PrawfsBlawg

Help Wanted: Clearing the Troubled Assets of the Penal State

I had to miss a criminal law careers panel at Berkeley Law today due to the ongoing influenza epidemic known as my home.  The panel had the intriguing title "Careers in Criminal Law: Beyond Defense & Prosecution."  I wanted to share a rough outline of what I would have said.  The prison crisis in states like California, and the ongoing over-investment of social resources toward mass incarceration in America that they show case, is one of the reasons it is so important to as what lies beyond the traditional careers in criminal law defense and prosecution.  For while the large urban public defender and district attorneys offices have been a mainstay of employment for graduates of American law schools since the war on crime began in the late '60s, the long war may be winding down(at least in growth terms).  But this does not necessarily mean the need for fewer lawyers, but perhaps different kinds of lawyering.  For while defenders as much as prosecutors have made their bread by helping to manage the processing of citizens into prisoners, the present/future offers lots of opportunities for those lawyers who can figure out how to reverse the process.

The present fiscal and legal crises around prison populations is making it easier then ever to monetize gains from reducing the enormous "legacy" costs that now afflict the state from their commitments to warehousing large categories of criminal offenders, with little built in capacity to assess risk and reduce the overincarceration of the undangerous.  Because a great many of these arise not simply from criminal opportunities but from the operation of an extended system of governing through crime that runs well beyond the criminal law system into areas as diverse as mental health law, education law, and employment law, lawyers have real advantages in this emerging market (especially if they have, or can partner with people who have criminological skills, therapuetic skills, empirical skills, etc. 

I'm not saying these jobs are waiting  in a binder in the career center.  Mostly they will have to be invented, one law graduate at a time, perhaps with some help from foundations and law schools.  Here are a few general areas where there is lots of action:

Justice Reinvestment: Once you track how much money the state is spending incarcerating the troubled population of certain extremely disadvantaged neighborhoods (and in every state there are a few such neighborhoods that account for a grotesque portion of the whole carceral population) you can calculate how much the state is spending to incarcerate their way to public safety and order in those neighborhoods.  Sociologists have come to recognize and document that these areas are almost invariably denuded of non-criminal sources of social order making, and have few resources to address the predictable demand for mental health, drug treatment, job training, and housing assistance in that neighborhood.  Finding ways to frontload the investment in such non-criminal social control, while capturing the gains from reductions in incarceration costs that will follow successful implementation is the key.  The heavy role of medical costs in driving carceral expenditures may be very important here, especially if Congress manages to create a wider entitlement to health care for Americans in poverty.

Parolees and Recidivism: The low lying fruit here, at least in states like California, are parolees whose path back to prison is generally a greased slide, and for whom the social value of incarceraiton is almost certainly a bad deal all around.  The excellent settlement of the Valdivia case here in California (now under attack again) provides one clear example.  By giving every parolee under revocation a lawyer (rather than undertaking costly screening) and organizing the calendaring for efficiency, the Valdivia consent decree created a market where lawyers can make a living reducing the flow of parolees back to prison, helping the state reduce its population and almost certainly saving money.  We need more creative uses of litigation to create more effective lawyer roles in the parole process.  The time is ripe for something similar for lifers in prison who are costing the state money as they age and, and in many cases, posing next zero risk to public safety.    

Schools to Jail: Research by sociologist Bruce Western and his collaborators documents that youg minority males who do not finish high school experience witheringly high rates of imprisonment by the time they are 30 (close to 2/3rds).  Can lawyers find ways to keep minority males in school?  Since school discipline and aggressive policing, as well as gang activity itself, are all factors driving such kids out of school, lawyers would seem to have lots of ways of intervening (getting paid, not so obvious).

Mental Health: Huge numbers of people move in and out of jail and prison because we have foreswarn the traditional practices of confining the untreated mentally ill, but have failed to generate effective community alternatives.  Finding some way to reinvent our civil governance of the mentally ill will need lots of lawyering (lots of doctoring too no doubt). 

Reinventing public defender and district attorney offices: Prosecutors have huge opportunities to rationalize social costs by being more selective in deciding who qualifies for a sentence in the "big house" as opposed to lower cost alternatives like fines, probation, and jail.  In exercising more judgment, they need defenders who can make a case pre-trial for their client's "good" risk profile and "promising" non-prison plan, as much as they might focus on weaknesses in the evidence or police conduct.  Innovators in traditional defender and prosecutor offices can also play a key role in addressing all the issues above.

The Social Costs of Juries

Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box.  Some excerpts and reactions after the jump.

As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year.  Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee.  "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."

... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.

I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?

School crime prevention strategies show the difference between governing crime and governing through crime

Two excellent recent features in the NYTimes show case the subtle but important difference between what I call "governing crime," serious efforts to address real crime risks within one's actual domain, and "governing through crime," what amount to, at best, reactive responses to fear of crime that have little actual purchase on the actual risks within one's domain.  Last week Susan Saulny reported on the innovative new strategy being deployed by new Chicago public school's chief Ron Huberman (himself a former cop as well as transit official). Violence is a real threat in at least some Chicago schools, with three deaths this year and over 500 shootings in the past several.  In response, Huberman is reversing the usual focus on excluionary and punitive responses to those at risk of violent behavior, and instead focusing on the 10,000 students most at risk of being victims of violence (they turn out to be largely the same people anyway), targetting them with programming to keep them in school and less exposed to violence.  In Sunday's Times, Ian Urbina reported on the bizarre and sensless "zero tolerance" regime that has flourished in schools across the country in response to Columbine and other spectacular but episodic incidents of school violence.

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger.  As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission.  But if Arnold wants to go out as an action hero he can still lead.  As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation.  He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole.  With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release.  The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA
2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge.  The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision.  I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them).  How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite"  in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story of Roman Polanski’s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears.  Enjoy what is certain  to be months of coverage with attention to a few ironies from the golden penal state.  Specifically:

(1)  Polanski is himself the chief victim of the most celebrated/transfixing crime in California (arguably US history); the 1969 murders of his wife, actress Sharon Tate, and his nearly born son (she was within weeks of delivery), and four others (three of them close personal friends), by cohorts of psycho-killer-guru Charles Manson.  I argued in a post earlier this summer that the Manson killings and subsequent trial, which transfixed the state and nation for weeks during that pivotal year, helped to reset California’s politics to the kind of “leave no prisoner behind” liberal/conservative consensus we have on tough punishment that has dominated the state ever since.  (I’m continuing to gather evidence that is so far generally supportive of that claim and hope to have a short paper up later this fall).  As a victim of a sexually tinged murder of his wife and child, Polanski is a “super-citizen” of the Republic of California (see, chapter 3 of Governing through Crime), viewed as an eternally recurring victim, suffering ever renewed damage by the memories of his savage loss as each Manson family prisoner comes up for a parole hearing, and accorded a growing set of specific rights in our constitution.  However, as a fugitive from a child sex abuse crime he is at least presumptively guilty of (having pled guilty and fled) he finds himself on the other side of that coin, accorded no element of human empathy by the state or its leaders, protected only by the increasingly shrinking set of federal constitutional rights accorded defendants and prisoners.  Polanski’s best defense is that the murder of Sharon Tate made him do it.  California voters recently enshrined victim rights in the Constitution in a voter initiative that compared the victim experience of parole hearings for murderers to being tortured.

(2)  If Polanski’s international supporters are surprised at California’s endurance on this issue they should not be.  California’s willingness to prosecute crimes to the fullest possible extent of the law was soberly marked last week with the death in prison of Susan Atkins, the “Manson girl” who stabbed Polanski’s wife and son to death whose death from brain cancer came after almost forty years in prison (read her LA Times obit).  Atkins, the longest serving woman in California history (but we’ve got a lot of history to make) was recently denied parole for the umpteenth time, being found a potential risk to Californians despite meeting the board in a hospital gurney (her leg was amputated as part of cancer treatment) with a prognosis of only months to live. 

(3)  Although I haven’t checked the sentencing range for the count of unlawful sex with a minor in 1977, it is almost certainly far lower than it would be today.  California’s new Determinate Sentence Law had just come into effect and the new fixed ranges (based on statistical norms for the indeterminate sentencing practice) were incredibly short by contemporary standards.  In the decade following Polanski’s flight, public concern about child sex abuse would mushroom into far ranging prosecutions of day care workers and others for lurid and implausible (and unlike Polanski’s reported assault, largely fabricated) crimes in which scores of people were sentenced to decades in prison (some of them now released and exonerated).

(4)  America’s penal state makes big city prosecutors potential political stars as crime fighting heroes, but also exposes them to the full fury of the vengeful public when their choices do not line up with the "maxi-max" principle (the maximum punishment for the maximum number of  people).  LA prosecutor Steve Cooley is notoriously “left” of the law enforcement consensus on issues like three strikes, drug treatment not incarceration, and the death penalty.  Precisely because of that he probably felt vulnerable to any accusation that he was being soft on a Hollywood criminal fugitive charged with sexually assaulting a minor, whose supporters continued to make law enforcement, and prosecutors specifically, the bad guys.

Workplace Violence? Making Sense of Annie Le's Murder

Am I the only one that was bothered by the effort of the New Haven Police Chief to make sure we didn't think the murder of Annie Le had anything to do with either New Haven or Yale?  In their coverage in the New York Times Javier Hernandez and Serge Kovaleski write:

Chief James Lewis of the New Haven police would not speak about a possible motive, but said, “It is important to note that this is not about urban crime, university crime, domestic crime, but an issue of workplace violence, which is becoming a growing concern around the country.”

In a statement,Richard C. Levin, the Yale president, said the supervisor “reports that nothing in the history of his employment at the university gave an indication that his involvement in such a crime might be possible.

Urban crime?  Last time I checked New Haven counted as a city (maybe not a major city).  Does this just mean that the accused, Raymond Clark, happens to be white?  He was after all otherwise a local.  University crime? I'm not sure what that is meant to include except perhaps political violence like the 1969 bombing of a research lab in Wisconsin, or more recent violence by animal rights militants.  Domestic crime?  Ok, there is no hint that Annie Le had any kind of relationship with Raymond Clark.  But where does the Chief get off hinting darkly that there is a growing problem of "workplace" crime?

It is true that people spend a lot of time at work, so its not surprising that they are sometimes victims of crime there.  That is particularly true of domestic violence.  When partners separate, work may be the easiest place for the abusive partner to arrange a confrontation.  Many workplaces, like retail stores, are targets for robberies.  Here's a copy [Download Workplace Violence] of the federal government's last published report on workplace violence.  Published in 2001 and reviewing data from 1993 through 1999, the report shows violence in the workplace going down along with violence generally in America in those years.  In 1999 there were a little over 600 workplace homicides out of more than 15 thousand nationwide. Perhaps there is a new trend emerging in more recent data that the Chief is aware of.  Otherwise it is irresponsible to suggest that workplaces are a place that would benefit from even more fear of crime than Americans generally already feel.

As for the university, like many employers they have already invested in crime background checks, and apparently closed circuit video taping around its animal labs (probably to combat animal rights activists).  College or university teachers already enjoy the lowest level of  occupational violence of any studied group (as of 2001) at only 2 incidents per 1,000 teachers. 

I'm no expert on criminal motivation.  She was a petite and beautiful young woman.  He was a physically powerful and apparently heterosexual young man.  We may never know more than that.  Let us accept grief at a promising life brutally ended, and some gratitude at the prospect of legal justice thanks to what appears to have been an effective investigation (although some questions about crime scene management have emerged). Let us not seek to invest even more of our life-world with the apparatus of crime control in the pursuit of a level of perfect security that does not exist.

Wishing all of you a happy new year (on the Jewish calendar, 5770)

When the Messenger Shoots Himself

Ok, I've been a one trick pony this summer, but come on, two years (20 months in real) in the slammer for former NY Giant Plaxico Burress in a plea bargain with NY prosecutors announced yesterday (read John Eligon's reporting in the NYTimes).  Burress carried a concealed weapon into a New York city nightclub, with the knowledge of the club's security personnel, but in violation of NY law (it would have been legal in Florida where Burress lives most of the year had he not allowed his concealed carry license to lapse).  Burress threatened know one intentionally, but the 40 caliber Glock slipped from his wasteband, inside his pants, and went off as he tried to grab it, wounding himself in the leg and narrowly missing a security guard. Burress could have faced a mandatory 3.5 year sentence for the illegal gun possession.  Prosecutors allowed him to plead to a lesser charge of attempted possession, but refused to consider less than 20 months of incarceration.  What public interest is served by sending the 32 year old father of two to prison for most of two years?

I'm not arguing Burress should be excused.  I'd prefer to live in a state like New York where carrying concealed weapons into bars is never permitted, but it is troubling that conduct legal in one state, warrants mandatory imprisonment for more than three years in another.  I appreciate that stars like Burress and Michael Vick make ideal platforms for deterrence signals.  But in this case Burress is a walking (lucky for him) advertisement for why carrying a weapon concealed in your pants is a bad idea.  The NFL star who helped the Giants win the 2008 Super Bowl had no criminal record, and poses no obvious risk of being a repeated risk to public safety.  In the meantime the state of New York will spending tens of thousands of dollars for each of the next two years to lock up Burress, while his young child and expected baby will lose their father.

Perhaps I'm giving too little weight to the deterrence argument.  From my reading of the literature, I'm willing to concede that tough laws on guns have helped New York drive down crime.  But where did we get 3.5 or even 2 years in prison from?  Would not putting Burress in jail for even a month or two, demonstrating that no one is above the law, fining him (on top of the loss at least temporarily of his NFL salary) have sent a message?  Considering again that for most of the word 10 to 20 years is the punishment for murder, these are harsh punishments for crimes in which no harmful injury nor intent to injure has been alleged.

It is tempting to blame this on racism.  After all, Michael Vick and Plaxio Burress are large black men who physically assault other men for a living.  Like prize-fighter Jack Johnson in his time, are these "scary" successful black men targets of racial animus?

I see it more as a misguided product of our social consensus on harsh punishment for violent crime.  Liberals and conservatives share consensus that violent crime deserves and requires lengthy imprisonment.  They disagree about the relationship between guns and violence; but they agree that gun crimes should be harshly punished.  The product is extremely harsh punishment for a man whose only act of violence has been to himself.

Risinger vs Allen-Laudan

As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)

I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I  floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.

 I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some  aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment.  Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note:  I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.

Final Version of Executing Retributivism is Now Available

Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009)). Oddly, the Nw U LR has a policy of not using/permitting abstracts, which I found befuddling, since I think abstracts are pretty important, and they didn't have a really good reason for not permitting abstracts, other than consistency with the past and not wanting to irritate other authors who had asked and been denied earlier -- talk about the costs of transition rules! That said, my experience with the NW editing team was truly outstanding, and I commend their EIC Dave Baltmanis and all the other excellent editors who helped me whip this into shape, even as some were prepping for the bar...

Here's the abstract, which I took from an earlier draft.  Again, the final version is available here.

In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.

Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.

Federal Court Orders California to Reduce Its Prison Population to 110K

In a historic ruling certain to move quickly to the Supreme Court, the 3 Judge court of the Northern and Eastern districts of California, operating under the Prison Litigation Reform Act in the consolidated cases of Coleman v. Schwarzenegger (NO. CIV S-90-0520 LKK JFM P) and Plata v. Schwarzenegger (NO. C01-1351 TEH ), has found that only substantial reductions in the present prison population can allow remedies in the underlying cases (involving health care and mental health) to move forward.  Stating that a reduction to 130 percent of design capacity (currently at about 200 percent) was reasonable, the court nonetheless settled on 137 percent as in keeping with the PLRA's demands for least intrusive remedies.  That means a reduction of approximately 45,000 inmates.  I will post a lengthier analysis when I can get through the 184 page opinion.

Here is the opinion:
Download Opinion&Order

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?

Two Cheers for COPS

Behind the scenes both the Obama Administration and Police Unions must have winced over last weekend as Gates-gate (as Thomas Frank among others dubs it) built, knowing that Tuesday would be "police day" in the national recovery program, with Vice President Biden and AG Holder headlining the roll-out (AP Coverage) of 1 Billion in "stimulus" funding for cities to hire or not-lay off police officers.  It got a fair amount of attention from Bay Area media yesterday afternoon highlighting 50 new police for Oakland and San Francisco each (along with smaller numbers for Richmond and a few other cities).  Why two cheers?  Bay Area cities, especially Oakland, are under staffed given their relatively low densities and spread out geographies.  Any hope of NYC like police led reductions in crime would require very substantial increases in the size of the force (as well as better utlization than has been the record).  Compared to prisons where all but the most ideologically commited to mass imprisonment would agree that we are maxed out on useful expansion, more effective policing looks to have lots of potential gain left at least in the Bay Area.  Compared to heavy fixed capital prison costs, police spending is potentially very flexible, and with imaginative leadership can been deployed to address a wide variety of community needs.  But it would have been even better if the money had gone to counties with the mandate that they spend it to improve public safety by hiring needed personnell or services, while lettting counties decide whether more police officers are as crucial as more juvenile probation officers, more drug treatment openings, or more mental health workers, etc.

Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?

This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation.  The majority (Judges Tatel and Garland) answers this question in the affirmative, reasoning that the plain language of 18 U.S.C. 3582(a) compels such a conclusion. 

But whatever the merits of their (persuasive) analysis, what makes this case interesting (at least to me) is that the court finds that the district court's error (in concluding to the contrary) was "plain," even though, as the majority points out, there is a circuit split on the question. As Judge Henderson objects in her dissent, "Whoever has the better reading [of the statute], courts have read it differently—and with conflicting results—which manifests, at least to me, that any court that has read it erroneously has not done so plainly."

Is Judge Henderson right that it is generally inappropriate, on plain error review, to find such "plain" error where the district court relied on precedent from several circuits? Or, to the contrary, is it refreshingly honest for one circuit court to admit, however implicitly, that its sister circuits are sometimes "plainly" wrong? I tend toward the latter view (after all, precedent should never be followed blindly), but think this is a fascinating issue that may well warrant further discussion.

President Obama and the Paradoxes of Police Power

The  end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper).  It has already been one about the national importance of police power since the "war on crime."

First, the idea tha President Obama erred by making a "neighborhood story" into a "national" one is wrong historically.  Policing the neighborhood has been a national issue since the mid-1960s.  Every president since LBJ has posed as frequently as possible with large phalanxes of uniformed local police.  The politicians who have most sought public police support, including Bill Clinton, George W. Bush, and Rudolph Guliani, have all reaped national benefits.  If President Obama did something different it was varying from the tone of reverential solemnity and adoration in describing the "boys in blue".  I will leave it to our linguists to parce whether the President's use of the phrase "stupid" was a mistake that opened the door to class conflicts,  I suspect that no matter how carefully he had crafted his message, anything recognizably critical would have been met by the kind of response it has.  The first paradox than is that police operate locally but since the "war on crime" became a national crusade, police have become what the military is in foreign wars, a sacralized  metaphor for the national public itself.  Sgt. Crowley, once surrounded by the national police community and the deeply ingrained media love affair with the police (anchors are almost as eager as politicians to pose with them), is actually the equal of President Obama in stature. (more paradoxes after the fold)

It wasn't always so.  At mid-20th century the police were viewed as an emblem of the corruptness and incompetence of local government in general as any Raymond Chandler novel (or film based thereon) will attest.   Pre-"war on crime" local police were arrayed against a set of locally based "illegalities" that had more or  less support in the community.  What changed was not improvements and reform in policing (although that has happened) but a national war on crime that made them front line soldiers against the uniformly perfidious enemies of "crime," "disorder," and now "terror."  Yet even as they have become the chief public face of the war on crime and a symbol of national citizenship itself, police have found themselves on the losing end of the resource explosion in crime control.   I would suspect it is mainly a level of governmet problem.  Prisons are controlled by state governments which have many more revenue and spending options, as well as a much stronger presence before national government in Washington D.C. than cities and counties do. This is the second paradox.  While prison systems have grown 3,4, or 5 times the size they were in the 70s, most police depatments have hardly grown (my colleague Justin McCrary is now exploring the extent and determinants of this disparity) and they therefore lack the resources to do the job they are constantly touted for dying bravely in the name of. 

That police became a national symbol of citizenship in the 1960s has only deepened the injury created by the undeniable gulf in the way black (and largely latino) communities experience policing (Charles Blow summarizes some of the elements in his NYT column today) .  The antagonism between police and minority communities (especially black communities) is as old as European settlement and slavery in the Americas.  As Berkeley English Professor Bryan Wagner shows in a fascinating article  about police politics in antebellum New Orleans [Disarmed and Dangerous: The Strange Career of Bras-Coupé, Representations No. 92, Fall 2005, the article may require access codes or fees to view], the black man outside the control of slavery is the constitutive image of the threat against which police power was defined and justified.  Black men (and to some degree women and other men of color) find themselves presumptively viewed  as disorderly and must perform docility in order to reassure police [Juan Williams gave a stunningly unself-conscious description of how he personally gives this kind of performance as he criticized President Obama for failing to perform it, in a discussion on Weekend Edition Saturday, this morning).  While police departments have gone a long way toward institutionalizing racial sensitivity, including Cambridge where Sgt. Crowley was a trainer on race issues, they cannot erase this ontological link, a problem that has only been exaccerbated by their ascendance to a national symbol of consensus. This is the third paradox. Just as black and latino citizens were getting their citizenship recognized in law in the 1960s, their most historically problematic adversary, the police, were becoming the standard bearer for that national citizenship.

But while the police officer symbolically represents the  nation, the police view themselves as a "band of brothers" (quoted in Michael Wilson and Solomon Moore's story on police citizen encounters in today's NYTimes) sworn to protect each other over any other citizen or the public in general when that comes into conflict.  Moreover, most citizens of any color who deal with the business end of policing in the streets comes to understand this perfectly well.  This is my final paradox.  The public and political adoration of the police coexists uneasily with the fact that this powerful armed society within a society exercises huge and mostly unreviewable power over all Americans as individuals.

For all these reasons it would take an Obama to make this a truly teachable moment for America.  But it would have to be a 45 minute "moment" and not a quip at the end of a press conference.  Is this the right time for that moment nationally?  Probably not.

Memo to the bond market

Ok, I know nothing about bonds (its basically a loan, right?), but I have watched California prisons grow steadily over the second half of my now 50 years.  While it  looks certain that the California legislature will pass, and the governor sign, the complex budget compromise (read the SFChron coverage), if I were loaning money to the state on the basis of there budgetary projections, I would start worrying now.  Specifically, 1.2 billion in savings in the fiscal year is promised from cuts to the Department of Corrections and Rehabilitation.  Republicans initially balked at voting for the overall package if it included the corrections cuts which assumed prisoner populations reductions (the dreaded early release).  They compromised at voting for the 1.2 billion cut without any specification as to how it would be obtained.  That will leave the Democratic majority free to enact specific prison policy shifts on a majority vote (rather than the 2/3 constitutionally required for budget resolutions) and the governor, theoretically willing to sign it.  But the Republicans have promised a major debate against "early release" backed by law enforcement and the correctional officer's union.  It is quiet possible that enough Democrats will defect or that Schwarzenegger will decide not to sign the bills that emerge.  More importantly, for any promise of long term sustained correctional cuts to be believable, you need to see the magic words "sentencing commission" in any package of correctional policy changes.  Short of that, do not loan us money withoug "juice loan" premiums.

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

By STEPHEN J. DUBNER

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Sentencing Discounts for Parents? A Guest Post

By STEPHEN J. DUBNER

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas’s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”

The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Sheila B. Scheuerman on Markel's "Retributive Damages"

Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence.  Hmmm.  

After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!

Beazer Homes and the skewed signals of deferred prosecution agreements

Floyd Norris has an article in the New York Times today criticizing the Deferred Prosecution Agreement that the Department of Justice recently announced between Beazer Homes and the United States Attorney for the Western District of North Carolina.

According to the Information filed by the government, Beazer Homes engaged in a number of accounting frauds, which of course hurt home buyers and shareholders alike. Norris states that he has "no reason to believe" that Beazer's CEO "understood the crimes the company was committing" and then suggests toward the end of the article that the Deferred Prosecution Agreement sends the wrong message to corporate  boards and officers insofar as the settlement of the case leaves intact the positions held by Beazer's CEO and Board of Directors, all of whom apparently failed to detect and prevent the fraud.

The article demonstrates the problems that arise when we prosecute corporate entities.  For a number of reasons that I outline in this paper, we don't really want to indict and convict corporate entities because the collateral costs of indictment are too high and affects too many innocent parties.  So, we offer the companies Deferred Prosecution Agreements, which require the companies to make restitution and remedy the internal problems in the company that led to the problem in the first place.

Deferred Prosecution Agreements (DPA's) send fuzzy, mixed signals.  The mere presence of a settlement agreement (and often the press releases accompanying the agreement) suggests that the company's management has done something "good" while the presence of a criminal charge and investigation suggests that the company has done something deeply harmful and morally repugnant.  Even worse, since the agreement is often reached prior to an indictment, the public is privy to only the broad outlines of what happened and how various factors drove the government's decision-making.  As a result, it is not surprising that DPA's leave a bad taste in everyone's mouth.

You can also see how corporate criminal liability inevitably morphs into an often simplistic and not very helpful discussion about corporate governance.  Should Beazer Homes' CEO be fired and its directors voted off the board? Maybe. Were I a shareholder, I probably would say it depends.  On one hand, I would be pretty steamed that management and the board failed to catch the fraud.  I would probably ask what the heck happened to the company's internal controls and internal compliance program (not to mention the company's auditor and Audit Committee).  I would scream and holler about the CEO's executive compensation.  And maybe, like Larry Ribstein did two years ago, I might start to wonder if SOX-mandated compliance systems had failed to live up to their billing. 

But I probably would be forward-thinking too - analyzing whether I thought the CEO and Board members were best positioned to help the company emerge from this mess and considering whether I thought management had built a decent relationship with the government in the meantime.  I would want to hear what the CEO had to say about how he planned to change the company and how he thought the company could survive in the current market.

In sum, I would be weighing options and considering carefully what was best for the company and my investment.

But that above answer is not very satisfying if you are coming from the "throw the bums out and punish them" camp.  And if you approach a corporate governance problem with a criminal law frame, emotions like anger quickly crowd out more cautious, introspective responses.  That's the problem with corporate criminal liability and Deferred Prosecution Agreements.  The mere presence of a criminal case suggests that People Did Very Bad Things and that a good dose of punishment is in order.  But it's hard to punish companies without punishing a lot of people who had nothing to do with the Very Bad Things, and tossing CEO's out of their jobs for failing to prevent Prior Bad Things does not at all guarantee that their successors will prevent Future Bad Things.  For a prime example of that, see AIG.        

Future Dangerousness and Burdens of Proof

I have been thinking recently about the role of punishment in preventing future crime.  Criminal law theorists tend to express unease with the idea of punishing behavior that creates only a risk of harm rather than a harm itself (think drunk driving laws or laws prohibiting felons from owning firearms).  Presumably out of some fealty to the harm principle, academics look to articulate rules limiting the criminalization and punishment of behavior that is risky but not harmful.  (For example, Antony Duffand Douglas Husakhave written extensively on this subject.)  And of those who are presently writing in the area of criminal law and sentencing, you rarely see an academic take the position that we should make punishment decisions based on incapacitation, i.e., to keep those who are more likely to reoffend in jail for longer.  (Christopher Slobogin’s writings on preventative detention could arguably be an exception).

But the desire to punish based on risk seems to be a dominant theme in the public discussion on crime.  Penalties for drunk driving, though of a relatively recent vintage, seem to enjoy significant support and have increased dramatically in some states.  Each time I have taught the Atwater case in my criminal procedure class, I have at least one student say that imprisonment is an appropriate punishment for a mother who neglects to put a seatbelt on her child.  It has been well-documented that California’s Three Strike’s Lawwas enacted, in part, based on the story that Polly Klaas would not have been murdered if her killer, who had a long criminal history, has served the entire sentence for his most recent crimes.  And, of course, who can forget Willie Horton.  While academics struggle with the idea that someone might be punished (or be punished more) based on the idea of future dangerousness, the public debate seems to coalesce around the idea that once someone has broken the law, the state has an obligation to ensure that individual does not harm anyone else.

One interesting manifestation of the future dangerousness issue is the burden of proof question.  The academics who oppose incapacitation often complain that we have insufficient data to accurately predict who will reoffend and who will not.  Even the most reliable models for recidivism inevitably result in some false positives.  But public opinion seems to take a different view.  This burden of proof conflict has recently appeared in the debate about punishment for possessing child pornography.  In June the ABA Journal published an article by Mark Hansenthat criticized the severity of Federal Sentencing Guidelines for child pornography offenses.  One of the criticisms Hansen raised was that possessors of child pornography were receiving extremely long sentences even though they didn’t pose a threat of physical harm to children (meaning that possessers were unlikely to sexually abuse a child).  In support of his argument, Hansen noted: “There is no published research on the odds that viewers of child pornography will actually assault a child.”  A recently published response to Hansen’s article by DOJ’s Assistant Deputy Chief of the Child Exploitation and Obscenity Section defended the Guidelines, stating that possessing child pornography is a “legitimate cause for concern” and that because there is no “definitive information” regarding whether a child pornography offender poses a physical threat to a child, defendants’ protests that they are not a threat are nothing more than a “self-serving argument."

If there is no data on the risk posed by an offender or a group of offenders, what should be done?  Concerns about public safety – especially the safety of children — seem to find far more purchase in the public debate than more abstract concerns about harm versus risk.  But the academic in me worries that the rhetoric in favor of tough sentencing to promote safety may be too effective.  As UNC’s Joseph Kennedy recently said:  “Future dangerousness is too dangerous as a sole basis for incarceration because it appeals too directly to our deepest, strongest, and potentially most violent instinct — self preservation."

Concerns about safety seem to be one of the major catalysts behind recent legislative sentencing increases for possession of child pornography.  And as I am currently writing on those increases, I imagine that the issue of future dangerousness will occupy me for much of the rest of the summer.

Haberman et al on Madoff

Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009
NYC
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”

“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”

Nice to visit

Happy July, everyone.  Thanks to Bernie Madoff, it's been an interesting week for those of us who think about white-collar crime.  I can't possibly add to Jayne Barnard's play-by-play account of Bernard Madoff's sentencing proceeding, but I do have my own thoughts about the supposed deterrent value of his150 year term of imprisonment.

Madoff's attorney, Ike Sorkin, had previously argued for a sentence of 12 years' imprisonment, which Sorkin contended constituted Madoff's life expectancy (Madoff is 71 years old) minus one year. (Sorkin was using data drawn from the Social Security Administration).  Even assuming Sorkin's prediction of how long Madoff would live is correct, the problem with life expectancy sentences is that they lack expressive value. We tend to use prison sentences as a shorthand for moral culpability and societal disgust. "Expectancy" based sentences, calibrated to the particular defendant's circumstances, undermine our ability to rely on those shorthands.  And for a guy like Madoff, "12 years" sounds awfully tame. 

Moreover, as Doug Berman explained, even if Judge Denny Chin had sentenced Madoff to something like 20 years' imprisonment (which presumably would have lasted the remainder of Madoff's life), it would have set a new ceiling for future white collar sentences.  Defendants who caused merely hundreds of millions of dollars in fraud losses (rather than Madoff's billions) would have been able to argue that they should receive significantly lower terms of imprisonment.  I'm not sure this is right - if Chin explicitly had said that the 20 years' was intended to exceed Madoff's life expectancy, government prosecutors would have been able to reject later attempts to use the "20" as a ceiling or anchor for sentencing.  Nevertheless, you can see the problem with life-expectancy sentences: they can be easily manipulated by later defendants who seek to make false comparisons.

At the same time, I don't think Judge Chin's 150 year sentence raised the ceiling all that much for "typical" white collar or corporate fraudsters.  150 years is a fanciful number, and Madoff's fraud is an outrageous, once-in-a-lifetime (one hopes) case.  Madoff's sentence may therefore be seen by most future courts as simply an outlier, only to be mentioned in passing, whereas 20-25 year terms of imprisonment will continue to remain the standard "frame" with which sentencing courts approach large-scale criminal frauds. 

Sentence Explanations . . . and South Park

I have a new paper on SSRN entitled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences."  As I observed in an earlier post, I've become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences.  My forthcoming article in the Florida State Law Review focuses on "explanation review" in the federal system.  The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.  As I see it, the fundamental vice of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  The fundamental vice of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines; it is enough if judges expressly invoke the purposes of punishment in explaining their sentences.  My proposal seeks to promote engagement with both guidelines and purposes.

As a bonus, this is my first paper with a South Park reference.  I actually cribbed from my own teaching notes from Sentencing, where I have used an analogy to the Underpants Gnomes to good effect in teaching the leading Wisconsin case on explanation review, State v. Gallion.  (The basic idea is this: much as the Gnomes do not explain how they will convert underpants into profits, the Wisconson Supreme Court does not explain how to convert the generic purposes of punishment into a meaningful sentence explanation -- even though the Supreme Court requires all Wisconsin sentences to be explained by reference to the generic purposes.)  Based on my experience in teaching Gallion, I would heartily recommend the use of South Park references in law teaching.  Perhaps others would like to suggest additional episodes that lend themselves well to the law school classroom.

In any event, the abstract of the new paper appears after the jump. 

For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves. The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such "explanation review" is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts' failure to appreciate what may be achieved through rigorous explanation review.

Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.

Thoughts on Yeager: Role of Appellate Judges, Special Verdicts, and the Meaning of a Hung Jury

Last week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel rule, which precludes relitigation of issues previously found in the defendant's favor, and the hung jury rule, which permits relitigation of charges as to which a jury does not reach agreement.  Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager's alleged fraud was that he knowingly participated in making false, overly optimistic statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager's view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government's insider trading theory would also collapse.  In the government's view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government's view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury's treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

First, the Court limited its analysis to the purely legal question of whether a logical inconsistency between acquitting on some counts and hanging on others necessarily denies the acquittal of preclusive effect.  The Court thus declined the government's invitation to reexamine the Fifth Circuit's holding on what exactly the jury decided in its acquittal; the Court simply accepted as its starting premise that the jury acquitted Yeager because the government did not prove he knew the statements at issue were false.  "We decline," as the majority opinion put it, "to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to resolution of the narrow legal question we granted certiorari to resolve." 

The majority's cavalier treatment of the factual question provoked a concurrence from Justice Kennedy.  It also brought to my mind some of the discussion at the Criminal Appeals Conference here earlier this week about the disengagement of appellate judges from basic error-correction functions.  Paul Carrington, in particular, criticized the apparent preoccupation of appellate courts with law-making, to the detriment of other endeavors that may seem less exalted to judges, but are still vitally important to litigants.  As I understand it, Carrington was really speaking of the intermediate federal appellate courts, but I wonder if similar arguments might fairly be extended to the Supreme Court.  Althought the Justices do occupy a different position in the federal court system, the lower-court judges may still take their cues from the Justices in deciding how to value different judicial activites. 

Second, the factual issue the Court declined to grapple with would have been easy to decide if the jury had been given a special verdict form and required to state what it found with respect to the different elements of the charged offenses.  I've never understood why special verdict forms are not used more frequently.  Yes, they make the jury's job more complicated.  But, in addition to helping sort out Double Jeopardy issues after the fact, they would also force the jury to pay closer attention to each element, thus reducing the likelihood of logical inconsistencies in the outcome.  When I served on a civil jury a few years ago - yes, a law professor was inexplicably permitted to serve on a jury! - we used a special verdict form that required an express decision on each element.  During the deliberations, it became clear that several jurors were prepared at the outset to render a quick plaintiff's verdict, but working through the elements one at a time caused these jurors to focus on weaknesses in the plaintiff's case they had not appreciated at first.  Without the discipline imposed by a special verdict form, I doubt these jurors would have been brought around to see these problems.

Third, I was struck by Yeager's complete discounting of the significance of hung counts: "Hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. . . . [T]he fact that a jury hangs is evidence of nothing -- other than, of course, that it has failed to decide anything" (14).  As Justice Scalia observes in his dissent, this seems a considerable overstatement.  A hung jury is surely "evidence" of something: it means that at least one juror concluded the government satisfied its burden of proof and that at least one juror concluded the contrary, and it supports an inference that the case is sufficiently close that reasonable minds may differ on whether the defendant ought to be convicted. 

Moreover, Yeager's reasoning on this score may prove too much.  The majority put it this way:

A host of reasons -- sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few -- could work alone or in tandem to cause a jury to hang.  To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.  But that is not reasoned analysis; it is guesswork.

Yet, much the same could be said about acquittals.  We don't really know, for instance, whether Yeager's acquittal was a result of confusion, compromise, exhaustion, or nullification.  Ashe v. Swenson assumes a careful rationality behind jury decisions -- an assumption that is not well supported, as I understand it, by the research on jury decisionmaking. I would think the assumption especially dubious in a complicated financial fraud case like Yeager, in which the trial lasted 13 weeks, and the jury had to wade through no fewer than 165 counts.

The majority was trying to show that acquitting intrinsically carries more meaning than hanging in order to reconcile the collateral estoppel rule with the hung jury rule.  The dissenters downplayed the distinction in order to limit the reach of the collateral estoppel rule; indeed, they made clear they thought Ashe to have been wrongly decided.  But seeing the meaning of an acquittal as no less mysterious than that of a hung jury might instead lead to the opposite conclusion: instead of Ashe, we could toss the hung jury rule overboard, precluding retrial of hung counts across the board.  After all, it is only a matter of convention that we see an acquittal as a loss for the government and the hung jury as something else; in either scenario, the government has failed to carry its burden of convincing twelve jurors (or a somewhat smaller number in a few jurisdictions) of the defendant's guilt beyond a reasonable doubt.  Perhaps the government's failure in both scenarios should carry the same Double Jeopardy consequences.

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 

I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.

   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Cognitive Bias and Innocence Commissions

I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003. The Commission, which was jointly sponsored by the state Department of Justice, the state bar, and the law schools at Marquette and the University of Wisconsin, included prosecutors, police officers, criminal defense lawyers, law professors (I was one of four), and community and crime victim representatives. We had a staff, a budget, and quarterly day-long meetings at which we had fascinating discussions of important issues ranging from the quality of the state crime lab to the underfunding of court-appointed counsel to police interrogation tactics to the use of jailhouse snitches. The vision behind the Commission was that consensus reform proposals emerging from a diverse body of experts and leading practitioners might actually get the state legislature’s attention.

In the end, though, none of the hoped-for consensus reform proposals ever emerged.  The group was disbanded when it became clear that the prosecutors were unwilling either to agree to any of the reforms pushed by the defense lawyers or to put forward their own proposals for improving the criminal justice system (besides increasing prosecutor pay).

It was disappointing to see the effort fall apart, and I have been giving some thought as to why it failed. 

For one thing, Avery himself – the man who had been the poster child for the innocence movement in Wisconsin – committed a brutal murder a couple years after his release from prison.  Needless to say, this took much of the wind out of the reform movement’s sails.  (I wonder if there are broader lessons here, in fact, about the risks of criminal justice reformers relying too much on the seemingly compelling stories of exonerees – many of whom ended up as suspects in the first place because of checkered backgrounds.  I know Avery is not the only exoneree who has gotten into trouble after being released.)

Another difficulty is that Wisconsin (like just about every other state right now) is experiencing great fiscal pressure, and all of our agencies are fighting tooth and nail to hold onto their budgets.  In truth, our prosecutors are underpaid, and I can understand their resistance to any reform (e.g., increasing Wisconsin’s worst-in-the-nation compensation rate for court-appointed counsel) that would require a commitment of the state’s dwindling tax resources.

The size of the Commission was another problem.  I appreciate the benefits of a broadly representative group of two or three dozen members, but size and diversity can be a real disadvantage when what is really needed is deal-making between two interest groups, the prosecution and defense bars, that are accustomed to adversarial interactions.  With a smaller commission, it might have been easier to overcome the mutual distrust between the groups.  Certainly, the transaction costs of cutting a deal would have been much less.

But what strikes me most of all about the prosecution-defense breakdown was the extent to which it turned on competing accounts of cognitive bias. 

I am convinced that both sides participated in good faith in the Commission’s deliberations.  Those on the prosecution side genuinely wished to avoid wrongful convictions and listened patiently to the information and arguments presented in support of proposed reforms.  I heard no accusations that either side was intentionally seeking to subvert justice or otherwise advancing a hidden agenda.  Rather, each side was convinced that the other suffered from a fatal cognitive blind spot.

On the defense side, the view was that police and prosecutors did not appreciate their own subconscious tendencies to ignore or downplay the significance of exculpatory evidence (or to exaggerate the significance of dubious inculpatory evidence) once they had settled on the identity of a perpetrator.  This raised particular concerns, for instance, with respect to the sharing of case information with crime lab technicians, whose evaluation of physical evidence might be affected by the knowledge of police or prosecutor suspicions.  The defense lawyers (and, I think it is fair to say, the academics) on the Commission were convinced that confirmation biases systematically skewed the operation of the criminal justice system, such that wrongful convictions, while not routine, were still of such frequency that significant reforms were warranted.  (I should note Commissioner Keith Findley’s Wisconsin Law Review article on cognitive bias in criminal cases as an insightful, and far more nuanced, statement of this basic position.)

On the prosecution side, the view was that the defense lawyers and professors were making too much of a few high-profile DNA-based exonerations that were not truly representative of the operation of the criminal justice system.  Police and prosecutors felt that defense-side concerns were speculative.  In the absence of hard evidence of systemic failure, they saw no reason not to continue to rely on largely unconstrained police and prosecutor discretion to screen out innocent suspects. 

DNA exonerations represent only the tiniest fraction of the total number of criminal convictions obtained over the past few decades, and confirmatory testing is not possible as to the vast majority of these convictions.  The exonerations are like a chunk of ice visible on the surface of the ocean.  We cannot know for certain whether it is just what it appears to be, or whether it is the tip of a much larger number of wrongful convictions.  But whether the exonerations are an ice cube or the tip of an iceberg makes all the difference in deciding whether to implement costly accuracy-enhancing reforms in a time of unprecedented budgetary pressure.

In this state of uncertainty, prosecutors and defense lawyers -- again, I think, acting in good faith all around -- filled in the crucial knowledge gap in predictably self-serving ways.  Beginning with these self-serving premises, each side perceived the other to be suffering from an unrecognized cognitive bias.  Further deliberations were futile when each side was convinced the other just did not get it.

That, anyway, is my take on the Wisconsin experience.  I know that many other law professors have served on similar innocence commissions in other states, and I would be interested in hearing about their experiences.

Some Thoughts on the Book-Writing Sentence

As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done.  I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump.

If you’ll indulge us, we’d like to circle back to a story that broke earlier in the week that we touched on briefly here. In short, on Monday, a federal judge in Washington, D.C., Ricardo Urbina, sentenced a former senior pharmaceutical executive to write a book.

According to the NYT story on the sentence:

Earlier this year the executive, Dr. Andrew G. Bodnar (pictured), a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

The NYT story notes that it’s not the first time Judge Urbina has issued an unconventional sentence. In 1998, he sentenced a Washington lobbyist who had pleaded guilty to illegal campaign contributions to write a monograph and distribute it to 2,000 other lobbyists.

But we got to wondering about Urbina’s sentence — whether it has broader historical precedent, whether the punishment is likely to serve its purpose, and whether it’d be a good thing to see more of these creative sanctions. With that in mind, we checked in with Dan Markel, a law professor at Florida State University and one of the people behind Prawfsblawg, which has long been part of our daily reading. Markel has written extensively on the topic of punishment and is the author of a new book, along with Jennifer M. Collins and Ethan J. Leib: Privilege or Punish: Criminal Justice and the Challenge of Family Ties.

Hi Dan, thanks for taking the time. Judge Urbina’s sentence on Monday struck us as strange and provocative. Are there historical precedents for sentences like this?

Certainly there have long been alternatives to incarceration, some of which have been creative and designed to induce guilt or moral education; others that are simply meant to publicly shame and humiliate.

However, even with shaming punishments, when they were used in the colonial or post-colonial era, there were often points at which a community would hold a sort of reintegration ceremony, in which the person held in public scorn would be welcomed back into the community and told, in so many words ‘Go, and sin no more.’ I think that aspect of reintegration has been lost, though, in most modern shaming punishments.

And are these types of punishments coming into favor — or has their day passed?

I think they have had a bit of a resurgence since the early 1990s, but the evidence is largely anecdotal. Back then, some academics like Yale’s Dan Kahan became proponents of shaming punishments because they — rightly, in my opinion — thought judges should find alternatives to incarceration for many nonviolent offenders. Shaming got a quite a lot of exposure more recently in 2004, when the Ninth Circuit, in a case called Gementera, upheld, despite a strong dissent by Judge Hawkins, a trial judge’s imposition of a supervised release condition in which a mail theft offender was ordered to stand outside a post office with a sandwich board sign that read ‘I Stole Mail; this is my punishment.’ That case is now in a lot of criminal law casebooks.

Since then, at least in the academy, there seems to be a bit less support for shaming sanctions.

Okay. So what exactly is “shaming” about Judge Urbina’s sentence?

Actually I see this sentence less as a “shaming” sentence and more as what I’ve referred to as a “guilting” punishment. A guilting punishment is morally educative and is focused on having the defendant realize what he or she did wrong and why it was wrong, rather than exposing him to public ridicule or humiliation, which is a signal feature of shaming punishments. Writing a book can basically happen in private and there’s no risk that a lynch mob will form to threaten the state’s monopoly on punishment here.

Judge Urbina doesn’t seem to be requiring that the book be circulated widely — it seems to just be a long essay written to the judge, the point of which seems to be to make the defendant think about what he did and why it was wrong and why this type of act — lying to the government about something that could affect public health — shouldn’t be tolerated.

It seems like there’s a continuum between “shaming” and “guilting” punishments, right?

Sort of; I think there’s a continuum of how severe shaming can be, but I think guilting is different. Certainly the wide exposure associated with the imposition of a guilt punishment can incidentally shame someone, but that’s not really the point of the sanction imposed here.

Judge Urbina’s sanction here strikes me as more “guilting” than “shaming.” After all, there’s no state authorized attempt to hold the defendant out for humiliation and no invitation of the public to participate in that scorn the way there was in the Gementera case. In my scholarship, I’ve taken a strong stance against shaming punishments, largely because often they strike me as having to do more with vengeance than with impartial retribution. Judge Urbina’s punishment doesn’t strike me as particularly vengeful.

So you’d be okay with seeing more of these types of “creative” punishments?

I would, but with some caveats. First, I’d have some systematic concerns. I wouldn’t want to see the benefits of these types of sentences conferred only on people of a certain race or class who seem especially able to the court to be able to engage in book writing while poor folks are presumed not to have anything interesting to write or say. In other words, I wouldn’t want to see the “book-writing” sentence given only to those defendants who own a certain level of literacy or certain gifts of language.

Second, remember that there’s an important rationale behind the initial passage of the federal sentencing guidelines: namely, to try to reduce unwarranted disparity such that people who commit similar crimes are treated roughly similarly. I think if you see a proliferation of these types of creatives sentences, you run the risk of imposing sentences that vary too much across cases. That concerns me a little too.

But here, it doesn’t strike me as that much of a problem, partly because [Dr. Bodnar] was charged with a misdemeanor. I think it makes more sense to allow more discretion to judges when it’s a non-severe offense and the punishment imposed is relatively modest too.

And what about the punishment itself — having to write a book? Does it strike you as an effective punishment?

Standing alone, no, I don’t think it’s particularly persuasive. My concern with it, standing alone, is that the punishment might not be sufficiently condemnatory. Punishments for wrongdoing need to condemn, and to condemn, sentences need to register as setbacks to both the defendant and the public.

However, I think the sanction, once it’s coupled with the other measures Judge Urbina imposed [two years' probation and a $5,000 fine], that could be sufficiently condemning. And that could be useful. My concern is that you could undermine the very point of a punishment by just allowing someone to write a book, from both deterrence and retributive standpoints.

So you’d generally be okay with these types of punishments, so long as they’re applied fairly and consistently and achieve the goals associated with sentences?

Right. I’m supportive of guilting punishments when used smartly and fairly. We definitely use incarceration too much and for periods of time that are too long, especially for people who don’t pose physical harm to the community.

That said, if these are going to pick up, they need to be calibrated. The sentencing commission needs to weigh in on this, at least to ensure there’s a check on what judges are doing. Congress, too. Both need to be working in concert with the federal judiciary.

Very interesting stuff, Dan. Thanks for taking the time.

My pleasure.

Sentencing Judges, Explain Yourselves

It's always interesting to see a topic one is writing about show up in the advance sheets.  (I suppose "interesting" isn't quite the right word for it when a new case requires a massive rewrite -- as happened to me when the Supreme Court decided Blakely v. Washington -- but fortunately that's not where this post is headed.)  I've been on a procedural justice kick in my scholarship for the past couple years.  First, I took on procedural justice in plea bargaining (e.g., here and here).  Then, I got interested in how the social psychology model of procedural justice might play out in the sentencing context, particularly with respect to the explanation for the sentence provided by the sentencing judge.  The Seventh Circuit had a good decision in this regard a few years ago in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), which indicated that judges must provide an express reason for rejecting nonfrivolous arguments made by defendants for a sentence below the recommended sentencing guidelines range.  As I discuss in a forthcoming Florida State Law Review article, however, post-Cunnigham cases, including the Supreme Court's decision in Rita v. United States, 551 U.S. 338 (2007), have largely undermined the robust explanation requirement that was seemingly contemplated by Cunningham.

But a new Seventh Circuit decision from just last week, United States v. Harris, tells us that the Cunningham explanation requirement still has some life left.  

 

Here's what happened.  David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow's health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow's health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

On appeal, the Seventh Circuit vacated Morrow's sentence.  Citing Cunningham, the court held that the sentencing judge did not adequately explain the sentence because the judge failed to address the health argument:

[W]e cannot assure ourselves that the district court weighed Morrow's health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow's case for resentencing.

Harris is notable for being one of the few post-Rita cases to reverse a sentence for inadequate explanation (the Sixth Circuit also has a couple).  As I discuss in the Florida State article, these decisions generally seem to ignore or misinterpret Rita.  Harris, though, suggests an interesting basis for distinguishing Rita.  In Rita, the Supreme Court held that the sentencing judge was not required to address the defendant's arguments for a below-guidelines sentence (which, coincidentally, also included arguments based on health concerns).  But, as the Seventh Circuit noted in Harris, Rita's guidelines range (33-41 months) was both much narrower and much lower than Morrow's (360 months to life). 

And, intuitively, these considerations do seem to matter.  That is, Rita does not seem entitled to as thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range) as is Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range).  This is consistent with the logic of Mathews v. Eldridge, 424 U.S. 319 (1976),  which indicated that the strength of required procedural protections varies according to the magnitude of the individual interests implicated by a government decision -- recalling that the liberty deprivation Rita faced was much less severe than the liberty deprivation Morrow faced.  Additionally, the fact that Rita was sentenced at the bottom of his range at least implicitly reflects consideration of mitigating circumstances, while Morrow's mid-range sentence provides no such reassurance.  In short, I think Harris may be onto something in focusing on the severity of the guidelines range and placement within the range.

By the way, responsiveness to defendant arguments is, I think, only one aspect of what should be included in a good sentence explanation.  I am working on a new paper now that attempts to go beyond Cunningham in identifying additional principles that ought to be employed by appellate courts in reviewing the adequacy of an explanation.  I will present the paper at the Marquette Criminal Appeals Conference on June 16, and I hope to have a draft on SSRN by the end of the month.

SCOTUS on Collateral Estoppel in Criminal Cases

I'm grateful to Dan for inviting me back for a third stint on Prawfs.  I'm not sure whether I should be pleased or chagrined, but I've found in recent years that when I meet new people at AALS, they are more likely to recognize my name from Prawfs than from my law review scholarship.  I'm trying very hard to believe this is more of a positive comment on Dan and the rest of the Prawfs team than a negative comment on my scholarship!

On to more substantive matters, like the Supreme Court's unanimous decision today in a death penalty case, Bobby v. Bies. Back in 1996, while reviewing Bies' sentence, the Ohio Supreme Court noted that the defendant's "mild to borderline mental retardation merit[s] some weight in mitigation," but affirmed his sentence anyway.  Six years later, of course, the United States Supreme Court ruled in Atkins v. Virginia that the Eighth Amendment bars execution of the mentally retarded.  The Ohio courts sensibly responded to Atkins by ordering a hearing to determine whether Bies was indeed retarded for Eighth Amendment purposes.  But Bies preempted the hearing by persuading a federal court that the issue had already been decided in his favor by the Ohio Supreme Court and that relitigation was precluded by the Double Jeopardy Clause.  After this decision was affirmed by the Sixth Circuit, the Supreme Court today reversed, holding there was no Double Jeopardy bar to the proposed Atkins hearing.

A couple of reactions.  First, as a unanimous decision in such a politically charged area as the death penalty, Bies is a nice reminder -- amidst the high emotions and free-flowing hyperbole surrounding the Sotomayor nomination -- that justices from across the ideological spectrum can and (at least at times) do set aside policy preferences to reach consensus right answers.

Second, although I'm pretty well convinced the Court got the right answer with respect to Bies, the opinion swept more broadly than it had to, perhaps unnecessarily limiting the Double Jeopardy issue preclusion doctrine. Is this one of those instances of "easy cases make bad law"?

The Ohio Supreme Court's statement about Bies' mental limitations was a short comment made in passing, and obviously not directed to the legal standard in Atkins (which was still six years away from being decided).  Bies was playing a "gotcha" game with the Ohio courts.  His claim could have, and should have, been rejected based on the simple fact that the Ohio Supreme Court did not purport to speak to any specific question of fact at issue in the Atkins hearing.  Instead, the Court rejected Bies' claim based, at least in part, on the fact that "the courts' statements regarding Bies' mental capacity were not necessary to the judgments affirming his death sentence" (slip op. at 8-9).  The statement on mental capacity did not trigger issue preclusion because it was merely a "subsidiary finding that, standing alone, is not outcome determinative.  Issue preclusion cannot transform Bies' loss at the sentencing phase into a partial victory" (9).

The import of Bies seems to be that defendants cannot invoke Double Jeopardy issue preclusion unless they won on some ultimate question in an earlier proceeding.  This rule, of course, has the formalist virtue of easy administration.  But the seminal case on Double Jeopardy issue preclusion, Ashe v. Swenson, famously disavowed formalism in favor of "realism and rationality."

So, here is a hypothetical variation on Bies in which "realism and rationality" would at least arguably favor the defendant.  Imagine that the Ohio courts had not merely made a vague, conclusory reference to Bies' mental limitations, but instead made the specific finding that "an IQ test administered after the offense establishes that Bies' IQ is 65."  In a later, post-Atkins hearing in state court, the state introduces a different IQ test showing an IQ of 71 and tries to take advantage of the rebuttable presumption recognized in Ohio law "that a defendant is not mentally retarded if his or her IQ is above 70" (5).  Now it doesn't feel quite so much like a game of "gotcha" when the defendant invokes issue preclusion.  Or, make the scenario even more favorable to the defendant and imagine that the state actively litigated the IQ question pre-Atkins and lost. Or, better still, the Ohio courts specifically found the test showing the IQ of 71 to be unreliable for some reason.  Do we really want to give the state a second opportunity to litigate IQ after it lost so decisively once?

Now, perhaps even in the hypo, the right answer is just to decide the IQ issue again anyway.  I can readily admit the disadvantages of case-by-case litigation of the reliability of "subsidiary findings" in earlier proceedings, and a balancing of the various competing values might well point in the direction of the bright-line rule endorsed in Bies. But a little more "judicial modesty" by the Court could have easily saved the question for another day.

LSA, etc

Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference.  As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday).  On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders).  It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.

Tomorrow morning, bright and early at 815am, my co-author Jennifer Collins and I will be participating in a "Author Meets Readers" roundtables for our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  Tommy Crocker will be chairing the panel, which includes a great group of commentators: Melissa Murray, Don Braman, Naomi Cahn, and last but not least, the incomparable Alice Ristroph. If you're in Denver, we'd love to have you join the conversation. 

Last, if you're in Denver for the few days, make sure you try the great restaurant our panel dined at tonight: Rioja.  The tuna main course and the goat cheese calzone were delish! Thanks to Sam Kamin for the local Denver recon. 

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its  concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."  

Twelve years later, in New York v. Belton, a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."   

Two years after Belton, relying upon Terry v. Ohio, 392 U.S. 1 (1968), the Court found in Michigan v. Long, 463 U.S. 1032 (1983), that an officer may also "search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is 'dangerous' and might access the vehicle to 'gain immediate control of weapons."   

Seven years after Long, the Supreme Court extended the scope of the search incident to a lawful home arrest in Maryland v. Buie, 494 U.S. 325 (1990), holding "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched." Then, relying upon Terry, the Court found that officers can also conduct a protective sweep of the rest of the home, but only when there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."   

All of this takes us to the Court's opinion in Wednesday in Arizona v. Gant. In Gant, officers arrested Gant for driving with a suspended license and searched his automobile incident to that arrest only after handcuffing and locking Gant in the back seat of a patrol car, i.e., the situation identified by Brennan in his dissent in Belton. But Brennan's presumption was wrong. The Court noted the two Chimel justifications and found that Brennan's reading of the Belton majority opinion fulfilled neither because Gant obviously could not access the passenger compartment of his vehicle. Accordingly, the Court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Later, the Court rephrased this holding in a slightly different manner, concluding that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (thus incorporating the automobile exception into its holding) 

Before this rephrasing, the Court also disposed of the State's suggestion that a broad reading of Belton was "[]necessary to protect law enforcement safety and evidentiary interests." According to the Court, this is the case because "[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand." Specifically, the Court noted that officers in cases such as Gant can still search the vehicle if Long and/or the automobile exception applies. Interestingly, the Court then noted:

Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334...(1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).  

Now, of course, this "established exception" would not apply to the arrest of the driver of a vehicle, which is why the Court used a cf. cite. But, it seems to me that, through this citation, the Court inadvertently showed the invalidity of the "adjoining area" holding in Buie.

Like Brennan's construction of the majority opinion in Belton, the holding in Buie "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched" is a fiction. When police arrest and handcuff a suspect in a room such as bedroom, that suspect cannot access certain adjoining areas that could be fifteen (or more) feet away. See, e.g., State v. Roberts, 957 S.W.2d 449 (Mo.App. W.D. 1997) (upholding an "adjoining area" search of a closet and kitchen and living room areas that were respectively seven to ten feet and fifteen feet away from the handcuffed arrestee).

Of course, the twin Chimel justifications of preventing the arrestee from accessing weapons and/or evidence were never the basis for the "adjoining area" holding in Buie. Instead, this holding was based upon the possibility of other people launching an attack on officers from adjoining areas. But if this possibility was not sufficient to uphold the Belton fiction, why should it be sufficient to uphold the Buie fiction?

Just as officers in cases such as Gant can still search the passenger compartment if Long applies, officers completing a home arrest can conduct a protective sweep of the rest of the home if there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Just as officers in cases such as Gant can still search the arrestee's vehicle if the automobile exception applies, officers completing a home arrest can search the rest of the home if they procured a search warrant in addition to an arrest warrant (or if the plain view doctrine applies, etc.).

This analysis indicates the Court should eliminate the Buie fiction for the same reasons it eliminated the Belton fiction, especially because individuals enjoy a greater expectation of privacy in their homes than they enjoy in their vehicles. Seemingly the only basis for a distinction between the two fictions is the Court's statement in Buie that

unlike an encounter on the street or along a highway, an in-home arrest puts the officer at a disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.  

Of course, that language was used in support of the "protective sweep" portion of Buie, not the "adjoining area" portion, and this makes sense. An officer likely won't know the configuration of a home, justifying protective sweeps of other rooms based upon reasonable suspicion. But this knowledge gap does not support suspicionless searches of areas adjoining the arrest room, whose configuration is readily observable by the officers. 

Undocumented Immigrants and Loss of Parental Rights

The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers.  One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft. While in jail, a couple petitioned to adopt her son (to which she did not give consent) and the court approved the petition several months later without her knowledge.

This news article highlights one of the troubling consequences of increased immigration law enforcement in the U.S. on immigrant families and the communities in which they reside.  One part of the opinion is worth quoting. In terminating the woman's parental rights, the judge stated that, "[h]er lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child."  

I was perturbed by this statement and chose to include it here because it points to an area that may be explored further: the intersections between family law, criminal law and immigration law.  In recent years, a number of legal scholars have focused on exploring the relationship between family law and criminal law.  Among them are Prawfsblawg's Dan Markel and Ethan Lieb, who, along with Jennifer Collins, have authored a book and several articles addressing the role of family ties in the criminal justice system.  Jeannie Suk has examined the concept of the home and family privacy as it relates to domestic violence enforcement and the operation of the Fourth Amendment, while Melissa Murray has considered the way in which criminal law and family law work cooperatively to structure the normative contours of intimate life. 

The work that is being done in this area is incredibly interesting and timely.  As the NY Times story makes clear, the impact of regulatory systems -- whether through the criminal law, immigration law, or both -- on families will raise important questions about parental rights, privacy and our understanding of family life.  

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

Caseload Relief for NYC Public Defenders ~ But at a Cost?

Encouraging news for New York City public defenders—the new state budget authorizes the Chief Administrative Judge to set caseload standards for public defenders. Throughout the country, overwhelming caseloads have undermined public defenders’ ability competently and diligently to represent all of their clients, and the current fiscal crisis may have exacerbated this problem. The New York City caseload standards, which are set to be implemented within four years, should help to prevent the common occurrence of lawyers handling over 100 assigned cases at a time.

I wonder, however, about a possible downside to this otherwise positive development: greater external scrutiny of individual attorneys’ case management. 

I was a public defender in New York City from 1994 to 2005, both with the Legal Aid Society in the Bronx and New York County Defender Services in Manhattan. Although I did not negotiate or manage the budget at either office, my conversations with the people who did led me to believe that our government funders did not audit how attorneys handled individual cases or even monitor individual attorney caseloads. Rather, my sense was that annual office-wide case assignment and disposition numbers were evaluated, and perhaps average attorney caseloads were considered. Whatever the exact calculus, I certainly felt no external pressures when I evaluated which cases could be handled more efficiently or required greater time and attention. My offices, however, were expected to address individual attorney caseload problems internally.

With this new external enforcement of caseload standards, could greater external scrutiny of individual attorney “productivity” come with it? I’m hard pressed to think that some inquiry into individual attorney work practices wouldn’t be expected and even necessary for the judiciary to determine what caseloads reasonably can be managed by diligent and attentive lawyers. But public defenders understandably should be expected to resist external scrutiny of individual attorney case management, in part because of its potential to interfere with attorneys’ independent professional judgment, see N.Y. Code of Prof. Resp. Canon 5 and EC 5-1, and in part because public defenders already battle against many clients’ impression that we already answer to the government. The New York Times article didn’t include any comments from the union of legal aid attorneys in New York City, and the union statement at the Legal Aid Society's web site doesn't speak to this possibility.

Perhaps concern about external scrutiny will not materialize as the judiciary examines appropriate caseload standards. But, this caseload issue may be interesting to follow.

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Operation Tough Love

Staying home on a Friday night and working, with occasional channel flipping or websurfing or even old fashioned just reading a book (i.e., not on a Kindle) is the tough love of my academic commuter marriage.  No wonder a segment on Dr. Phil (I swear it just happened to be on the TV when I turned it on) about the Maricopa County (Arizona) Sheriff’s Office’s recent “Operation Tough Love” seemed Tivo-worthy.

It turns out that on Valentine’s Day, Sheriff Joe Arpaio rounded up “deadbeat dads,” men who had failed to pay child support. The men were held on $10,000 bond in tents where the temperature reaches, according to Sheriff Arpaio, 148 degrees in the desert sun (Farenheit, I assume, as Sheriff Arpaio, who wears a tie pin shaped like a handgun and is known for making prisoners wear prison-stripes and pink underwear, doesn’t strike me as a Metric System sort of guy - he tends toward Medieval).

Local news reported that 72 people were arrested, but only 18 were deadbeat dads - the remaining 54 were arrested for other offenses, such as drugs (was this operation a pretext?).

This Very Public Event (read: spectacle, political stunt) seems like a waste of resources. It also seems counterproductive. What if Dad is deadbeat because, in our Meltdown Economy, he’s out of work? Will keeping him locked away unless he can pay really help his kids - given that this whole operation is (of course) “for the children”? I wonder why the sheriff isn’t instead out garnishing wages (if any) or seizing cars (if any) or homes (if any are even worth seizing these days)? Those methods seem more profitable.  The counter-productivity (and harshness) of Operation Tough Love is amplified when we consider that Dad could be injured in lockup by other prisoners, or from heatstroke, and that his brush with the criminal justice system could lead to job loss or stigma that harms his efforts to gain productive employment.  Consider also that the United States Supreme Court's expansive search-incident-to-arrest doctrine could lead to conviction for possessing various contraband found upon arrest, which under draconian drug laws could put the father in prison for years, rendering him truly unable to pay child support.

I Foley Admit that I don’t have the details of specific cases. Maybe these guys are notoriously deadbeat, and Sheriff Arpaio had tried all other means and failed.  But I wonder if the apparent political popularity of such roundups might cause them to become routine, leading to a de facto crime of poverty in our tough economic times - and yet another way for police to trigger their search-incident-to-arrest powers?

I don’t have a dog in this fight: I don’t have kids - another aspect, perhaps, of my own, two-city, Operation Tough Love.

H/T Dr. Phil.

Will the election for Morgenthau's successor fail us?

Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?

I was pleased to get some aid on the subject just this morning via a SSRN bulletin.  Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.

Here's the abstract.

How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? 

There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections - described here for the first time - reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

The corruption of federal anti-corruption prosecutions

On Monday, the Court denied cert in Sorich v. United States, 08-410. Justice Scalia was correct to dissent: The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption.

Robert Sorich was Daley's head of the Chicago Office of Intergovernmental Affairs. His heinous crime was to use this office to hand out governmental jobs to the political supporters of the mayor. The Seventh Circuit had held that Sorich and others were under a fiduciary obligation not to engage in patronage politics, because the City was under a consent decree from the Shakman litigation not to take political affiliation into account when making municipal hiring decisions. Shakman was section 1983 case in which Michael Shakman claimed that discrimination based on political affiliation deprived him and others of an equal right to participate in the political process. Sorich tried to evade this decree by picking candidates based on political loyalty and then subjecting them to sham interviews and other politically neutral job criteria. For this, he was convicted of depriving the citizens of Chicago of his honest services -- a conviction that the Seventh Circuit upheld in U.S. v. Sorich, 523 F.3d 702 (7th Cir. 2008).

That patronage politics are now a criminal offense in Chicago is surely eye-opening. That U.S. Attorneys can determine when patronage politics are criminal, based merely on their own sense of ethics laced with miscellaneous rules on disclosure and conflict of interest, is simply wacky. One can only hope that the discretion of federal prosecutors will be reigned in by the twin requirements that the indictment specify some sort of secrecy (to satisfy section 1346's requirement that there be a deprivation of "honest services") and breach of fiduciary duty (to satisfy section 1346's requirement of a deprivation of some "intangible right" to such honest services). But there are a plethora of civil rules out there on disclosure, conflicts of interest, etc. (New York City has a full-time administrative agency devoted to ferreting out such conflicts). Have all of these state and local rules now been transformed into political weapons for use by U.S. Attorneys -- political appointees themselves and often aspiring politicians -- against their political rivals?

I guess that the Court is just too darn busy to answer the question.

New Voices in Criminal Law Scholarship at Law and Society, 2009

Having survived her unsparing tutelage, I, along with my friend and sparring partner, Alice Ristroph, have put together a conference within a conference at Law and Society in Denver in late May 2009. We'll have about 8 panels with approximately four panelists per session on a variety of subjects. While we limited our efforts primarily to younger/untenured prawfs this year, I suspect there's no real reason to make the limitation in the future, assuming this one goes reasonably well. 

A little backstory. My experience with Law and Society in the past has been somewhat mixed when I ended up on a panel that I didn't help organize in some respect, so Alice and I decided we'd try to match crim law scholars roughly by topic.  Additionally, because of the open structure of Law and Society, there are rarely situations where others in the room have read the paper you are presenting -- so the likelihood of useful feedback is, to my experience, lower than it could be when there are opportunities to read the workin advance. Consequently, Alice and I are asking all the panelists to not only present their own paper but also to read the work of the other panelists on their panel. With some luck, this should enrich and elevate the conversation's depth of engagement with the work.

After the jump, you can check out our current list of panels (subject to minor tweaking). The order here is not reflective of the actual order at the conference and there may be changes to the titles, etc, but I wanted to give a flavor of who will be presenting and on what subjects in case you're a crim-type person.  One of the advantages of this structure is that the panels will be organized so as not to be scheduled in confict with each other.

Crim Law: Fed Crim Pro

 

Jelani Jefferson Exum (Kansas):  Dropping the Anchor: Reconfiguring Federal Sentencing after Booker

Ted Sampsell-Jones (WMitchell): Making Defendants Speak 

Carissa Hessick (ASU): Ineffective Assistance of Counsel at Sentencing

Emily Sack (Roger Williams) Federal-State Conflicts in Criminal Law 

 

Crim Law: Comparative Perspectives

Lissa Griffin (Pace): Study of Wrongful convictions in UK 

Shawn Marie Boyne (Indianapolis) Revisiting Damaska: Prosecutorial Discretion and the Search for Truth in Germany

Catherine Grosso (Michigan State), Military Murder versus Civilian Murder:  The Impact of Conventional Civilian Aggravators on Military Death Sentencing, 1984-2005."

Carolyn Ramsey (Colorado): "Provoking Change: Should the United States Follow Australia
in Reforming Homicide Law?".

  

Crim Law: Punishment Theory

Mark D. White (CUNY): Consequentialist Retributivism

Dan Markel (FSU), Should Retributivists Care About the Subjective Experience of Punishment?

Don Braman (GW), Against Punishment Naturalism

John Bronsteen (Loyola): Happiness and Punishment

 

Crim Law: Choice and Chance in Criminal Law

Marc DeGirolami (Catholic): Retribution and Justification

Vera Bergelson (Rutgers): Strict Liability and Affirmative Defenses

William Berry (Ole Miss): All for one and one for all?  Exploring the parallel (procedural) repudiation of capital punishment by Powell, Blackmun, and Stevens 

Vincent Chiao (HLS Fellow), Equality, Desert, and Luck in criminal law and procedure

 

Crim Law: Fear and Loathing in Criminal Law

 Alice Ristroph (Seton Hall), Criminal Law in the Shadow of Violence

 Mary Fan (American), The Spatialization of Fear and Fourth Amendment Reasonableness Shifting

 Russell Covey (Georgia State), Cinematic Representations of Insanity

 Melanie Wilson (Kansas): Police Lies.

 

Crim Law: Sex, Kids and Crime

 

Corey Rayburn Yung (John Marshall): The Undeclared Criminal War on Sex Offenders

Carissa Hessick (ASU): Punishing Kiddie Porn

Audrey Rogers (Pace): "Protecting Children on the Internet: Mission Impossible?"

Tamar Birckhead (UNC): Are Juveniles Entitled to Procedural Justice?

Crim Law : Domestic Violence

 

Melissa Hamilton (Toledo): Gender and Sexuality in Arrest Outcomes for Intimate Partner Violence.

Kim Bailey (Chi-Kent): "There is a Stranger in My House:  Re-Examining Privacy in Domestic Violence Law & Policy."  

Emily Sack (Roger Williams): critical analysis of the line of recent Supreme Court cases involving domestic violence – including Castle Rock, Crawford, Davis/Hammon, Giles.

Jennifer Collins WFU: Fathers Who Kill Their Children

 

Criminal Justice and the Family: A Roundtable on Privilege or Punish

How Should Family Status Be Addressed in the Criminal Justice System?

The panel will use as its springboard for discussion the new book, "Privilege or Punish: Criminal Justice and the Challenge of Family Ties" (Oxford, April 2009) by Dan Markel (Florida State Law), Jennifer M. Collins (Wake Forest Law), and Ethan Leib (UC-Hastings). Discussants will include Naomi Cahn (George Washington Law), Melissa Murray (Berkeley Law), and Elizabeth Scott (Columbia Law), Don Braman (GW), Tommy Crocker (U. South Carolina), as well as the authors.

 

 

 

 

Evidence excluded in Bonds trial

Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence.

Only one part of the opinion gave me a pause: She excluded one of three audio transcripts of conversations--the one in which Bonds' trainer, Greg Anderson (the guy whose refusal to testify is the cause of all this) speaks with Bonds' personal assistant about random drug testing for the upcoming (2003) season and seems to suggest that he knows someone at the testing lab and he will be tipped in advance to when, if ever, Bonds will be tested. Judge Illston rejected the government's argument that this is admissible as a statement against interest, because "the government has not established that it was a criminal or civil offense in 2003 to help athletes evade detection by professional sports associations."

But this seems a bit too quick. If a lab employee were tipping off players (or members of their posses) about upcoming tests, wouldn't MLB have some claim against the lab and the employee (fraud, interference with business expectation, something else (help me out, tort people))? And wouldn't MLB also have a claim against the posse member (in this case, Anderson) who received the tip and passed it along, also frustrating MLB's business expectations? Maybe this just was a matter of what the government brought forward on the motion. But it seems Anderson could have gotten into some trouble by receiving and passing along these tips, such that his admission of it would be against his interest.

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

Thank God We're Not Discussing the Michael-Phelps-Smoking-Dope Story!

Is anyone surprised that a 20-something über-athlete millionaire would smoke some pot at a party? My sense is that most people don’t care about this. (I live in Massachusetts, which recently decriminalized possession of less than an ounce of marijuana for personal consumption.)  This is one of those media stories that exists because there's a photo to display - though the Olympian’s lung capacity alone might make a double-hearsay report of the event newsworthy ("Phelps Finishes Off World Marijuana Supply").

“But Phelps is a role model!” some people say. If Phelps is your role model for swimming and now you’re confused and think that maybe you can smoke dope and still win eight gold medals in one Olympics, I say, Go for it. You probably won’t win eight gold medals (or a single silver or bronze) even if you don’t smoke dope, or, for that matter, even if you’re a drug-free teetotaler.  If Phelps serves as a more general role model, then I think we’re all better off knowing that people can succeed in various endeavors without having to be “perfect” - why let false idols rule our lives?

Here’s a hypothetical question. Assume it’s a jailable offense to smoke dope as Phelps has.  Should Phelps go to prison? Why or why not? Now assume it’s a mandatory minimum two year sentence. Is putting Phelps in dry dock a good use of our limited resources? Perhaps the Phelps story might open up public discussion about the so-called "War on Drugs."

Perhaps I'll raise Phelps’s case Friday at The Road to Prison Reform: Treating the Causes and Conditions of our Overburdened System, sponsored by the Connecticut Public Interest Law Journal at the University of Connecticut School of Law. See the program here.

And on that note, be sure to catch the California Correctional Crisis Conference next month, which former PrawfsBlawg Guest Hadar Aviram is involved with.

What Are We Supposed to Be Doing Here?: On the Tension between Theory and Practice

Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement.  [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn't bear it because he didn't feel like what was taught in criminal law bore any relationship to reality.  The casebook he used (and that I use) focuses on homicide and rape, not the far more common property and drug crimes with which criminal courts generally deal.  Also, although the book has an extensive section on the workings of the criminal justice system, it generally presents the substantive law through reported appellate cases, as nearly every other law school casebook does.

But this professor's greatest criticism of the book's had to do with its focus on the Model Penal Code.  "That's not the law anywhere," he complained.  "It's just an analytic exercise."  What was interesting to me is that this is exactly the same criticism that my students, not generally immersed in the Law and Society tradition, make against the book.  Many of them want to practice criminal law in this state and expect our class to focus on what Colorado's laws provide rather than on the MPC's attempt to systematize and rationalize the common law.

So I guess my question is, what is our obligation to familiarize our students with the realities they will encounter when they hit the real world?  How much should we teach them about the law of a particular jurisdiction (or even what the majority rule is nationwide) and how much should we encourage them to think expansively about what the law ought to be?  The Carnegie study of legal education indicated that law schools do a poor job of giving our students the practical skills they will need to practice.  But how much is that our responsibility?  Shouldn't we be teaching our students analytic rigor and expecting their future employers to help them find the courthouse?  Or do we dis-serve our students by teaching them the MPC's approach to attempt law, but not how to negotiate a plea agreement?

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.

My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing v. California, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)

I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

Prisons in Haiti... and in California

I've been thinking this morning about the parameters we use to compare the scope of rights available to citizens in different countries. This month we've been hard at work putting together the California Correctional Crisis Conference, which will happen in San Francisco March 19-20 (and you are all, of course, warmly invited to RSVP and attend). In making the conference happen, we all learned a great deal about the dire circumstances of our state prisons, which are at 200% capacity, and whose medical system is falling apart. I've also come across a pretty decent (though somewhat sensationalized in terms of presentation!) documentary series that serves as a good primer about how we got to this sad state of affairs.

But then, I think about the prison system in places like Haiti, where people languish for months without any proper medical care and before trial; where the conditions are unbearable; and where, often, there is no separation between populations that we take for granted should be separated. Hastings, and a few other law schools such as Seton Hall, are helping in Haiti, and we will be there in March helping with some prison research. Is it better to concentrate our efforts on places where people are, perhaps, objectively worse off, or closer to home?

Naturally, there's no one good answer to these questions. Do we expect more from California than we do from developing countries? And, if so, do we take it for granted that "our" prisoners, even if their conditions are extremely problematic, are and should be better off than "their" prisoners? To what extent do we ignore problems in developing countries until some political/symbolic mechanism pushes us to act? And given the limited resources we all have, what do we devote our energies to?

As I ride into the sunset to ponder these, I'll provide an update I still owe you all regarding the police officer who shot Oscar Grant at the Oakland BART station. After what seems to have been a problematic police probe into the matter, the officer has been released on bail but charged with murder, and it seems like he will be arguing he mistook his gun for a taser. The other officer, who hit grant, argues provocation. 

With these difficult questions on my mind, I bid you all farewell for the time being. Thank you for the gracious hosting and for your thoughtful comments and dialogue.