing what that direct effect could be. Instead, the correlation is actually a chain: lead is correlated with politics, and politics is correlated with incarceration rates. The relevant correlation here will thus be the product of these two effects, and therefore less than either one of them alone (since all correlations are less than one, and some of these might be significantly less than one).

The same political story applies to abortion as well. Once again, like with lead, more-liberal states will have responded more quickly, once again omitting the variable will bias the estimated effect of incarceration towards zero, and once again the size of the bias is mitigated by the chained nature of the correlation (abortion with politics, politics with incarceration rate).

There are two problems, though, with how the report looks at lead and abortion. For lead, the authors say they could not get lead data for the period 1980 to 2012, and they argue that omitting lead isn’t a problem since changes in lead levels had pretty much leveled out by the 1990s:

 Further, lead’s effect on the crime drop likely waned in the 2000s. While reduced lead levels in gasoline may continue to depress crime rates, it likely has a minimal role in this decade. The prevalence of lead in gasoline has been at consistently lower levels since the early 1990s. Thus, individuals who were around age 22 in the 2000s were exposed to consistently low rates of lead similar to previous cohorts. Thus, because there was not much change in the prevalence of lead in gasoline, it likely had little effect on propensity to commit crime.

First, they don’t need lead data through 2012, and they need lead data before 1980. Lead operates with a lag of about 15 to 20 years. So study the impact of lead on crime between 1980 and 2012, you want to look at lead exposures from around 1960 to 1992. Thus stable post-1990 levels of lead won’t really matter for a few more years. As the following figure, lifted from here, demonstrates, lead exposure to those aging into violent crime in 2000 was still substantially higher than that for those aging into violent crime in 2011. (Although if we look at a 15-year lag, the flattening of lead exposure should start to play more of a role, especially for property crime, but only at the very end of the period.)

 

Screen Shot 2015-02-20 at 1.14.59 AM

 

The authors make a similar, and seemingly also-incorrect, claim about abortion. They assert: 

Even if the abortion theory is valid, it is unlikely that an increase in abortions had much effect on a crime drop in the 2000s. The first cohort that would have been theoretically affected by abortion, 10 years after the 1990s, would be well beyond the most common crime committing ages in the 2000s. Based on available data, the frequency of abortions appears to currently be fairly constant. Since the variable does not appear to be shifting, a change in crime would not be expected. Although it may have had some small residual effect, there would likely be no effect on the 2000s drop attributed to legalized abortion.

But the figure below, from a Guttmacher Institute report, again indicates pretty significant shifts in abortion rates over much of the sample period. It is true that there is a flattening in abortions throughout much of the 1980s, but then abortions start to decline steadily in the 1990s. Between 1990 and 1997, the number of annual abortions falls by almost 20%. And those born in 1997 are 18 today: well into the property-crime stage and entering into the violent-crime phase.****

Screen Shot 2015-02-20 at 1.21.41 AM

Of course, to understand the impact of the decline in abortion on crime, we also have to ask who is driving the decline. A core aspect of Donohue and Levitt’s causal story was that the spike in abortions following Roe was due to a disproportionate increase in abortions by more socially-marginalized women, women whose children ran a greater risk of offending. If the decrease is due to a different cohort—perhaps wealthier, better-insured women who have more access to alternatives—then the response need not be symmetric (i.e., that the increase reduced crime does not mean the decrease will increase crime if the increase and decrease are two different populations).

I’ll stop here. The tl;dr version: omitting lead and abortion are likely less problematic than omitting crack. There may be some bias, and it’ll run in the same direction as crack, namely towards understating the crime-fighting aspect of incarceration, but the size of the bias may be fairly attenuated. My next posts on this will turn to CompStat and variables the authors did not include at all.

 

 

 

 

* Obviously, if you think that either of these factors didn’t have much of an impact in crime—and the last thing on Earth I want to do is get dragged into a debate about the abortion/crime link—then the risk of OVB goes away on that front. So my point here is assuming these factors have a large effect, we still don’t necessarily need to be concerned with OVB.

** Tellingly, the only states to legalize abortion prior to Roe v Wade were Alaska, California, Hawaii, New York, and Washington State, four of which are now solidly blue and have often been on the more-liberal end of the spectrum.

*** The bias is towards zero because lead is positively correlated with crime (more lead, more crime), and it is positively correlated with incarceration (according to my politics theory, high-lead states will be dispositionally more punitive). So the bias is positive and the true effect of incarceration is negative, so the estimated effect will be less negative than the true effect.

**** It is worth noting that lead is flat starting in the 1990s, and abortion rates are flat until the 1990s. And both should operate with similar, though not identical, lags. Thus the impact of omission with vary across time: omitting lead will become less and less important, but omitting abortion should become more and more important.

Posted by John Pfaff on February 20, 2015 at 10:22 AM in Criminal Law | Permalink | Comments (0)

Crime, Inflation, and Consumer Confidence: Unbiased Omitted Variables

As I mentioned in my previous post, the recent Brennan Center report on the effect of incarceration on crime identified fourteen possible factors that could explain crime trends, but included only eight in their regressions. So I wanted to think a bit about how omitted variable bias might throw off their findings. Last post I focused on just one, the failure to control for trends in crack use, and suggested that its exclusion likely leads to report to understate the crime-reducing impact of incarceration.

In my next few posts (spreading these out over several as a concession to “wonky” + “long” = “unreadable”), I want to consider the remaining five variables that didn’t make the cut. I feel like four of them don’t really raise any concerns, but one—the adoption of CompStat—does. 

First, the four that don’t matter so much. These are trends in inflation, consumer confidence, lead exposure, and abortion. In this post I’ll consider the first two, and I’ll look at lead and abortion in the next.

For inflation and consumer confidence, my guess is that both their direct effects on crime and their correlations with incarceration rates are weak. According to the Brennan report, the evidence linking inflation to crime comes only from national-level studies (since inflation is not gathered at the state or local level), which link it primarily to property crime. It is easy to see why one might think there is a connection between inflation and property crime, as the figure below suggests.

Screen Shot 2015-02-19 at 10.22.49 PM
But this is the trouble with national-level data. While inflation and property crime track each other closely, especially during the 1960s and 1970s, the correlation is likely spurious. A lot was changing during that time, which was a period of great social and economic upheaval. Surely these huge forces were driving both inflation and crime. Especially with national-level data, which just gives you one time series to work with, it is easy to get overlapping patterns that are random or spurious. (See this for more spurious-correlation awesomeness.) 

As for consumer confidence, it too is measured only at the national level (from a survey of only 500 households), and thus faces a greater risk of spurious correlation. Furthermore, the paper proposing this connection that the report cites uses only a handful of explanatory variables and thus likely suffers from OVB itself. It’s almost certain that its estimate of consumer confidence is picking up a lot of other stuff.

But there is an even deeper reason to be wary of linking consumer confidence overall to crime rates. As David Weisburd and others have shown, crime is intensely geographically concentrated, not just within a state, not just within a city, not just within neighborhoods, but within blocks of those neighborhoods: New York City is more violent than Westchester, Brooklyn is more violent than Staten Island, East New York (a high-crime Brooklyn neighborhood) is more violent than Park Slope (Brooklyn’s hatchery), and there are persistently “good blocks” and “bad blocks” in East New York.

Given this concentration, it is unlikely that national-level surveys of just a few households are really going to capture the nature of confidence where crime is most densely located. Perhaps not rigorous evidence, but I do remember an episode of the Chris Rock Show from 2000 in which Rock goes to the South Bronx to ask people there whether they are feeling the benefits of the dot-com economic boom; the answers are predictable (and the clip sadly not on YouTube, as far as I can tell). I would expect the true effect of confidence on crime to thus be slight.

Or, put more carefully, the consumers whose confidence we measure are systematically not the consumers who are either committing or experiencing crime. Not only would these consumers be unlikely to show up in a 500-person survey just by chance alone, but the very nature of their more-difficult lives suggests that they will be systematically under-sampled.

Finally, even if you think there is a strong relationship between either of these and crime, I’m hard pressed to see much of a connection between them and incarceration rates. No previous study has ever thought to look at them (at least as of the time I wrote this review), and it strikes me that any effect they do appear to have is more likely due to the underlying economic shifts driving inflation and confidence (like trends in personal income, overall state economic output, unemployment rates, and maybe inequality), all of which are actually easier to measure at the state level anyway.

So dropping inflation and consumer confidence these variables thus shouldn’t bias the report’s estimate of incarceration at all. Which is good.

Posted by John Pfaff on February 20, 2015 at 10:12 AM in Criminal Law | Permalink | Comments (0)

Thursday, February 19, 2015

Omitted Variable Bias: A Quick Primer

The next potentially serious issue with the Brennan Center report that I want to consider is one that arises in pretty much every empirical social science paper, namely the always-present threat of omitted variable bias. I actually want to spend a few posts on this issue, so I thought it could be helpful to start with a brief, nontechnical overview of why and when this is problem for the more non-statistical readers of this blog. That way I can refer back to this in future posts, rather than “see the middle of a longer, more substantive post.” And those already familiar with OVB can just skip this one.

Here’s a simple example to demonstrate how—and when, and to what extent—OVB throws off a model’s results. Let’s say we are trying to understand what causes an individual to engage in crime, and we think those with more education are less likely to commit crime. So we include education as an explanatory variable. However, due to a lack of data, we can’t include any information on whether someone is using drugs. Does this omitted variable matter, and to what extent?

It’s easy to show how it matters. I mean, how much clearer could this be?

Screen Shot 2015-02-18 at 10.43.04 PM

I kid. I mean, that really the magnitude of OVB (picture stolen from here), but that’s not exactly intuitive.

The concern with OVB is this: people using drugs are less likely to attend school, so they’ll generally have a lower level of education. And they are more likely to commit crime. So drugs are correlated with education, and drugs are correlated with criminal offending.

So when I run a regression of education on crime but omit drugs, what does the result for education that computer spits back at me capture? Well, it picks up the real effect of education on crime, but it also picks up part of the effect of drugs: those on drugs have less education, so part of the reason that those who have lower education appear to commit more crimes is actually because of their generally-higher levels drug use. 

In other words, within the pool of those classified as “low education” are high and low drug users, and similarly within the “high education” pool, although a greater fraction of the low education pool uses drugs at a high level. And it is likely that within the pool of lower education people, those with higher drug use offend more. If we had data on drug use, the model could separate these two effects out, but without it, it just returns some sort of average effect of education and drugs.

We can actually be much more precise about this. There are three components to thinking about OVB (this really is the equation above now, but still: ignore it). There’s the true effect of education on crime, there is the correlation between education and drugs, and there is the true effect of drugs on crime. The coefficient that the regression returns is basically:

the true effect of education plus (the correlation between education and drugs times the true effect of drugs).  

Thus if a 10% increase in education reduces the probability of offending by 5%, if a 10% increase in drug use increases the risk of offending by 7%, and the correlation between drug use and eduction is –0.3 (since education and drug use are negatively correlated), then the regression will tell you that a 10% increase in education reduces offending by –5% + (–0.3 x 7%) = –7.1%. In other words, it will overstate the effect of education. (For those of you expecting no math, I apologize: this is basically the last of it.) 

This makes sense: increased education is associated with less offending as well as less drug use, and less drug use is associated with less offending. But by omitting drug use from the model, the education terms picks up some of both effects, making education look more effective than it should.

So, two big points:

First: we can see when OVB matters. If the omitted variable is uncorrelated with what we are looking at, then it is irrelevant. Perhaps area temperature influences crime rates—it is easier to commit crimes when it is warm and everyone is outside—but maybe (maybe!) climate is uncorrelated with educational outcomes. Then omitting climate has no effect on our estimate of education, since changes in education tell us nothing about changes in weather. 

Similarly, if the omitted variable has no independent effect on crime we can ignore it, no matter how correlated it is with education

Or, put more generally, the smaller the correlation between the included and omitted variable, and the smaller the direct effect of the omitted variable on whatever you are looking at, the less serious the bias is.

Second: We can (in simple cases) predict the direction of the bias, which can actually be quite useful.

Recall that what the regression reports is true effect + (correlation times omitted effect). So in our education case, the true effect is negative (education reduces crime), the correlation is negative (drug use and education are negatively correlated), and the omitted effect is positive (more drugs leads to more offending). So the “bias factor” will be negative (a negative times a positive), and a negative plus a negative is even more negative: the regression will overstate the true effect. 

That’s useful to know. In our example above, then, we know that –7.1% is a ceiling: the true value is something less than that (i.e., closer to zero). We don’t know how much less, but we know it can’t be more.

Of course, if the omitted variable were positively correlated with both education and crime—something that causes people to both offend more but also achieve more in school, perhaps some sort of aggressive ambition that is hard to detect, say—then the regression would understate the true effect of education (a negative true effect plus a positive bias would push the number too close to zero). And so on and so on for positive and negative correlations and positive and negative omitted effects.

Now, in practice, there is a limit to this. Often multiple variables will be omitted, and the effect of education would capture all of these: the more-negative bias of drug use, the less-negative bias of ambition, etc., etc. And in this case, it would be almost impossible to know how all the various biases net out. But where we think only one or two key variables are missing, then we can at least know if our estimate is a ceiling or a floor.

So that’s a crash primer on OVB. The next post will start to look at how it plays out in the Brennan report.

Posted by John Pfaff on February 19, 2015 at 09:36 AM in Criminal Law | Permalink | Comments (0)

Tuesday, February 17, 2015

Crime, Incarceration, and Difficult Empirical Questions: Some Initial Thoughts on the Brennan Center Report

For the past few days, I’ve been struggling with what I think about the Brennan Center’s new report on the effect of incarceration on crime. What has me torn is this:

1. On the one hand, I think the report’s basic claim is likely more or less correct. The report’s central argument is that incarceration’s impact on crime exhibits diminishing returns. As we lock up more and more people in a time of falling crime, that seems like a reasonable claim.

2. On the other hand, the methods the paper uses are simply wrong, and their invalidity has been well documented for nearly two decades. Moreover, while the report’s basic claim is likely true, its estimates of the exact size of incarceration’s impact on crime are almost certainly too low. 

Now that second claim might initially seem like the clearly less-important one. So what if they say that prison contributed to 10% of crime’s decline when it should have been 15%? People only care about the general trend. In fact, policy can only really be based on the general trend—social science isn’t like putting a man on the moon. We operate by rough estimates, not fractions of an inch. 

Right? Well… no. 

First, the report argues that the effect in recent years could be zero. That’s not a quantitative error, that’s a media-friendly qualitative error. It’s a “nothing works” argument for the prison reform movement.

Second, given the statistical flaws, I can’t actually be sure that my intuition about demising returns is right. The whole reason statistics exists is that our intuitions are quite often wrong. If intuition and reality lined up on a regular basis, we wouldn’t need stats people.

And third, even if the authors caught a break this time and got vaguely-valid results using invalid methods, future studies that use these techniques may not be so lucky. Calling out the bad methods in high-profile work may give those critiques the attention they need to prevent more-serious future failures.

So over the next few posts I want to dig into the statistical flaws with how this paper was written, and what they mean for its conclusions in particular, and for how we should approach difficult statistical issues more generally.

This poses, however, a unique challenge. The report’s claims are facially plausible, as are its estimates. It is not as if it said the earth was flat. It’s more like it said that vaccines cause autism: the correlation exists, there is a causal story that seems at least possible to lay readers, and the result aligns with many people’s (sincere) prior beliefs. And as the medical community has discovered, displacing such “empirical” beliefs is tough.

But I’ll wade in, nonetheless. So in this post I want to zero in on what strikes me so far as being the report’s cardinal sin: the failure to properly account for the feedback effects between prison and crime.

Estimating the relationship between incarceration and crime raises the specter of a fairly intractable statistical problem called “endogeneity” or “simultaneity.” For the basic regression model that the Brennan Center report uses to work, one assumption that has to hold is this: the explanatory variable (here, incarceration) has to affect the outcome variable (here, crime), but not vice versa. So while trends in incarceration can shape crime rates, the model fails if crime rates also shape prison populations.

But that assumption obviously doesn’t hold here: prison populations surely shape crime, but crime rates themselves influence how many people are in prison, both directly (more arrests, convictions, admissions) and indirectly (by, say, changing attitudes towards crime). Due to this problem, simple regression results will be biased.

Not just biased, though. Biased upwards. That is: towards zero, or towards a positive (criminogenic) effect.* So when the Brennan Center argues that prison has no effect anymore, that might very well be false: the uncorrected bias pushes results away from finding a crime-reducing effect.  If anything, thanks to the bias a zero-effect suggests that there is at least still some crime-reducing impact to incarceration. (Which is not to say that it is a cost-justifiable effect!)

Now, in the report’s defense the authors do admit that it exists. But their response? “It’s really hard, the one solution people generally use, this thing call instrumental variables, is really tricky to use, so we’re just going to ignore it.” Lest you think I’m being harsh, here’s the relevant passage: 

There are other ways to address simultaneity. One is through a controlled experiment. However, with something like incarceration, this is not feasible. Another is through natural experiments or instrumental variable techniques…. However, good instruments are difficult to construct, and even then the results can be highly dependent on the instrument chosen. For instance, Levitt’s 1996 paper uses prison overcrowding legislation as an instrument (it is plausibly correlated with prison populations and plausibly uncorrelated with crime) and finds a large downward effect of incarceration on crime. But Geert Dhondt’s 2012 study uses cocaine and marijuana mandatory minimum sentencing as an instrument and actually finds an upward effect of increased incarceration on crime. The authors recognize the potential issue of simultaneity but due to the complications invoked by instrumental variables did not apply that technique to their analysis. 

The authors are right that IVs are tricky: there’s plenty to criticize with Levitt’s, but there are also lots of reasons to suspect that Dhondt’s isn’t valid either.** But it is that last sentence that really troubles me: “since it is tough, we will simply ignore it.”

Now one reason the authors are willing to dismiss the problem is that in the paragraph above the one I quote they cite three papers for the proposition that endogeneity isn’t really a problem in crime-prison models. But they are wrong about that. One paper doesn’t discuss the issue at all. The other two improperly use a test (called the Granger test) to dismiss the problem.

Furthermore, at no point does the report ever cite this fantastic Vera institute report that demonstrates just how important endogeneity is. The Vera report divides the literature into articles that control for endogeneity and those that don’t, and the results are striking (look at Table 1 on page 6): those that try to control for it consistently return much higher results than those that don’t. At the very least, this makes clear that the blithe assertion that we needn’t be concerned with endogeneity is wrong.

To be clear, I’m not saying that by refusing to use, say, Steve Levitt’s instrument the paper is invalid. Nor am I saying that Dhondt’s instrument can’t be valid, even though it produces results that don’t align with my prior assumptions. But what I am saying is that the literature on the importance of endogeneity to this particular question is extensive enough, and the biases introduced by endogeneity in general are well-known enough, that simply punting on the problem is just… unacceptable, particularly in a report that is going to get, and already is getting, so much attention.

This post is getting overly long as it is, so let me just wrap it up with the first big takeaway from all this: The most obvious point by now should be that any of the original results produced by this report should be viewed with great caution. Most likely the model is consistently understating the true impact of crime. This isn’t the only problem with the estimates, and I’ll turn to more in the days ahead, but this is a big one.

At the same time, don’t throw out the baby with the bathwater. Prison may still have a bigger impact on crime than the report states while (1) exhibiting diminishing returns to scale and (2) no longer being cost-justifiable.

In later posts, I’ll think a bit more carefully about a deeper issue that extends beyond this paper, namely what we should do when there is no easy solution to this problem. What if we all (who is this “we”?) ultimately decide that no instrument exists for this problem? There are some technical solutions that may exist, but there is also the more philosophical question of how to make decisions when we know we can’t solve a problem. But more on that down the line.

 

* Theoretically, more prisons leads to less crime, but more crime leads to more prisons. What a regression returns, simplifying grossly, is the net correlation of these two effects. So if the real effect is, say, that a 10% increase in incarceration results in a 4% reduction in crime, a regression could return a result of a 2% decline, or maybe even a 4% increase. All because it is also picking up the effect to which a 10% increase in crime leads to some sort of increase in incarceration.

** The statement that “the results can be highly dependent on the instrument chosen” is also quite dubious. If there are multiple valid instruments, then we should expect that IV models using each type of instrument would return fairly similar results. That Levitt’s instrument increases the crime-reducing effect of prison and Dhondt’s the crime-increasing effect suggests that one instrument is simply better than the other (or that the models are otherwise differently designed—and again, in ways such that one is better and the other worse). But the authors here make it sound more like random noise, not about the very difficult question of assessing the relative merits of various IVs. 

Posted by John Pfaff on February 17, 2015 at 11:28 AM in Criminal Law | Permalink | Comments (1)

Tuesday, February 10, 2015

Brian Williams, Eye Witness Testimony and the Permeability of Memory

I have no idea after reading this article in the New York Times if Brian Williams does or does not believe that he witnessed the helicopter crash when he was actually nowhere near it, but I do believe, based on scientific evidence discussed in this post, that our memories are highly permeable.  Things that we see and hear later can become part of what we think are events we actually experienced.    In other words, our memory is not like a hard-drive or a camera where events are recorded.  Instead, they are a creation of our imagination that recreates themselves every time we think of them.  See this article in Scientific America for the details.   In an article I’m preparing for the current submission season, I start with reference to the charming  Lerner & Lowe song from Gigi  where Maurice Chevalier and Hermione Ginglold  compare conflicting versions of the first time they met—each equally sure they are right.  And that’s the problem—our mind gives us memories as a seamless whole, we cannot perceive cracks or seams. 

But what does this have to do with law?  Well, Brian Williams will be fine whatever happens.  However, the millions of people in the United States who have been convicted based on inaccurate eye-witness testimony are far less fortunate.  Here at Texas Tech University we recently honored the memory of Tim Cole, a student at the university, who died in prison after being wrongly convicted of a rape based on now recanted eye-witness testimony.

Elizabeth Loftus, the research psychologist who did the most to make this phenomena known in the criminal justice community, describes here research in this TED Talk and her website at the UC Irving School of Law will lead you to her substantial body of work.   My very favorite study showing how false memories can be created involves individuals who were convinced that they shook hands with Bugs Bunny at Disneyland (an intellectual property impossibility).  Other legal scholars to check out are Mark Godsey at the University Of Cincinnati College of Law School, Sandra Guerra Thompson at the University Of Houston Law Center, Professor Brandon Garrett at the University of Virginia School of Law, Patricia J. Williams at Columbia Law School.  For a compilation of materials see these collections put together by the Huffington Post and The Innocence Project including this piece by Barry Scheck highlighting a recent National Academy of Sciences report.

Posted by Jennifer Bard on February 10, 2015 at 12:53 PM in Criminal Law, Current Affairs | Permalink | Comments (0)

Public Defenders as Prosecutors?

I want to continue to think about how we should handle criminal cases involving police misconduct, particularly (though not only) police-involved killings. The core problem, obviously, is that local DAs need the cooperation of local police, making it hard for the DAs to vigorously prosecute office misconduct. The failure to secure indictments in the Michael Brown and Eric Garner cases highlighted this problem.

In my previous two posts, I considered some of the limitations with Wisconsin’s solution, namely relying on outside investigators to provide local DAs with a report, and with what New York’s AG wants, namely a special police-focused prosecutorial unit in the state AG’s office.

But criticism is easy. If I have problems with the Wisconsin and New York plans, what would I recommend?

I want to suggest something fairly radical, which I haven’t seen anywhere in the debate. There could be a host of reasons why this is impractical politically, or why implementation could never work, etc. etc. But that’s the great thing about a blog: you can float a trial balloon and see if it is filled with helium or lead.

What if we created a special police-misconduct prosecutors office in the public defender’s office?

I admit that this might sound a little implausible, but the more I’ve thought about it, the more appealing it seems to me. Or, at the very least, thinking about it this way highlights the very real challenges creating an effective police-violence prosecution unit faces.

So what are the benefits of relying on public defenders to prosecute police cases?

1. It solves the problem of confirmation bias/personal investment. Unlike prosecutors, public defenders work against the police. So they lack the inherent inclination to believe them (that’s the confirmation bias part), and they don’t have to worry about jeopardizing on-going relationships. Of course, the problem could run the other direction, that they overestimate the likelihood the police are guilty and go to trial too often. But my data-free gut instinct is that “net” confirmation bias would drop. Regardless, the beyond a reasonable doubt standard should protect police from excessive PD zeal. 

2.  Not only does relying on PDs eliminate the problem of attacking people needed to do one’s job, but it addresses the internal promotion problem as well. A prosecutor who effectively prosecutes police will likely face limited promotion options: no one is going to become a top senior DA based on the number of police sent to prison/disciplined/etc. But those internal incentives switch in a PD’s office. The public defender who aggressively defends defendant/civilian interests by targeting police misconduct is doing exactly what the office seeks to do.

3.  More broadly, calling on PDs to handle these cases likely creates a better alignment with underlying senses of purpose. In a system that has almost no jury trials, PDs already see their job as providing one of the few meaningful barriers between criminal defendants and the power of the state. Punishing criminally-malfeasant members of that state seems consistent with that goal not just doctrinally, but also conceptually. PDs have already voluntarily taken on the unpopular job of representing those disliked by society. Defending the unpopular seems to be a close parallel to prosecuting the popular.

4.  Asking PDs to prosecute police misconduct also seems to solve a major information problem that all the other proposals ignore. The entire conversation about outside prosecutors has focused on a single issue: how to handle police-involved killings. And these cases are easy to identify: they quickly go public, and a killing can’t not be reported (in general). In a future post, though, I want to think about other types of police offending that merits formal prosecutorial response, such as aggravated assault or (perhaps more for prison guards) rape. And here information about the offense becomes trickier to uncover.

How would, say, the AG unit based in Albany or Sacramento know about these cases? Who would refer them to the AG? Who would screen the claims in the AG’s office, and how would they know which claims are viable/legitimate? Compare that to a system where the PD representing the defendant need only go down the hall to the PD unit handling police abuses and say “my client claims he was beaten senseless while handcuffed. And I believe him because….” Information flows are faster and easier, and the social networks of PDs provides a ready screening mechanism.

All that said, several concerns jump to mind:

1.  PDs are already over-worked and under-funded. Now I’m dumping even more work, and politically unpopular work at that, on them. Do we think that state legislators will provide sufficient additional funding to ramp up such offices? The AG’s office has a lot more political clout, and it has the political “cover” of not just representing the “bad” guys (and now going after the “good” guys), so it could likely fund such an office much better than the PD could.

2. Along the exact same lines, PD offices may be concerned that effectively prosecuting police will lead to budget cuts, for the very purpose of shutting down such actions. 

3. A lot of PDs may feel that everyone deserves to be protected from punishment by the state, even state actors who violate the law. So calling on PDs to prosecute even these sorts of cases may not align as well with underlying preferences as I suggest above.

4. This approach doesn’t work so well for cases of non-lethal police abuse involving people never arrested, since these victims never raise their claims to PDs. But then neither does the AG approach, so this more indicates that this proposal isn’t perfect (really??), not that it is worse than the alternatives.

Now, all this said, I don’t actually expect to see bills start moving forward in state legislators to set up PD Prosecution Units, although it would be great if they did. But hopefully at the very least by highlighting how well-incentivized PDs would be to handle these police-involved cases, this points out the incentive challenges that arise when we ask any sort of prosecutor to manage them.

 

* The immediate rebuttal here is that BRD does not often appear to protect defendants in a world of plea bargains. But I think police defendants would be qualitatively different than the usual criminal defendant. They have a better understanding of the law, they will almost certainly make bail (between police union fundraising and likely more-favorable treatment from judges—and thus lack the incentive to plead to time served), and they will have solid representation. For defendants like this, BRD likely has a lot of oomph.

Posted by John Pfaff on February 10, 2015 at 11:40 AM in Criminal Law | Permalink | Comments (7)

Wednesday, February 04, 2015

Prosecutors and Police Killings: The Limits to Wisconsin's Innovative Solution

Despite all the attention being paid in recent years to the problems of large-scale incarceration in the United States, no one really focused on the behavior and incentives of prosecutors; even the National Research Council’s giant report on incarceration ignored them. But that all changed with the killings of Michael Brown in Ferguson, Missouri, and Eric Garner on Staten Island, and the failure of the local prosecutors to indict Officers Darren Wilson and Daniel Pantaleo.

So at least one issue involving prosecutors is now receiving national attention: how to properly prosecute police-involved killings.

The problem with asking local prosecutors to handle police-involved killings is obvious. The prosecutors need the police to bring them good cases. If the prosecutor and police don’t have a good relationship, the police can simply refuse to work with the prosecutors. And prosecuting police is surely one way to end up with a bad relationship.

This isn’t navel-gazing hypothesizing. Prosecutors already have a uneasy relationship with police. Just consider this New York Times headline: “In Unusual Collaboration, Police and Prosecutors Team Up to Reduce Crime.” Or consider Dan Richman’s account of how Harry Connick, Sr.’s (yes, Jr.’s dad) effort to reform plea bargaining while the district attorney of New Orleans was thwarted by the NOPD’s refusal to work with him.

Moreover, and less cynically, prosecutors may be unwilling to press charges simply because they are inclined to believe the officers, and confirmation bias can exert a powerful pull at this point.

So what’s to be done? The only state to take any legislative action on this issue is Wisconsin, which passed a law in April 2014 requiring the state attorney general to establish an independent review panel, comprised of a retired judge, a former senior sheriff or police official, an assistant AG, an academic (!), and a former ADA or AAG. The panel hires outside investigators to review police-related killings, and reviews the report in an open hearing.

At that point, though, the panel makes recommendations to the local prosecutor about what to do next. And the first time the law was used? Despite the fact that the police department fired the officer involved, the local attorney general declined to press charges, claiming that he felt the use of force was acceptable. Not necessarily all that surprising.

Wisconsin could alter the law to refer the case to an outside prosecutor. The simplest way to do this would be to remove the case to another jurisdiction: prosecute the case somewhere else in the state. That way the prosecutor isn’t still trying to convict the officers he has to work with.

But this faces two serious problems. First, and more obviously, I feel like the problem we currently face and that Wisconsin still faces is less that of the local prosecutor but of the local prosecutor. In other words, even an outside DA is likely disinclined to press charges, whether out of general sympathy for/belief in the officers, or because charging hard at outside officers will still anger those in his own jurisdiction that he has to work with. What upside is there to a prosecutor in Buffalo aggressively charging police officers from New York? That will surely anger the BPD.

Second, and less obviously, most police-involved killings are likely to take place in urban jurisdictions; almost by definition, such cases would have to be removed to less-urban counties. But less-urban counties are also more likely to be increasingly white and conservative—both prosecutors and juries in such areas may naturally hold more-favorable views of the police than those in the county where the shooting took place. So transfer may actually reduce accountability. 

So can we improve on these options? In my next post I want to look at the possible role of the AG, but I’m skeptical here as well. After that, I’ll consider a rather outside-the-box option that no one seems to be discussing, and which very well might be politically impossible, but which I think gets to the real heart of the problem here (which is not so much the local as it is the prosecutor).

Posted by John Pfaff on February 4, 2015 at 09:31 AM in Criminal Law | Permalink | Comments (0)

Tuesday, February 03, 2015

Thinking About Prosecutors

Thank you to Prawfs for having me back to guest-blog again this month. I want to use my time here to (publicly) work through some very-early thoughts on what motivates the most important, yet most under-examined, actor in criminal justice: the prosecutor. Prosecutors have certainly been in the news a lot lately, but by and large we have very little empirical information on what motivates them or shapes their decisions—in no small part because we have almost no data on what they are doing. 

There are two question in particular I want to think about here. The first, which is the more high-profile these days but arguably the less important, is about how to resolve the clear agency problem that arises when prosecutors are asked to prosecute members of their local police departments. In the wake of Ferguson and Staten Island, numerous proposals have been floated, from Wisconsin’s policy of referring police-related killings to outside district attorneys to appointing special prosecutors housed inside state attorneys general offices to handle such cases.

But most of these proposals note the incentive problems faced by local prosecutors without really confronting the incentives of the replacement. Why would we expect a prosecutor from Buffalo to anger the BPD by aggressively going after the NYPD? As for special prosecutors, unless there is some clear referral rule (“all killings go to the AG”—and are killings the only things that should be handled by the AG?), what are the AG’s (or DAG's) incentives for choosing cases? And given these incentives, whatever they are, will they choose cases that align with what “matters”? And who decides what matters in the first place: the heavily-policed community in which the victim is more likely to reside, the broader community protected by that police force, the state-wide electorate that votes for the AG, etc….?

Obviously, the current system cannot stand, but how to design an optimal alternative strikes me as actually quite tricky.

The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.

The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.

The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.

So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.

But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.

So those are the topics for the time ahead. Like I said, my thoughts here are raw and green—and, in many places, likely wrong—and I’m tossing them out in an effort to get real, substantive feedback. I’m looking forward to what everyone has to say.

Posted by John Pfaff on February 3, 2015 at 11:34 AM in Criminal Law, Law and Politics | Permalink | Comments (3)

Tuesday, January 27, 2015

Extending Unequal Second Amendment Rights

Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.  We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen.  But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm. 

We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites.  (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.)  Then there's Driving While Black.  I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.

And that's a sticky problem.  Under current law, there isn't much you can do except to change police conduct from within.  Courts don't have a lot of sway.  Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search.  That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.

With the expansion of the Second Amendment, we have a chance to think more about the problem early on.  Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights.  But it seems likely that these new rights will not be extended equally.  First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will  embed historical racial disparities in arrest, prosecution, and conviction.   Theres more, however.  In my mind,  the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include  the right to carry a gun and not get stopped and searched for doing so.  In that respect, I fear we won't deliver equal rights.  

And those disparities only reflect the burdens imposed by the state.  It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights.  As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.

So what to do?  One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit.  The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately.  (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.)  But is there a third way?  Could we view it as a property right which is impaired when a person is subject to a search?  Might there be a novel Fifth Amendment claim here?  Could we impose a tax on guns that is used to fund a statutory compensation scheme?  Is there a way, other than the exclusionary rule, to disincentive police over-reach?  (Something like Richard  Myers' Fourth Amendment Small Claims Court?)

This is all half-baked, but it's a problem that troubles me.  I'd love thoughts.

Posted by Dan Filler on January 27, 2015 at 11:53 AM in Constitutional thoughts, Criminal Law, Current Affairs, Property | Permalink | Comments (3)

Tuesday, January 06, 2015

Policing Part 3: Some Unoriginal Thoughts on Cost-Benefit Analysis

I hadn’t intended to start an extended debate about policing on this blog; the area isn’t even particularly within my expertise. But the very interesting discussion sparked so far, along with a story that I just saw and an experience I just had, have inspired yet a third (and hopefully a final) post on the subject. It’s a call for more open talk about the costs even of effective law enforcement, and has some remarks about race and class as well as about Singapore, below the fold. Nothing in here is terribly original (not within my expertise, remember?), but these are things we need to be talking about right now, in the context of the Brown and Garner killings and the NYPD slowdown. So consider this an attempt to steer the conversation toward territory well trod by others.

First the story. The Guardian just wrote a sort of urban profile of Singapore, focusing on the way that its extreme public order policies (chewing gum banned to keep it from littering places, etc.) underpin its low crime, prosperity, etc. This matches my very slight experience of the country—a few years ago, I was sent by a nerd camp program to teach a very short (days, not weeks) political science intensive to some middle-schoolers, and my impression of the country was one of almost overwhelming sterility. Much of the city was a giant underground shopping mall, everything was very, very clean, but very, very intimidating. I spent the entire time terrified that I’d teach the kids something a little too liberal, or thoughtlessly spit on the street or something and get arrested. This attitude of fear appears to me to be deliberately cultivated by the state. The first greeting I got from the Singaporean government was its infamous immigration form, which announced “death for drug traffickers.” Ghastly.

Second, the experience. Yesterday afternoon, I defended myself in a traffic ticket trial in Princeton municipal court. (It was a quixotic attempt to get the court to read a mens rea requirement into a crosswalk law. I lost. I may appeal.) As happens in municipal courts where almost nobody tries anything, I sat there for hours while the court ran through its entire docket of first appearances and warrants before getting to me. The most astonishing case up before mine was that of an early 20’s-appearing, neatly but not expensively dressed, Black man. He’d been picked up on an arrest warrant for a three-year old fine of about $600; since it was three years old, I imagine it was probably originally a much smaller amount and for something pretty minor, before the fees that get added when one misses a fine. He claimed that he’d simply not realized the fine was due, and that as he was a temp worker with inconsistent income, he couldn’t pay anything on the spot. However, he had just gotten an assignment, and would get his first paycheck in two weeks. Accordingly, he was confident he could handle a $100 month payment plan, beginning with the first payment in two weeks with his first paycheck. The judge accepted his payment plan, but scheduled his first payment not for two weeks from the date, but for the very next day, on pain of another arrest warrant. There was no evidence introduced about his ability to pay other than his own testimony, which seemed honest and believable to me; he seemed like a good guy and a straight shooter.

What the Singapore story leads me to think is this: let us suppose arguendo that things like the “broken windows” policies work, that aggressive enforcement of laws that I would consider petty really does make life better in a lot of ways—cleaner streets, and maybe even less serious crime. At what point is the marginal gain in things like cleaner streets and less crime outweighed by the marginal cost in things like conformity and fear? It seems pretty clear to me that Singapore has gone too far in one direction. New York obviously isn’t Singapore, but has it, too, gone too far? How would we tell?

What observing the guy picked up for the overdue fine leads me to think is this: what about the economic and social cost of broken windows-type policing (scholarly ref 1, scholarly ref 2, District Court opinion from last year finding racial bias in New York City stop and frisk practices; all three references just skimmed, no full endorsement intended)? And who pays that cost? The answer to the second question is obvious: people of color, who are profiled, and poor people, who have their lives disrupted by the costs that those of us with more money can easily absorb. And while the racial disparity is a product of our own disgusting racial politics and history, the class disparity is, I would suggest, almost a structural necessity—the rich have more access to private spaces to carry out acts that are punished in public but de jure or de facto decriminalized in private (or just hard to enforce behind walls); the very poor lack even the spaces to carry out basic acts that are de jure legal in private but criminal in public like drinking and urinating.

My crosswalk fine won’t disrupt my life. but what will happen to the young man who was ordered to pay today money he won’t have until two weeks from now? A temp worker who cannot come up with a hundred uncommitted dollars on demand is on the economic knife-edge, and so the judge’s order could easily cause extreme collateral damage. He might not pay it, in which case he’ll be under yet another arrest warrant, and could easily get hit with more fines, or get picked up again and this time lose a job because of the jail time. Alternatively, he could take unaffordable measures to pay for it. He could take out a payday loan, perhaps, rolling it over repeatedly and ultimately paying hundreds more dollars to the lender. He could skimp on rent, and risk getting evicted. He could skimp on car repairs or a car payment, and risk losing employment because of inadequate transportation. The point being that for the poor, being subject to a fine backed up with the power of the state in the hands of a compassionless judge can lead to massive collateral consequences. And criminal justice policies that subject everyone to a greatly increased risk of petty fines put those without the cushion to absorb those fines at risk of greatly magnified economic impact. This, too, is something that needs to be taken into account in any cost-benefit analysis of petty policing policy: how much crime reduction is needed to justify putting people into increasingly precarious economic positions this way?

Even if you think (as the unempathetic judge evidently did, and as I do not) that the man before the court was to rightly blame for not knowing about the fine, or for not having budgeted to pay it, these consequences go beyond the individual. As a society, is a little bit of public order worth having some of our members in more precarious economic positions? Poverty does not hurt only the poor.

Posted by Paul Gowder on January 6, 2015 at 09:30 AM in Criminal Law, Current Affairs | Permalink | Comments (11)

Monday, December 08, 2014

Body cameras and and predictive analysis

Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.

Posted by Howard Wasserman on December 8, 2014 at 06:43 PM in Article Spotlight, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 04, 2014

Prosecuting police--the role of the grand-jury pool

Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.

But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.

The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.

But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.

Posted by Howard Wasserman on December 4, 2014 at 05:41 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, November 20, 2014

Hoping to help Kickstart a notable new death penalty documentary

I have not posted here in a long time, but I am eager now to promote widely an important film project from some folks in London focused on modern US death penalty stories.  I am partial to the project because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.

This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming.  The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25.  I have been told that they will not be able to effectively finish this film without additional help for further funding.

The film itself is titled The Penaltyand it is to be a 90-minute feature documentary examining the current state of America's capital punishment system.  While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film looks more closely at people involved not on the row:  lawyers, family members, politicians, campaigners, law enforcement, and others.  A snippet from some filming so far is available at  www.thepenaltyfilm.com

I understand that the filmmakers have been particularly focused on following (1) my former student, Assistant Federal Public Defender for the Southern District of Ohio Allen Bohnert through the problematic execution of Dennis McGuire and its fallout, and (2) Louisiana death row exoneree Damon Thibodeaux as he puts his life back together after wrongful conviction and exoneration.  I believe they are also filming lots of other characters from the capital punishment universe, including many experts in the field such as Debby Denno, Jeanne Woodford, David Dow, Kathryn Kase, Peter Neufeld, Richard Dieter and Clive Stafford-Smith.

Finally, I have been told that if you have any ideas on stories that the filmmakers should look at, or have ideas of people they should talk to (e.g., grant-giving foundations, media outlets, campaign groups, or others), the filmmakers are looking to spread their network far and wide.  You can pass on ideas by emailing laura@reelnice.co.uk or will@reelnice.co.uk.

Cross-posted at Sentencing Law and Policy.

Posted by Douglas A. Berman on November 20, 2014 at 09:52 AM in Criminal Law, Film | Permalink | Comments (0)

Tuesday, October 14, 2014

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)

Monday, October 13, 2014

Adverbs and the Law

One of the many fun things about teaching Criminal Law to first-years is playing around with the different uses and meanings of all the mens rea terms -- adverbs (nearly) all.  (I admit, I try to get them to at least appreciate the colorful, pre-MPC terms like "wantonly", "abandoned and malignant", "depraved indifference", etc.).  The other day -- prompted at least in part by the debate in Hobby Lobby about "substantially" -- the Wall Street Journal noticed that, whatever our composition teachers might tell us is good writing, "maligned" adverbs live on in the law and in court cases interpreting criminal statutes ("Why Adverbs, Maligned By Many, Flourish in the American Legal System").   (By the way, count me among those who think that Justice Kennedy carries adverb-adversion too far.)  Here's a bit:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.

Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them. . . .

 

Posted by Rick Garnett on October 13, 2014 at 03:02 PM in Criminal Law, Rick Garnett | Permalink | Comments (2)

Monday, October 06, 2014

And then Ferguson

The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.

After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.

So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.

1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings "push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution." This white paper addresses several root causes of the alienation that led to the protests in Ferguson.

2. SLU Clinical faculty Sue McGraugh (see her Twitter feed @slewzq for excellent updates), John Ammann, and Brendan Roediger have represented protesters, lobbied for a number of reforms of the municipal court system, sponsored forums educating members of the public about their legal rights, and supported student advocacy work at city council meetings and other public forums. A more full list of activities is here.

3. Justin Hansford, an assistant professor, is an active leader on the ground, helping the U.S. Human Rights Network prepare a report to the United Nations and collaborating with the Advancement Project, NAACP Legal Defense Fund, National Lawyer's Guild and other national legal groups with associated legal efforts.

4. Students . . . lots of students have been active in the work of the clinics, in voter registration drives, as legal observers in the protests, educating the public about their legal rights, developing ongoing strategies for reform and education, surveying the legal needs of the Ferguson community, and more.

5. Bill Freivogel (St. Louis Public Radio, Director of the Univ. of Southern Ill. School of Journalism and Professor in the Paul Simon Public Policy Institute) has been collecting and publishing general information for the public on the legal issues related to the shooting and subsequent protests. Relying on a cast of many sources, his articles have focused on the rules about deadly force, why the officer wasn't immediately arrested, the grand jury process, the prosecutor's plans after this grand jury returns (or refuses to return) an indictment, the federal investigations related to Ferguson, and how changing police practices could help bring justice to the community. 

I'm sure that I am leaving out people whose work I chose not to highlight or don't know enough about. 

***

One takeaway to leave you with is a cautionary note. Ferguson is a relatively sleepy suburb, which is why the size of the protests and police response were both so surprising. There are people who are fairly disillusioned with the system and who feel relatively powerless there, but they have, by and large, reacted by protesting and not resorting to violence. There are other parts of the metro area with larger concentrations of people in poverty, larger numbers of people affected by systemic racism, people who feel more alienated, and who may see no reasonable alternative to violence, places like North St. Louis. Depending on the results of the grand jury proceeding and the police response in anticipation of violence upon news of those results, there is a lot of possiblity for things to get much worse. I hope they don't.

Posted by Marcia L. McCormick on October 6, 2014 at 11:59 PM in Criminal Law, Culture, Current Affairs, First Amendment, Teaching Law | Permalink | Comments (1)

Friday, September 05, 2014

Intellectual Property Infringement as Vandalism (Part 1)

In addition to empirical work in intellectual property, another area that has been keeping me occupied is the intersection between IP and criminal law. A few years ago, I wrote an article entitled The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harvard Journal of Law and Technology 469 (2011), in which I explored why we have criminal sanctions for copyright and trademark infringement but not for patent violations. Earlier this year, I published a paper called The High Cost of Low Sanctions, 66 Florida Law Review 157 (2014), that examined how low sanctions can lead undesirable laws to be passed and can eventually morph into high sanctions, an analysis whose focus was partly on copyright law. I then moved on to study, in an article called Intellectual Property and the Presumption of Innocence that is forthcoming in the William & Mary Law Review next year, the constitutional dimension of intellectual property criminal cases. I argued that prosecutors should have to prove that every element of such crimes, including the jurisdictional element, has been met beyond a reasonable doubt before convictions can occur. Most recently, I turned my attention to the relationship between the criminal (and civil) sanctions in intellectual property and those that we observe in property. This project, co-authored with Robert E. Wagner, is entitled Intellectual Property Infringement as Vandalism, and I would like to take the opportunity to describe it further here.

One of the recurring questions in scholarship is whether intellectual property qualifies as property and, as a correlative matter, whether IP infringement is theft. Content owners significantly push this analogy, including in heavy-handed ads that seek to remind people not to “steal” songs or movies. Meanwhile, critics have chipped away at the theft label. They have argued that when an object is stolen, the owner is entirely deprived of it, whereas IP owners maintain integral copies of their works when infringement takes place. Unlike in the case of theft, the intellectual property owner can also continue to sell copies of said work to willing buyers, if the market will bear it. Furthermore, to the extent the owner suffers a loss at the hands of the IP infringer, that loss is difficult to calculate. Not every infringer would have bought the work had he lacked the opportunity to infringe. At the same time, nobody can say with certainty about herself—even assuming perfect honesty—which works she would have bought in a zero-infringement world because the impulse to rationalize one’s actions in this setting is strong.

The sphere that discusses intellectual property infringement is thus mostly split between two camps. One of them believes that infringement is theft and concludes that if it is theft, the criminal sanctions and harsh civil sanctions that we have on the books are warranted. The other side denies that infringement is theft, sometimes downplays the gravity of infringement behavior, and regularly believes that the level of sanctions that American law provides is unjustified. We argue in our paper that the dichotomy that these two camps endorse is faulty, and that the question of whether intellectual property infringement parallels violations of property law requires much more nuanced analysis before it can influence the calibration of sanctions for intellectual property infringement. We seek to show that there is little meaningful difference between intellectual property infringement and property violations, but that the question of whether infringement is theft has led to the creation of an unnecessarily confusing and polarized discussion framework. While many scholars are correct to state that intellectual property infringement is not and cannot be literally the same as theft for the reasons briefly delineated above, such infringement bears significant similarities to and few distinctions from lesser property-related offenses such as vandalism or in some cases trespass. 

If one accepts the idea that IP infringement does at times parallel property violations, albeit not necessarily theft per se, the startling realization emerges that IP laws actually may punish wrongdoers more harshly than property law punishes defendants for equivalent offenses. After creating an analytical model to determine the content of “equivalence” in this context, we demonstrate that adopting a truly property-oriented IP legal regime may actually mandate a view of lowered criminal and civil sanctions. I will explore the ideas from this paper in more detail in future posts.

Posted by Irina Manta on September 5, 2014 at 10:05 AM in Criminal Law, Intellectual Property, Property | Permalink | Comments (3)

Tuesday, August 19, 2014

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis. 

Posted by Lyrissa Lidsky on August 19, 2014 at 11:53 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Lyrissa Lidsky | Permalink | Comments (0)

Wednesday, July 16, 2014

What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision

The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."

"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts."  But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time." 

A few points here.

First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death.  If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage.  On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty

Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?

Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution.  But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here).  I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.

Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.

Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation.  Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim).  But I don't think that's right at all. 

In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution. 

 I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring  proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me.  I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.

 

Posted by Dan Markel on July 16, 2014 at 07:16 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (8)

Friday, June 27, 2014

Harmon on the fragility of knowledge in the Riley (cellphone and 4A) case

Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I'm sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).

--

In light of the likely significance of the Court's opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support. 

Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up.  LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.”  But that sentence has appeared unchanged since the first edition of the treatise in 1978.  And LaFave’s support for the proposition is itself pathetic.  It comes in a footnote which reads:  “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).” 

Because I’m crazy, I pulled Taylor and the Model Code too.

 

Both sources suggest that they can’t really prove the original point.   Taylor says, “[M]ost law enforcement agencies have been exceedingly lax with their record-keeping in this field.  But there a few offices where the records are full enough to be meaningful, and from these it is abundantly apparent that searches of persons and premises incident to an arrest outnumber manifold searches covered by warrants.”   He provides no further support for the claim.

The Model Code Commentary provides the numbers from 1966, but also makes it clear they are not to be taken too seriously.  The New York data was apparently furnished directly to the Code’s Reporters from the NYPD, and the San Francisco numbers came from a New York Times’ reporter.  (It was Fred Graham, the Supreme Court correspondent at the time and a lawyer.)   According to a footnote to the Commentary, “Research efforts elsewhere foundered on the rocks of record-keeping failures.  Law enforcement agencies do not commonly maintain statistical records pertaining to search warrants or searches and seizures generally.”

So the Supreme Court cited a source, unchanged since 1978, which cites two sources from the late 1960s, both of which suggest that there is very little evidence for the proposition because police record keeping is weak.  I’m hardly one to criticize imperfect footnotes (since I’ve surely written many myself), but this one interests me.   The Court is all too willing to make unsupported claims about policing, a problem I’ve noted before.  See The Problem of Policing, 110 Mich. L. Rev. 761, 772-773 (2012).  Moreover, for the Court, as well as scholars and policymakers there is a serious problem in finding credible information about what police do.   See Why Do We (Still) Lack Data on Policing?, 96 Marq. L. Rev. 1119 (2013).  The Riley/Wurie citation nicely illustrates both problems, and it won’t be the last to do so.  

 

Posted by Dan Markel on June 27, 2014 at 11:13 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (0)

Tuesday, June 24, 2014

A victory for the rule of law - apparently not

I had to edit this blog because literally as I posted it, the news changed.  Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order.  As I previously wrote, her imprisonment violated Sudanese law.  Her release was a victory for the rule of law.  International pressure influenced this outcome.   But the victory was very short (less than 24 hours).  The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.

Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way.  There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention.  Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim.  Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.

Posted by Naomi Goodno on June 24, 2014 at 11:13 AM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink | Comments (1)

Thursday, June 19, 2014

How to Prosecute Crimes Committed Abroad?

Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth.  He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad.  The Pepe case had been lingering for eight years.  The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).

I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over.  Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.

If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply?  It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible.  That seems simplistic, and, indeed, case law is unclear.  For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts."  At that point, the U.S. citizen has the right to constitutional protections.  But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.

What about evidentiary issues?  For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia.  When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial.  From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles.  Given how easy international travel has become, these issues will become more and more prominent.

Posted by Naomi Goodno on June 19, 2014 at 05:55 PM in Constitutional thoughts, Criminal Law, Current Affairs, International Law | Permalink | Comments (0)

Friday, June 13, 2014

The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old

As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention. 

Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls.  Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison.  Their father is a U.S. citizen.  Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith.  Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family.  The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.  

There are clear human rights violations and violations of Sudanese law.  Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law.  Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process.  Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan.  Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.

The pressure from the international community caused some movement, albeit ineffectual as it currently stands.  A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later.  This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur.  What can be done?  What should be done?  Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children.  More legal attention and monetary support should be put in place to uphold the rule of law. 

Posted by Naomi Goodno on June 13, 2014 at 05:25 PM in Criminal Law, Culture, Current Affairs, Gender, International Law, Law and Politics, Religion | Permalink | Comments (1)

Thursday, June 05, 2014

'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity

The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials.  As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act.  In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by.  In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal. 

Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice.  No doubt, there is a rule of law problem.

Rule of law issues are complex.  Developing countries do not have the funds to enforce laws.  Citizens of developing countries are often unaware of their rights and protection under the law.  Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges.  The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front).  The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily.  Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law. 

It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice.  This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute.  A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity.  There are some potential problems with this analysis, though. 

Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged?  Many developing nations (including India and Pakistan) have not ratified the Rome Statute.  However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court.  In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member.  With enough international pressure, perhaps the Security Council would act again.  Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).

Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what?  The ICC is struggling with number of issues, including the problem of enforcement.  Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.

Posted by Naomi Goodno on June 5, 2014 at 03:39 PM in Criminal Law, Current Affairs, Gender, International Law, Law and Politics | Permalink | Comments (2)

Tuesday, June 03, 2014

The Internet and Violence on Campus

I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month.  As a regular reader, I am honored to officially join the conversation.

Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school.  Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school.  I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities.  These cases raise complex First Amendment and due process challenges.  When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials?  As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue.  Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.

In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights.  The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab.  The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program.  Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.

First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet?  If so, does that same standard apply to college students?  I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities.  Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas.  Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower.  But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues. 

Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes.  I would be interested to hear what others think about how schools should respond to these issues.

Posted by Naomi Goodno on June 3, 2014 at 01:44 PM in Constitutional thoughts, Criminal Law, Culture, Current Affairs, First Amendment | Permalink | Comments (2)

Monday, June 02, 2014

Prosecutorial Discretion in Bond

Who would have thought that Bond v. United States -- today's much-awaited decision involving the Chemical Weapons Convention -- would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court's consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, the defendant Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn't reach Bond's conduct. A major theme of the majority opinion is that Bond is an "unusual" and "curious case" that is "worlds apart" from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the "common law assault" at issue in Bond would normally be handled by state and local government. But if that's so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded -- contrary to the intuitive view -- that the Convention's implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court's statutory holding wouldn't have harmful effects. "[W]ith the exception of this unusual case," Bond noted, "the Federal Government itself has not looked to section 229 to reach purely local crimes." Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to "assassination, terrorism, and acts with the potential to cause mass suffering," and the Court declined to "disrupt the Government’s authority to prosecute such offenses." In a related discussion, the Court relied on the constitutional value of state prosecutorial discretion to deflect an argument raised by the federal government. In justifying its decision to prosecute in Bond, the United States argued that state and local prosecutors had fallen down on the job in that they had "charged Bond with only a minor offense based on her 'harassing telephone calls and letters' and declined to prosecute her for assault." The Court's response was curt: "we have traditionally viewed the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system."

Finally, the federal government's failure to exercise wise prosecutorial discretion in Bond was, to a great extent, the problem that the Court perceived and chose to solve. That is surprising. Bond was widely expected to be a grand verdict on Missouri v. Holland and the scope of the constitutional treaty power. To the Court, however, that abstract debate seemed far removed from the facts of the case. The real problem was that federal prosecutors had overreached. As Justice Kennedy told the Solicitor General during oral argument: "It ... seems unimaginable that you would bring this prosecution." But bring it they did. The solution was to prevent such overreaching in the future. As the Court put it: "Here, in its zeal to prosecute Bond, the Federal Government has 'displaced' the 'public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign,' that Bond does not belong in prison for a chemical weapons offense." Under the Court's narrowed reading of the statute, that problem will no longer arise.

Bond's discussion of prosecutorial discretion calls to mind other instances where the Court has policed federal attorneys.  In United States v. Stevens, for instance, the Court (per the Chief, as in Bond) noted that the United States had repeatedly invoked "its prosecutorial discretion" as a potential cure for First Amendment problems.  The Court retorted: "But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige." A related sentiment is at work in Bond.

Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley's "anti-shredding" prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court's most recent brush with the treaty power.

 The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on June 2, 2014 at 04:20 PM in Criminal Law, Judicial Process | Permalink | Comments (3)

Sunday, May 04, 2014

CrimFest 2014 (aka the Sixth Annual CrimProf Conference)

Folks, I'm delighted to share some information regarding the upcoming CrimProf Conference at Rutgers-Newark that the indomitable Carissa Hessick and I have cobbled together with the help of many others.  

First, the conference schedule is here. We have 18 panels and over 60 people slated to present and/or comment. If you're not on the list of presenters/commenters but would like to attend, you are welcome to do so if you're a crimprof or vap/fellow. Information about registration is below. The very modest fee of 50$ gets you breakfast and lunch for two days along with snacks/coffee. Big thanks to our hosts at Rutgers-Newark. Please note the registration fee is NON-REFUNDABLE, and the deadline for registration is June 1, 2014. 

In order to register, you have to use Paypal (kudos to Carissa for figuring this out). Here's the button that should get you on your way to the registration fee:

Posted by Dan Markel on May 4, 2014 at 12:14 AM in Blogging, Criminal Law | Permalink | Comments (2)

Wednesday, April 02, 2014

MERCY IN THE CRIMINAL JUSTICE SYSTEM: CLEMENCY AND POST-CONVICTION STRATEGIES

My colleagues at the NYU Center on the Administration of Criminal Law are hosting a very interesting day of discussions on mercy and clemency in the criminal justice system on the upcoming Ides of April. Doug Berman, a frequent guest here at Prawfs, will be one of the many interesting speakers. Here's the info.

Date: Tuesday, April 15, 2014

Time: 10 a.m. – 4:00 p.m. (CLE registration starts at 9:30 a.m.)

Location: Greenberg Lounge, Vanderbilt Hall, 40 Washington Square South

Keynote Speaker: White House Counsel Kathryn Ruemmler

Panel Discussions: The Role of Law Schools in Delivering Clemency and Post-Conviction Assistance. This panel will discuss how law schools are providing critical services to prisoners through clemency clinics and other mechanisms, and will also provide practical training on how to effectively prepare clemency petitions, post-conviction motions and provide other reentry support to prisoners. Moderator: Prof. Mark Osler, University of St. Thomas Law School. Panelists: Prof. Anthony Thompson, NYU Law; Prof. J.P. “Sandy” Ogilvy, Columbus School of Law, Catholic University; Harlan Protass, Esq., Clayman & Rosenberg; Prof. Joann M. Sahl, University of Akron Law School.

What We Can Learn About Clemency From the States. This panel will examine the different ways clemency and pardon petitions are administered in selected states with effective systems. Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Lt. Governor Matthew Denn, State of Delaware; Hon. Robert L. Ehrlich, Jr., King & Spalding and former Governor of Maryland; Margaret Love, Esq., former U.S. Pardon Attorney; Jorge Montes, Esq., former Chairman of the Illinois Prisoner Review Board.

The Future of Clemency. This panel will discuss recent developments in federal clemency and where clemency could and should be headed in the future. Moderator: Prof. Rachel E. Barkow, NYU Law. Panelists: Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel; Prof. Paul G. Cassell, University of Utah Law School; Prof. Douglas A. Berman, Ohio State University Law School; Sam Morison, Esq.; Daphna Linzer, Managing Editor of MSNBC.com.

REGISTER FOR CONFERENCE HERE.

Posted by Dan Markel on April 2, 2014 at 11:09 PM in Blogging, Criminal Law | Permalink | Comments (0) | TrackBack

Monday, March 10, 2014

Deadline Reminder for CrimProf Conference at Rutgers Newark July, 2014

Folks, just a reminder for those who are interested, the deadline for this conference that Carissa Hessick (Utah) and I are organizing is today-ish.

Here's the text of an email that we sent out to the CrimProf list-serv. Not everyone who is interested in this conference subscribes to that list-serv, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me ASAP. Thanks!

Dear Fellow CrimProfs: 

Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.

Our friends at Rutgers-Newark have kindly agreed to host.  The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd.  Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.

As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.

 

Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP. 

 

Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10.  Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu

  

To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:

(a)          The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;

(b)         Whether you are willing to serve as chair or discussant for another panel; and

(c)          Any date restrictions you have.  We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)

 

We hope that many and more of you will be able to join us.  And we hope that this conference will be the herald of many more summer crim gatherings in the future.

 

Best,

Carissa & Danny

 

Discounted Hotel Information:

Hilton Hotel = $149 per night

Contact person for the Hilton is Lucile Cox, her direct number is  973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

 

Robert Treat Best Western = $99 per night

Contact person for the Robert Treat, Mercedes, she can be reached at  973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

Guests should refer to Group#5529 when they reserve the room.

 

 

Posted by Dan Markel on March 10, 2014 at 10:56 AM in Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

Tuesday, February 25, 2014

A Post-Script on Samuel Sheinbein

I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein.  After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction.  Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)

For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned.  Here's a short version of what we argued on the Freakanomics Blog.

The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.  

Posted by Dan Markel on February 25, 2014 at 11:36 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel, Privilege or Punish | Permalink | Comments (7) | TrackBack

Wednesday, February 19, 2014

The myth of the trial penalty?

Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this one to the file. Almost every teacher of criminal procedure is aware of the idea of the "trial penalty," which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it's true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there's a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

Since this empirical stuff is far outside my bailiwick, I wonder if those who are in the know have a view about how Abrams' research intersects with the Anderson and Heaton study in the YLJ, which argued that public defenders get better results in murder cases than court appointed defense counsel, or Bellin's critique of that YLJ study here.  Anderson and Heaton basically argue that public defenders get better results because they get their clients to plea bargain more frequently than court appointed counsel and that explains the outcome. As I recall dimly, that conclusion may have been true for the murder cases but the study didn't purport to make the claim that PDs were better across the board and maybe that's consistent with Abrams' views too. It would be odd (wouldn't it?) if comparatively fewer murder cases involve a trial penalty while the many other cases do not and in fact show a trial discount. Granted, these studies took place in different cities, etc., so I am also wondering if the various studies can be reconciled. Thoughts?

Posted by Dan Markel on February 19, 2014 at 11:30 AM in Blogging, Criminal Law, Dan Markel, Legal Theory | Permalink | Comments (14) | TrackBack

Wednesday, February 05, 2014

The 5th Annual CrimProf Conference--Call for Papers

Here's the text of an email that the incomparable Professor Carissa Hessick and I sent out earlier today to the CrimProf list-serv. Not everyone who is interested in this conference subscribes, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me. Thanks!

Dear Fellow CrimProfs: 

Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.

Our friends at Rutgers-Newark have kindly agreed to host.  The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd.  Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.

As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.

 

Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP. 

 

Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10.  Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu

  

To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:

(a)          The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;

(b)         Whether you are willing to serve as chair or discussant for another panel; and

(c)          Any date restrictions you have.  We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)

 

We hope that many and more of you will be able to join us.  And we hope that this conference will be the herald of many more summer crim gatherings in the future.

 

Best,

Carissa & Danny

 

Discounted Hotel Information:

Hilton Hotel = $149 per night

Contact person for the Hilton is Lucile Cox, her direct number is  973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

 

Robert Treat Best Western = $99 per night

Contact person for the Robert Treat, Mercedes, she can be reached at  973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

Guests should refer to Group#5529 when they reserve the room.

 

 

Posted by Dan Markel on February 5, 2014 at 04:09 PM in Criminal Law, Life of Law Schools | Permalink | Comments (0) | TrackBack

Monday, January 13, 2014

A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory Colloquium

N.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.

This week marks the onset of classes for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.

Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:

February 25: Stuart Green (Rutgers) and Joshua Kleinfeld (Northwestern)

March 31: Amy Sepinwall (Wharton Legal Studies) and Alec Walen (Rutgers)

April 28: Corey Brettschneider (Brown/NYU) and Jennifer Daskal (American)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.

Posted by Dan Markel on January 13, 2014 at 04:44 PM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory | Permalink | Comments (9) | TrackBack

Friday, January 10, 2014

Consent Forms and Affirmative Disclosure

Thanks to Dan and the other prawfs for inviting me to return as a guest!  I promise to make up for a slow start with frequent posting for the rest of the month.

One thing I'd like to discuss during my visit is police officers' use of written forms to document consent to perform a suspicionless search.  Many civil liberties advocates have long touted the forms as a way of reducing police abuse -- for one example, see this 1999 ACLU press release advocating written consent forms as part of a suite of interventions designed to address racial profiling.  More recently, some have questioned whether the forms truly facilitate knowing and voluntary consent.

In an article coauthored with Kira Suyeishi (University of Denver '13), I looked at the ways that different jurisdictions use consent forms and the consequences of the use of such forms.  Among other things, we argue that when a defendent signs a consent form, reviewing courts tend to treat the form as dispositive of the consent issue, rather than conducting a more searching inquiry into voluntariness.

I'll talk about courts' treatment of consent forms in a future post.  Today, I want to focus on the front-end use of consent-to-search forms.  At the outset, one interesting issue relates to the range of consent forms currently in use.  Many forms, such as this one used in New Hampshire, simply describe the scope of the search and explain that signing the form constitutes voluntary agreement to the search.  Such forms basically track the Supreme Court's decision in Schneckloth v. Bustamonte, which held that consent must be voluntary, as determined from the totality of the circumstances, but that law enforcement officers are not affirmatively obligated to inform suspects of the right to refuse consent.

Other forms provide more information than is constitutionally required.  Schneckloth states that "knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent."  Yet forms used in Indiana, Maryland, and Ohio nonetheless explicitly state that the person has the right to refuse to consent to the search.  Still other forms, such as this one from Oregon, provide multilingual warnings, which, at least superficially, appear to ensure more information for non-native speakers of English.

The range of consent forms raises a few questions in my mind.  First, I wonder whether written forms that provide affirmative notice of the ability to decline consent have any effect on the rate of consent.  It's unclear that such warnings -- whether oral or written -- actually make any difference at all.  Consider the Miranda warning.  Although the conclusion is not unanimous, many studies have found that Miranda warnings make little difference in rates of confession -- indeed, one study even found that rates of confession actually increased -- and that these results hold true even when the warnings are communicated in writing rather than orally.  (See some of Richard Leo's work for a useful summary of the empirical literature, including his own considerable contributions.)

Perhaps the same is true of consent forms.  Anecdotally speaking, a police officer who visited one of my criminal procedure classes a few years ago said that he didn't think the form made a difference.  His experience was that if a suspect was willing to grant verbal consent -- and according to him, most are, even when they are guilty -- then the suspect would also almost always be willing to sign a form.  Some other police officers appear to hold similar beliefs.  This thread, for example, describes some techniques that police officers use to work around consent forms or even leverage them for their own benefit.

Secondly and relatedly, I wonder whether forms that provide people with non-constitutionally-required affirmative information about their right to refuse consent end up weighing against defendants at trial despite doing very little to empower the suspect to withhold consent.  Given that Schneckloth says that a suspect's knowledge of the right to refuse consent is a factor to be considered in determining whether consent is voluntary, we might speculate that a form that provides such information will almost automatically convince a judge that the consent is voluntary, even if the person in fact felt that he or she had no choice but to agree to the search and sign the form.  Similarly, a judge who would otherwise be concerned about whether a non-English-speaking suspect understood a situation well enough to consent voluntarily to a search might be persuaded by a multi-lingual form that the consent was indeed voluntary.

And finally, I wonder how the apparent generosity of the form in affirmatively disclosing the right to withhold consent affects public perception.  For example, do the forms engender a portrayal of law enforcement as (overly?) accommodating of suspects, while simultaneously obscuring the type of work-arounds discussed above?

Thoughts?  Reactions?  If any current or former law enforcement officers happen to be reading, I'd be particularly interested in your perspectives.

(Cross-posted on my nascent personal blog at nancyleong.com)

Posted by Nancy Leong on January 10, 2014 at 02:12 PM in Criminal Law | Permalink | Comments (8) | TrackBack

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

 

Cross-posted at Sentencing Law and Policy

Posted by Douglas A. Berman on January 6, 2014 at 01:03 PM in Criminal Law, Employment and Labor Law | Permalink | Comments (0) | TrackBack

Monday, December 02, 2013

Happy to be here!

Hi there Prawf readers,

As always, it is nice to return to the Prawfs fold.  As some of you may know, my interests lie in the intersection of criminal and corporate law.  I teach Criminal Law, Criminal Procedure, Corporations, and a White Collar Crime seminar.  I write about corporate compliance and what might generally be referred to as criminal law and economics.   Recently, I have become interested in the connection between fraud and two overlapping topics, "temporal inconsistency" and the study of "willpower lapses."  Over the years, several scholars, most notably Dan's colleague at FSU, Manuel Utset, have asked: what implications does temporal inconsistency have for criminal law enforcement and punishment?  How should our understanding of temporal inconsistency alter the mix of criminal and civil statutes, regulation and enforcement activity that we rely upon to reduce socially undesirable conduct? Recently, I along with several other scholars had the great opportunity to offer some thoughts on this topic in comments that the Virginia Journal of Criminal Law solicited for a volume featuring Utset's work.  After completing my own contribution, I decided to write a separate article exploring temporal inconsistency's implications for the corporation's internal compliance function. That paper, Confronting the Two Faces of Corporate Fraud, will appear in the Florida Law Review in early 2014.  I'll post and talk about the paper later this month. 

Meanwhile, in addition to writing my exam, winding down my classes (last week of teaching) and grading, I plan to blog this month on major developments in the white collar crime world.  To that end, it is impossible not to be fascinated by Michael Steinberg's insider trading trial, which seems to be moving along smoothly (at least from the prosecution's perspective) for now.  More on that tomorrow - I've got to head home now and light some candles.  Happy holidays! 

Posted by Miriam Baer on December 2, 2013 at 06:20 PM in Blogging, Corporate, Criminal Law | Permalink | Comments (0) | TrackBack

Friday, November 22, 2013

Making Law Sex Positive

It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.

But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.

The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.

Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.

Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.

Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.

Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.

But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.

Posted by Margo Kaplan on November 22, 2013 at 05:12 PM in Criminal Law, Culture, First Amendment, Legal Theory | Permalink | Comments (14) | TrackBack