Saturday, September 08, 2018
Elected Prosecutors and Non-Prosecution Policies
Rachel Rollins is likely to be the next district attorney in Suffolk County, Massachusetts. She recently won the democratic primary, and she is not facing a Republican challenger in the general election. Rollins is a reform-minded candidate, and so her win has caused a bit of a stir. Rollins is also causing a stir because she recently released a list of crimes that she says she will decline to prosecute if elected. The list includes larceny under $250, receiving stolen property, disorderly conduct, and other charges.
If you had asked me ten years ago what I thought about a prosecutor making a public announcement about all of the crimes she would not prosecute, I would have been extremely critical. In particular, I would have said that prosecutors have a duty is to enforce the laws, and policies of non-enforcement conflict with that duty. Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors. But having spent time studying the relationship between criminal justice institutions, I am much less critical of Rollins’ announcement. In particular, I no longer think that decriminalization decisions are reserved for the legislature.
To be clear, my point about decriminalization is a descriptive one, not necessarily a normative one. Legislatures have—to a significant extent—delegated the scope of criminal law to prosecutors. Legislatures have done so by writing overly broad criminal laws. Legislatures write overly broad laws knowing that prosecutors will not prosecute all behavior that falls within the statutory text. Prosecutors will make their own decisions about the circumstances under which to prosecute crimes. In other words, prosecutors are free to decide what conduct to treat as legal and what to treat as permissible. We got a glimpse of that decision-making when James Comey explained to Congress that, even if Hillary Clinton’s behavior fell within the text of a federal criminal statute, it did not meet the criteria that DOJ uses for actually bringing charges in such cases.
The sheer number of crimes also delegates questions about the scope of criminal law to prosecutors. Resource constraints make it impossible for prosecutors to bring charges against everyone who commits a crime. As a result, district attorneys have to make decisions about which crimes to prioritize and which crimes to deprioritize.
Some might respond that there is a difference between making enforcement decisions in the context of individual cases and making enforcement decisions ex ante about an entire category of cases. But I don’t see the appeal of that argument. The elected district attorney is the individual who has been empowered to make these important decisions. So one hopes that she is making those decisions in the context of a general office-wide policy, rather than leaving the decision to line prosecutors in individual cases. Line prosecutors may have different priorities, and case-by-case decisions would doubtlessly lead to inconsistent decisions.
Some might also object that, even if an elected prosecutor has formal policies about what charges not to bring, she should not announce those policies to the public. If I know, for example, that my district attorney is not going to prosecute larceny of goods under $250, then (so the argument goes) I will feel free to steal items that cost less. (Meir Dan-Cohen fans will recognize that argument as one of acoustic separation.)
Even assuming that such public announcements decrease deterrence—and I am uncertain whether they do—public announcements have a significant benefits : For example, public announcements can help ensure that law enforcement won’t enforce these laws in an arbitrary or discriminatory fashion. One major problem with overly broad laws or rarely enforced laws is that they can be used as a pretext for racial discrimination or other animus. In this respect, overly broad laws and rarely enforced laws are similar to vague laws.
Most importantly, public announcements make prosecutors democratically accountable for their enforcement policies. Unannounced policies do not allow the public to make informed voting decisions or to give feedback to elected prosecutors about how they have chosen to enforce the criminal laws. But in announcing this list of crimes, Rollins has ensured some measure of legitimacy and accountability for her decisions.
I am sure that at least some people will read this post and think that it has failed to fully justify or defend a practice of categorical non-enforcement. There are very intelligent people who have argued against categorical non-enforcement. In an ideal world, I would probably agree that legislatures should make all criminalization and decriminalization decisions. In such a world, legislatures would write narrowly targeted criminal laws and would not criminalize more behavior than the system could reasonably prosecute and punish. But that is not the world we live in. Since legislatures have decided to delegate significant questions about the scope of criminal law to prosecutors, prosecutors should answer those questions in a transparent and accountable fashion. That is what Rachel Rollins has done here.
Wednesday, August 22, 2018
Big Little Lies--Crim Law Question
GMy wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.
SPOILERS after the jump. Substantive crim law people, please help us out.Assuming what was shown on the screen is accurate, here is what happened:
Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.
The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).
Here are my questions:
• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?
• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.
• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.
Wednesday, July 25, 2018
Tribute(s) to Prof. Joshua Dressler
The latest issue of the consistently excellent Ohio State Journal of Criminal Law includes a bunch of tribute-essays from the field's heaviest hitters about CrimProf extraordinaire Joshua Dressler and his work. I don't think it's a stretch to say that Dressler is a legal-education treasure. I've been using his casebook (now a joint project with Stephen Garvey) since 2000 and I know that hundreds of my former students are more-than-grateful to his Understanding Criminal Law for cutting through the fog created by my lectures! Take a look a the volume, and raise a glass to Joshua!
Tuesday, July 24, 2018
Pragmatism and Compliance
One of the reasons I enjoy working in the compliance area is its pragmatism, which I think is reflected in two important ways.
First, compliance is a pragmatic area of study for students. I have seen this with both my actual compliance students and my research assistants. For example, one of my former students went on to apply for a position with the SEC Student Honors Program and was eventually placed with the Office of the Whistleblower. She emailed me shortly after starting the program to explain how she felt prepared for the placement, because we had covered the SEC whistleblower program during class. Similarly, my summer research assistants often email me after on-campus interviewing to explain how their summer working for me was helpful to them during the process. Because much of the “law” I rely upon is not available on Westlaw/Lexis, I tend to conduct specialized training for my research assistants where we cover what an enforcement action is and different methods of identifying and analyzing information that is not available in case law databases. For those students who end up in a regulatory or white collar practice for the summer or after graduation, they tend to have a bit of a leg up on their counterparts who may have little to no awareness of these sorts of enforcement documents.
Second, compliance is an area that has huge applicability and ramifications for practicing attorneys. I love that each of my projects tackles a concrete problem confronting practitioners and leaders within industry and attempts to help them sort through potential solutions or considerations they should take into account. When I send out my reprints, I probably send about 20% to people in practice at law firms, in-house at corporations, or senior government officials. To my delight, I often get a response back, which allows me to have informal conversations that help me get a better understanding of the challenges and struggles faced by those within industry. These conversations almost always help me to sharpen my ideas. And I am hopeful that these interactions will aid me when I eventually transition to some qualitative projects, which I plan to start working on in a couple years.
There are, of course, other ways in which working in the compliance space is pragmatic; just as there are other scholarly areas with similarly pragmatic attributes. But the pragmatism—for both my students and my scholarship—associated with compliance work is one of the things I enjoy about working in the area.
Thursday, July 19, 2018
Something New, Something Old, and Something Borrowed
Writing in the compliance space has been extremely rewarding for many reasons, but today I will highlight the new, the old, and the borrowed.
Compliance is still considered new within legal scholarship. Its newness makes it an extremely fun area to write in, because it is often the case that you are one of the first, or one of very few, academics who have written on a particular topic. For me this has been most true, I think, with my work on corporate monitors (here, here, and here). There were certainly excellent articles (e.g., here, here, and here) written prior to my own work, but because there weren’t a large number or articles on the topic, I have been able to carve out a scholarly niche for myself. As a result, when it comes time to have an academic speak or write on the topic of monitors, I often get asked. I can’t always take on the opportunity, but it is fun to have something you are known for, and there is still quite a bit of room for that in the compliance area.
And yet, many of the issues important for compliance today aren’t at all new. A great deal of compliance scholarship is rooted in more established areas, like corporate law, corporate governance, and corporate criminal law. The iconic Caremark decision is a case about compliance (see this symposium). Within industry, compliance is an established field with a variety of “professional” organizations with hundreds of members. This is nice, because while compliance is “new” within legal scholarship, it is also “old” in a way that provides a strong foundation for the scholarly work being done. In one of my forthcoming articles, I use classic BA cases to serve as the basis for a new argument related to identifying the root-cause of compliance failures within organizations. All that to say, you aren’t starting from scratch when you identify a problem to write about.
Finally, because compliance is inherently interdisciplinary, it lends itself well to borrowing concepts from other fields. For example, many compliance scholars spend a fair amount of time drawing on behavioral ethics research (e.g. here and here), which is a literature primarily found within business schools. Additionally, I often find that when I present a paper someone in the audience from another discipline will suggest I read something that I have not come across, which turns out to be completely applicable to what I am writing about. A couple summers ago, for instance, someone made a relatively offhand remark about how I should look at interagency coordination literature, which is in the administrative law area, and that literature ended up serving as the theoretical basis for my paper.
* * *
All that to say, part of what I like about writing in the compliance space is that it is new, but not too new, while allowing the flexibility to learn about a number of topics from other areas of law.
Monday, July 16, 2018
Colb on the presumption of innocence
This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.
Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.
Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.
Friday, July 13, 2018
During bar study, July 4th is a big “you don’t have much time left” marker, and that is how I feel about the academic summer. As soon as the fireworks have died down, I start thinking about teaching. I love teaching. I love teaching Contracts to 1Ls, in part, because it is hard to imagine a greater privilege than being able to help introduce the law to a brand new set of students. But I also love teaching my Compliance course, because it allows the students to confront legal issues that are still being debated and determined.
Developing my Corporate Compliance & Ethics Seminar was both exciting and challenging. At the time I started teaching it there was one compliance casebook (it is excellent), but I wanted to use a different set of materials for a seminar. As many of you know, coming up with a set of materials for a course from scratch is time intensive, but it is also very rewarding, particularly when it overlaps with your scholarly interests.
I decided to break my course up into modules and to use case studies as a vehicle for learning each concept covered. Module I covers introductory materials like the Organizational Sentencing Guidelines, the importance of self-policing, as well as some background reading in behavioral ethics. In Module II, we go through different actors within compliance efforts, like regulators, gatekeepers, and whistleblowers. In Module III, we cover substantive compliance areas. I have traditionally covered the Foreign Corrupt Practices Act, Antitrust, the False Claims Act, and Title IX. In Module IV, I merge the theoretical concepts we have learned in class with some more practical concerns. This latter module has changed each year I’ve taught it, with last year focusing on conflicts of interest and sanctions for compliance officers. Finally, I weave in coverage of applicable Model Rules of Professional Conduct throughout the course.
In other words, there is a whole lot of information crammed into a 14 week course, but it has generally been quite successful. I use some classic exemplars for case studies—like Enron and Siemens—but I also use current events when I can. For example, during last year’s whistleblowers class, I put together materials from the Wells Fargo scandal. The mix of (i) case studies, (ii) theoretical background reading, and (iii) Model Rules has sparked intensive discussions about the role lawyers play within compliance efforts and where the boundaries should be when defining the scope of responsibility that lawyers should have for ensuring successful compliance programs are created and developed. It is fun to teach, and the students seem to enjoy the concepts learned. And because this is a class where the law is still quite dynamic, I’m looking forward to amending my antitrust and whistleblowers sections next week!
Monday, July 02, 2018
Many thanks to Howard for arranging to have me contribute as a guest blogger this month!
A few months before I began my tenure-track position in 2014, I was nervous that my seemingly diverse research interests were going to create problems for me down the line. I had interests in professional responsibility, corporate governance, workplace law, and organizational misconduct, which meant I did not feel like I “fit” neatly within a field of legal research. I knew that my research was all connected, but I felt like conveying that connection to others was sometimes a bit difficult. Thankfully, I had a wonderful conversation with a senior scholar who said something to the effect of: “You just research compliance. It is kind of new, so people may not realize it, but that is what you are doing.” These words were instantly clarifying and gratifying. I suppose I knew I was researching compliance issues, but not having met many scholars who defined themselves in that way at that time, I did not realize it was legitimate to actually use the compliance title to describe my work.
Today, compliance has developed into its own, albeit some might still say new, field. There are several law schools with centers, programs, or areas of study in compliance. The ALI is working on a set of Principles of the Law in Compliance, Enforcement, and Risk Management. And there are a variety of compliance-specific conferences that I can attend. Compliance is, however, an interdisciplinary field. Some people writing in the space describe themselves as corporate law scholars, some as criminal law scholars, and there is quite a bit of very good work being done by business school professors. Personally, while I self-identify as a compliance scholar, I do so with the caveat that I draw on research from several areas within legal scholarship and organizational behavior. More specifically, the underlying research question that motivates my scholarship asks how one might address dysfunctions within organizations in an effort to create more productive, healthy, and ethical environments within firms.
This month I’ll be blogging a bit about my compliance research, but also about the experience of working within a field that is (i) still emerging and (ii) interdisciplinary in scope. For me this has been a really exciting endeavor, but it does have its own set of challenges to work through. But for now, I will just wish you all an early Happy July 4th.
Tuesday, June 19, 2018
SCOTUS Term: Chavez-Mesa and Sentencing Appeals
Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison. That sentence was at the very bottom of the relevant Federal Sentencing Guideline range. After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months. The defendant sought a resentencing under the new, lower range. The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested. The judge did not provide any explanation for the new sentence. Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors. (A copy of the form can be found at the end of the opinion.)
The defendant was entitled to appeal his new sentence, and he did. Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision. As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)
[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.
But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case. Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision. Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”
I have no doubt that if this sentence had been outside of the Guidelines, then a majority of the Court would have said that an explanation was absolutely required. But instead we see this from the majority:
[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge's choice among points on a range will often simply reflect the judge's belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in § 3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant's sentence.
I think this may be the most blatant statement from the Court that we need only subject non-Guidelines sentences to appellate review. Previous decisions had been more circumspect about the idea that within-Guidelines sentences ought to receive essentially no appellate scrutiny. The Court’s decision to overtly embrace the idea in Chavez-Meza was not accompanied by any real attempt to reconcile differential appellate review with the holding in United States v. Booker, which rendered the Federal Sentencing Guidelines “advisory” in order to protect them from Sixth Amendment challenge.
What is more, the idea that the Federal Sentencing Guidelines represent what most judges think is an appropriate sentence is demonstrably false. (See pages 1490-91 of this article and pages 6-14 of this article for thorough explanations of why that statement is false.) As one of the original members of the U.S. Sentencing Commission, Justice Breyer knows that this statement is false. And he knows that the statement is especially untrue when it comes to sentencing ranges for drug crimes.
Chavez-Meza v. United States is yet another demonstration that the Supreme Court has utterly abandoned appellate review principles in its post-Booker sentencing cases.
Wednesday, June 06, 2018
SCOTUS Term: Hughes v. United States and Federal Sentencing
On June 4, the Supreme Court handed down its decision in Hughes v. United States. Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court. Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing. That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.
As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient. Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes. This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right. Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.” In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.” Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.
For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines. According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’” But the Peugh Court rejected this characterization of the guidelines. It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”
The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection. "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors." This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors.
While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite. In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine. In an opinion by Justice Thomas, the Court said they were not, in part because:
The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).
Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.
(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)
I had been waiting to see whether the Court would take that language from Beckles seriously. Hughes answers that question. This is Justice Kennedy’s majority opinion in Hughes:
[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.
Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether. Beckles isn’t mentioned at all in the majority opinion.
One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits. Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty. But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country. By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous. As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely. It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.
Tuesday, May 22, 2018
Redefining Strickland Prejudice after Weaver v. Massachusetts
At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.
"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."
Wednesday, May 09, 2018
Prejudice, Legal Realism, and the Right/Remedy Relationship
Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.
Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.
I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.
That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.
Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!
Wednesday, May 02, 2018
Prejudice Rules and Criminal Procedure Enforcement
Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.
By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.
In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.
Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?
I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!
(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)
Thursday, January 25, 2018
Judicial Impartiality at Sentencing
The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case. Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.
Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:
“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."
This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.
First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted. I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.
To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases. When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could. My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends. We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.
Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids. In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).
But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence. This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.
Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree. They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime. Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior. This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.
Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.” I disagree. The judge never represents the people in a criminal case; the prosecutor does. A judge’s duty to act fairly and impartially applies to “all duties of judicial office.” And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.
So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal. Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.
It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality. There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered. But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling. Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.
Wednesday, November 29, 2017
Carpenter – Post-Oral Argument Thoughts
The following guest post is by past guest-Prawf Andrew Ferguson (UDC).
Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States. Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse.
Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days. Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction. Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.
The reason for the buzz of interest is because the case presents a real legal puzzle. In a world where almost all of our digital devices work through third parties, the idea that law enforcement can simply obtain the data from our smart devices without a warrant means that our modern culture of self-surveillance has also potentially created a governmental surveillance state. At the same time, the third party records in Carpenter were owned, controlled, and used by the phone companies, raising questions of who owns this data, who controls it, and does sharing it for one purpose also mean sharing it for all other purposes including government investigation?
Much (almost instant) commentary has already been posted on this case, but two things are clear: first, the stakes for the future of the Fourth Amendment are quite high and demand an answer; and second, no Justice or advocate has a completely coherent answer to how the third party doctrine should apply in the digital age.
As to the stakes – almost any digital device you can imagine connects to third party providers (and creates third party records) in order to make the magic of “smart” devices happen. In an interconnected world filled with smartphones, smart cars, smart homes, and smart medical devices, ubiquitous communication by email, text, Tweet, or chat, you share your data with private companies. In a world of data trails, you are a potential police target at all times. Your smartphone, your smart car, your fitness band provide exact geo-locational clues to your whereabouts. Your location is being tracked, and police have recognized the utility of this information to prove criminal acts and patterns. Data trails provide a wealth of clues to past and present criminal activity.
As to the debate in the high court, the Supreme Court was, perhaps not surprisingly, divided. Questions of how to distinguish decades old precedent mixed with questions about new future-oriented technology. Hypotheticals about modern subpoena power mixed with queries about the Writs of Assistance. John Adams got a shout out. So did Stephen Henderson’s idea of a Fourth Amendment time machine. So did the empiricists’ amicus brief. Again, for Fourth Amendment nerds it was a party.
At least from the questions at oral argument, it can be intuited that some Justices wish to rethink the existing third party records doctrine, and others wish to see how to make it fit a digital age. (As a disclosure, I helped author one of the amicus briefs on behalf of Mr. Carpenter). Theories abounded, with no clear resolution of how the Justices would decide.
But one question – signaling perhaps a new way of thinking about the Fourth Amendment – seemed to trouble at least a few members of the Court – namely what rights (property based or otherwise) do the consumers of smart devices have over their own data. This is a huge question in the digital age. How does the Fourth Amendment protect smart data? How do we conceptualize who owns or controls the location data coming from Carpenter’s cell phone?
Here is how Justice Gorsuch framed the question to Carpenter’s lawyer Nathan Wessler of the ACLU:
JUSTICE GORSUCH: Mr. Wessler, I'm sorry, one quick question. Focusing on the property-based approach, putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? So say -- say a thief broke into T Mobile, stole this information and sought to make economic value of it. Would you have a conversion -- would your client have a conversion claim, for example, under state law? Have you explored that at all?
Similar questions were put to the government’s advocate, Michael Dreeben:
JUSTICE GORSUCH: Mr. Dreeben, I'd like to -- I'd like to drill down on that and return to Justice Kagan's question. You know, the facts here wind up looking a lot like Jones.
One thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach.
So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen.
Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?
The question likely arises from a law review article written by William Baude and James Stern in the Harvard Law Review called The Positive Law Model of the Fourth Amendment and in Richard Re’s response essay, The Positive law Floor. Both articles were cited in Carpenter’s brief and apparently caught the attention of the Court. But, as anyone who has read those thoughtful pieces knows, positive law when it comes to the Fourth Amendment gets confusing and contested pretty quickly in practice. It is not that the Positive Law model doesn’t offer some helpful ways to conceptualize the possible future rules, but it is hard to operationalize because positive law is messy.
So, in the spirit of the ongoing debate, I offer my own thoughts to the intuition that Justice Gorsuch was reaching for – that there is some property-like element to our smart data – but with a different conceptual hook.
My argument is not about positive law, but about the ownership/security interests we have in the data we create. Smart data (including location data) is partially ours, and because it comes from our effects, we can claim some control over it. The argument turns on the simple principle that the Fourth Amendment protects not simply the physical integrity of “persons, papers, homes, and effects” but also the information that comes from those constitutional derived sources (which would include Timothy Carpenter’s cell phone – as an effect – and its smart data). As I wrote in The “Smart” Fourth Amendment:
The Fourth Amendment--at its core--protects “informational security” …. Underlying the protection of persons, papers, homes, and effects and behind the expectation of privacy lies a desire to guard personal information from government intrusion.
In other words, it is not the corporal person, alone, that deserves protection, but also the information about the person. It is not the sheaf of papers, but the revealing personal details in those words that matter. It is not the physical home that is as important as what happens in the home. …
In this longer work on how the Fourth Amendment should adapt to new “smart” technologies, I developed the idea of “informational security” the principle of why the Fourth Amendment should protect smart data, again similar to Justice Gorsuch’s intuition that there is some property/security right to control the locational information created by individuals through the use of smartphones. [In the following excerpt from the article, I deleted the footnotes for easier reading.]
[I]nformational security is not an abstract concept, but arises from those particular constitutionally referenced sources. The Fourth Amendment secures someone, something, or somewhere. Information obtained from a constitutionally recognized source--effects, houses, persons, papers--gains derivative protection due to the source of the information. Focusing attention on a derivative constitutional source provides a useful and relatively easy guidepost to identify which types of information deserve constitutional protection.
Such derivative protection also covers information at some remove from the actual constitutionally protected interest. Charlie Katz's voice exited the closed glass door and was captured by the microphone taped on top of the phone booth. Antoine Jones's travel coordinates left the car and was captured by satellite technology. David Riley's smartphone communications data existed both on the phone and outside of it (in the cloud). Yet, the protections of the Constitution carried to these intangible, invisible, separate pieces of personal information. The constitutional protections of persons, houses, papers, and effects might, thus, be better characterized as protections of the information emanating from those constitutionally protected interests.
As laid out in more detail in the article, one can trace through the history of the Fourth Amendment and see this emphasis on protecting informational details arising from constitutionally protected sources (effects, homes, persons, papers). For questions about whether we have any property rights in our own smart data, this can be an important consideration.
For example, in terms of effects:
Central to the protection granted effects has been securing personal information about those effects. The sparse Founding Era literature suggests a focus on protecting objects which revealed something about the owner--religion, culture, status, or family associations. Searching and seizing a colonist's religious objects was not offensive simply because it interfered with property rights, but because searching revealed personal information about family and faith. Rummaging through bedroom drawers was not solely about the inviolate nature of property but, as the early history suggested, also about revealing information that might be contained in those drawers. Interpreted one way, the protection of effects has largely been the protection of what the personal effects revealed or contained.
Similarly, while Justice Scalia attempted to ground his Jones argument in property rights, the harm of affixing the GPS device was not in any real sense to physical property (the car was undamaged). The real harm was exposing the revealing personal data about the effect (car). Placing the device on the car might have been a seizure, but what made it a search was collecting the locational data intercepted by police (the “use of that device to monitor the vehicle's movements”). The “use” in that case was the capturing of data trails via satellite transmissions communicated by cell phone to a government computer. By using the car to track its owner, the government invaded the informational security of the effect. Justice Scalia's Jones analysis requires both parts--trespass plus use--and as Justice Alito argues in his concurrence, neither alone should constitute a search under Scalia's reasoning. In holding that this interception/collection was a Fourth Amendment search, Justice Scalia implicitly acknowledged the centrality of informational security. What mattered was securing the information coming from the effect, not just securing the effect itself.
The concurring Justices in Jones also focused on the personal information revealed from the GPS device. The reason a twenty-eight-day tracking of locational data became a search rested solely on the informational exposure that resulted. Such collection of personal data points (touching on associational, health, and other private travels) became of constitutional significance when the data trails could be revealing of private, personal actions. The expectation of privacy was not about expectations from the effect (the car) itself, but the information to be inferred about the travels of the car. This personal information essentially radiating off the car is what created the constitutional harm.
The article goes on to discuss the other constitutionally protected terms and the quirks and problems with the theory of informational security, but at its core the article offers a way to get to a property-oriented approach to data protection without diving into positive law. (Although, candidly, there are 84 pages of my article not excerpted that add a whole host of complexity to it).
So, if the Supreme Court is looking for a reason to protect smart data under the Fourth Amendment, it offers a starting point for debate. And, the best thing about the Carpenter argument day was that for one shining moment, everyone was focused on thinking about the Fourth Amendment and how it should apply to the digital age. Can’t wait for the decision.
Monday, October 30, 2017
Your Crim Pro Final
Friday, October 06, 2017
Cy Vance, Campaign Contributions, and Decisions Not to Prosecute
In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions. In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.
I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.
First, contributions in prosecutorial campaigns are worthy of significant scrutiny. We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete. I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule. Of the races I’ve looked at so far, lawyers represent the largest class of donors. This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers. But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA. Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?
That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest. Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office. But I’m not optimistic. Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not. Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing. Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.
To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual. Among other things, case-by-case explanations could be quite harmful to the individual in question. As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions. And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton). But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute. DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention.
Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions. The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute. But I’d be surprised if we ever get all of the stories. And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.
Because of this, I think that it is worth talking about reform in this area. Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections. And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues. If you have any other ideas, feel free to share them in the comments or to email me directly. My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.
Monday, September 25, 2017
Corpus Linguistics Re-Redux
Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss: Stephen Mouritsen posted a significant and substantive response to several of my questions. (His response can be found in this thread, and it is dated September 20). Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN. All three of these things have helped me further refine my views on corpus linguistics. But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.
First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics. They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do. A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term. But that is not what those who are advocating for corpus linguistics in the law say. They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more. Specifically, they say it can help judges identify the ordinary or plain meaning of the statute. In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.
It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation. In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation. While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question. Among other things, he said the following:
I disagree with your description of the approach that I (and my co-author) have described. I think corpus linguistics can be a very useful tool for providing information that can be relevant to some of the linguistically oriented questions that the law sometimes asks. I don’t think that it should be used to foreclose consideration of other evidence of meaning. While there may be methodological differences among the very few papers that apply a corpus approach, I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”
. . .
I think the dichotomy between, on the one hand, corpus linguistics as an interpretive methodology on par with textualism and purposivism (or even as you characterized it as “a new twist on textualism”), or, on the other hand, corpus linguistics as a source of “marginally” useful information, may not be an accurate way to frame the utility of linguistic corpora for interpretive problems. I think corpus linguistics can be a source of “very” useful information that can provide helpful insight in many cases in which the question that the law poses is a linguistically oriented question. Applications of the ordinary meaning canon are one example. And I don’t think that they are a necessarily “textualist” example. I can’t imagine that there is any jurisdiction in the United States that doesn’t use some variety of the plain or ordinary meaning canon of statutory interpretation, regardless of whether the judges who invoke it are textualists, purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback.
I can’t be sure, but these passages suggest that Mouritsen would like corpus linguistics to be something more than an interpretive tool, but something less than a fully formed theory of interpretation. But in saying that corpus linguistics ought to be considered “a source of ‘very’ useful information” for *any* method of statutory interpretation, including “purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback,” I find it difficult to understand how Mouritsen sees corpus linguistics as something *less than* a theory of statutory interpretation. A methodology that ought to be used no matter what your theory of interpretation is bigger than a “tool.”
To try and get at what, precisely Lee and Mouritsen are trying to accomplish, I asked a question in my last post about whether they think that a frequency analysis is required in statutory interpretation. Specifically, I asked whether Mouritsen was “backing away from a statement that he and Lee made last month on the Volokh Conspiracy that ‘a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words’”
[T]hat is not, in fact, what we said. We said: “[A] complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words, the (syntactic, semantic and pragmatic) context of an utterance, its historical usage and the speech community in which it was uttered.” When you take into account each of these factors you may often find that a highly specialized, infrequent sense of a word is the most likely candidate for ordinary meaning. You may find that the context clearly eliminates some or all but one of the senses of the word as possibilities. You may also find that the word or phrase in question has many potential uses in that same context, in which case it is difficult to make the case that any of the potential senses is the ordinary meaning. So the characterization of the approach in your prior post that “if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning,’” to me doesn’t capture the approach we have outlined in our paper. Yes, I think that the frequency with which a word gets used in a particular way, in a particular syntactic, semantic and (sometimes) pragmatic context that is similar to the legal text in question, in the speech community or linguistic register that is similar to the one of those subject to the statute, and from a similar time frame is a relevant consideration when determining the “ordinary meaning” of the words of a statute. As I noted before, “[t]o the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances.” To the extent you have such evidence, I think it would be useful in resolving the question of ordinary meaning.
Mouritsen is, of course, correct that the sentence he and Lee wrote for the Volokh Conspiracy included more than just frequency as a requirement for ordinary meaning. I thought I’d sufficiently acknowledged that by putting the period to end my sentence outside of the quotation marks. But in retrospect I should have indicated the additional text with an “. . .”
But I’m still left with my original question: Do Lee and Mouritsen think that a determination of ordinary meaning should *always* include a corpus frequency analysis? After all, Lee and Mourtisen presented the list of factors with the word “and”—that is to say, suggesting that *each* of the factors is necessary for what they called a “complete theory of ordinary meaning.” But in his response, Mouritsen talks about frequency as “a relevant consideration” and “useful in resolving the question of ordinary meaning.” So I’m afraid that I still don’t know whether Mouritsen thinks corpus linguistics is something that judges can consider if they feel like it, or if it is something judges ought to consider in every case (even if it isn’t dispositive).
This is the question I am trying to get at in my post (and to some extent in my paper)—What role do corpus linguists see frequency playing in statutory interpretation? I understand that corpus linguistics do not think that frequency will always tell us the meaning of a statutory term—though as I explain in the paper, if that frequency analysis is used by textualists, it may keep the courts from using other tools I think are better. But in order to understand corpus linguistics as a legal methodology rather than as a linguistic methodology, it is important to know the precise role that Lee, Mourtisen, and others think that frequency data should play. Is corpus linguistics a method for determining permissible/possible meanings, simply one tool that could be used to help determine ordinary meaning, or something that judges should always consider when choosing between various possible meanings? After Mouritsen’s comments on my previous posts, I’m just not sure. I don’t see him saying that corpus linguistics should be used merely to determine possible or permissible meanings. He thinks it can do more. But how much more is unclear.
Next, I want to return to the claim that corpus linguistics is a superior tool for discerning meaning because it is objective and scientific in nature. In my last post, I took issue with Mouritsen’s statements that corpus linguistics “findings are replicable and falsifiable.” Mouritsen responds:
You disagree with the characterization that the corpus linguistics approach to ordinary meaning is scientific. You acknowledge that the search that gathers the language data is replicable, but argue that “it is the analysis that matters” and different parties can draw (and have drawn) different conclusions from the same data. I simply don’t agree that the idea that people drawing different conclusions from the same data, or subjectively interpreting objective data, undermines the scientific nature of a corpus-based the inquiry. If we are going to classify as “unscientific” any form of inquiry where two people interpret the same data differently (and even subjectively), then we would have to condemn economics and every social science as “unscientific.” We may, in fact, have to shut down many upper level, theoretical courses in the “hard sciences” where subjective interpretation of data may lead different people to different theoretical conclusions. Disagreement about the interpretation of data is part of what Thomas Kuhn called the “route to normal science.” As I noted in my prior comment, corpus data won't “tell you what to do with th[e] information or whether that information is helpful for resolving certain types of questions. Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” The fact that two parties look at the same data and interpret the data differently doesn’t render the enterprise unscientific.
I am afraid that I have to object to how my argument is being characterized. My complaint is not that corpus linguistics is unscientific, but rather that the use of the terms “replicable and falsifiable” suggests that the method connotes the same objectivity as an experiment in the hard sciences. My post said:
I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics. He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.” I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does.
In the hard sciences, we place great stock in findings that are replicable and falsifiable. If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world. But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation. That is because a corpus *search* is replicable, but the search itself doesn’t tell us anything about usage/meaning. It is the *analysis* that matters. To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries. But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.
I don’t think that it is fair to characterize this objection to corpus linguistics as a claim that an enterprise is “unscientific” if “two parties look at the same data and interpret the data differently.” Instead, my criticism is that while a corpus search is objective and replicable, the frequency analysis itself is highly subjective. And the subjective nature of the analysis undercuts the promise of corpus linguistics as an objective method for determining ordinary meaning—something that Mouritsen has claimed in the past.
Let me give an example of how non-objective a frequency analysis can be using the new corpus linguistics paper on the meaning of the word “emoluments” in the Constitution. In their methodological section, the two authors explicitly note that the analysis of corpus search results is subjective, and thus they realized that they were likely to code results differently. In order to facilitate consistent coding, they practiced: that is to say, they independently coded material and then met to discuss why they had arrived at particular decisions. After multiple rounds of these practice coding sessions, they were only agreeing on how to code a particular result 70% of the time. This 30% disagreement rate after several rounds of practice, in my mind, severely undercuts the claim that corpus linguistics frequency determinations are “replicable and falsifiable” findings.
To be fair to Mouritsen, he backs away from the idea that corpus linguistics can tell us when a judge is “transparently wrong.” But he sticks to his guns about the benefits of corpus linguistics. He says
the corpus data gives some content to these differing conceptions of ordinary meaning. It forces the judges to show their work and gives a transparent account of what each opinion appears to mean by “ordinary meaning.” This is in contrast to what happens when a court fails to explain what they mean by ordinary meaning and merely invokes the canon and it is not what happens when courts simply cite a dictionary (given that dictionaries don’t typically provide information about ordinary meaning and are typically cited, as James Brudney and Lawrence Baum pointed out in their article “Oasis or Mirage,” merely as window dressing).
I am unconvinced that we need corpus linguistics in order to ensure that judges engage with each other and transparently explain why they think a particular term ought to be read to have a particular meaning. We already see a significant amount of back and forth between judges when they disagree about meaning—far more than we saw in the mid-twentieth century. So I don’t think that we need corpus results in order for judges to explain their interpretive decisions; we just need a culture of reasoned explanation in judicial opinions.
But even if Mouritsen is right that corpus linguistics will cause judges to engage with each other more, that does not make corpus linguistics more attractive to me. That is because I don’t think that a dispute over how to interpret frequency results of a corpus search would improve the quality of an interpretive dispute. For one thing, as I explained at length in my essay , I don’t think that frequency is a good measure or method for determining the ordinary meaning of criminal laws. For another, (also explained at length in the essay) I think that judges have a significant constitutional role to play in the interpretation of law—at least the criminal law—and that role is likely to be neglected if judges get caught up in how to appropriately categorize and count database results. And given that corpus linguistics analysis is so subjective, I don’t see what we add to the enterprise by having judges fight about how to analyze the results of a corpus search. I’d rather they engage directly with the statute and how the scope of the statute affects individual rights.
Although this post is already long enough, let me address some of the comments that Neal Goldfarb made in his response to my paper. I (of course) agree with Neal that usage is not distinct from meaning, but rather meaning arises from usage. But while usage is what determines permissible or possible meanings, those who advocate for corpus linguistics in the law go a step further: They tell us that frequency of usage can help us determine the meaning of an otherwise unclear term. Here is how Neal explains the argument in his blog post on meaning:
It seems reasonable to expect that the higher the frequency with which a particular sense is associated with a particular type of context, the more likely it is that when the word is used in similar contexts in the future will be understood to have the same meaning. In this way of looking at the issue, the corpus data is seen as a rough representation of the input—what people hear and read—that shapes people’s understanding of word meanings.
It is known that the frequencies with which specific patterns and constructions occur has an effect on how language is learned and mentally processed. It doesn’t strike me as a big leap from that to the conclusion that the strength of the association between the use of a word in a particular type of context will depend at least in part on how frequently one encounters that word being used, in that type of context, to express that meaning. Or at least that seems reasonable if the idea of “types of context” can be adequately defined.
I will get to that, but first I need to note that I’m extrapolating from what I know of the literature, not reporting on what it says; I can’t point to any work that has been done on this specific question. Nevertheless, the assumption I’m discussing is, as far as I know, consistent with the fact that frequency effects are so widespread.
Importantly, Neal tells us that the linguistics literature does not speak to the fundamental premise of corpus linguistics and the law—namely, whether the frequency with which a particular word is used a particular way will affect how a listener is likely to understand the term when it appears in a statute. Neal admits that he is making a leap from the literature and relying on his own common sense, and I sincerely appreciate Neal’s transparency about the assumptions that he is making. But I will add that the assumptions that Neal makes do not address my concerns about notice. Simply put, why would we think that frequency data would capture an average citizen’s intuitions about a statute’s meaning, but not a judge’s?
I can guess that Neal would say that my concerns about notice fail to appreciate the difference between interpretation and comprehension—the subject of his first response to my paper. As he explains in that post “nobody is suggesting that corpus linguistics be used for investigating those kinds of intuitions. The whole purpose of using corpus linguistics is to learn things that aren’t accessible to intuition.” But here is why I base my critique of corpus linguistics in the criminal law: The criminal law does care about an average person’s ability to read a statute and articulate what it allows and what it prohibits. If corpus linguistics is going to give us a different answer to the question “what does this criminal statute prohibit” than the answer we expect, then there are real problems under the Due Process Clause. That is because one of the fundamental limitations on criminal statutes in modern America is that they must give people sufficient notice about what a particular law covers and what falls outside of it. If corpus linguistics is valuable precisely because it gives us different answers than our intuition about statutory meaning, then I think it poses a significant threat to the need for notice in the interpretation of criminal laws.
Now maybe Neal and other corpus linguists would like to argue about what the Due Process Clause requires for the interpretation of criminal laws. Maybe they do not think that judges ought to ask how an ordinary citizen is likely to interpret the scope of a criminal statute. I’d be quite happy to have that discussion. Frankly, if lawyers, judges, and law professors are going to say that corpus linguistics ought to play a role in statutory interpretation, I think that they need to have these discussions. We aren’t linguists. Our inquiry is not simply how might we better understand how people use words. Our inquiry is how should we interpret statutes. In advocating for the use of corpus linguistics in the law, that is what we need to be most focused on. We can’t push that question down the road and say that “best practices” will develop over time.
While I find much to disagree with in what Stephen and Neal have written, I can’t stress enough how much I appreciate them taking the time and effort to respond to my paper and my blog posts. The engagement has allowed me to better understand and articulate the problems that I see with corpus linguistics and the criminal law. And it represents the best type of scholarly interaction—fair, dispassionate, and substantive. And because of their helpful and thoughtful comments, I hope to have another post soon about context and corpus linguistics.
Monday, September 18, 2017
Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing
Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas. The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing. On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.
Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence. This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims. The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard. The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard. But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.
Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th. That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer. Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term.
For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court. State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country. But that is not reflected in the cases that the Supreme Court takes. In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.
Of course, any cert petition faces an uphill battle. The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.
Monday, September 11, 2017
More on Corpus Linguistics and the Criminal Law
When people ask me why I became a law professor, I have an endless list of reasons at my disposal: Teaching is an outrageous amount of fun. I get paid to write and think about interesting ideas. No one ever expects me to wear a pants suit. But a major reason that I enjoy being a law professor is that I absolutely love to disagree with people.
So imagine my delight when I saw how many comments my original post on Corpus Linguistics and the Criminal Law received. Not only did many of the commenters engage with my essay, but the commenters included Steven Mouritsen (who wrote the first law review article suggesting that judges conduct corpus linguistics analyses and who has a forthcoming article with Justice Thomas Lee in the Yale Law Journal on the topic), Neal Goldfarb (who runs a blog on Law & Linguistics and who attended the 2107 BYU corpus linguistics symposium), and Brian Slocum (who also attended the BYU conference and whose co-authored paper formed the basis for my essay advocating against the use of corpus linguistics to interpret criminal laws )
The comments are all quite good, and many of them have helped me refine some of my concerns with corpus linguistics. But I also want to push back against others.
First, the comments appear to reveal a rather stark divide in the corpus linguistics community: While some are pushing corpus linguistics analysis as a new method of statutory interpretation, others are far more modest about what corpus linguistics can provide. In his comment, Brian Slocum repeated the modest approach that he and his co-author take in their paper. Neal Goldfarb (who was kind enough to submit multiple comments) said that “corpus linguistics can have a very significant impact on issues of statutory interpretation,” but he says that his use of corpus linguistics in not intended “to remake the theoretical framework of legal interpretation.”
Having read Brian Slocum’s most recent essay, I was already aware that not all scholars who conduct corpus analyses necessarily endorse it as a method of statutory interpretation. But the comments thread suggested that even corpus linguistics staunchest legal supporters may have a more nuanced view of how the tool is to be employed. In particular, Steven Mouritsen seemed uncomfortable with my characterization of corpus linguistics as a method of statutory interpretation that treats ordinary meaning as an empirical question and then answers that question with evidence of how frequently a term is used a particular way. I had read his previous work as suggesting that corpus linguistics was not merely an additional tool that judges might wish to employ (or not, whatever they might wish), but rather as a new method of interpretation—a variation on textualism. But as I’ve read and re-read his comments, I am actually not so sure that he is backing away from (what I read as) previous methodological arguments. In particular, his comment includes the following passage:
“I don’t think anyone is advocating (I certainly don’t advocate) merely characterizing the most frequent sense of a word as the ordinary meaning. That would be arbitrary. But corpus linguistics can allow you to examine the way in which a word is used in a given syntactic, semantic, and (sometimes) pragmatic context, in the speech or writing from a given speech community or linguistic register, and from a given time period. To the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances. This is a presumption that I would think should be rebuttable where there is compelling evidence that an alternative sense of the word or phrase was intended. And I don’t advocate (and I don’t think anyone in the pro-corpus camp advocates) foreclosing consideration of other evidence of meaning simply because the corpus data suggests a particular answer.”
It is a little unclear to me whether Mouritsen is backing away from a statement that he and Lee made last month on the Volokh Conspiracy that “a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words” (emphasis mine). I don’t think that he is, because he is saying that the corpus analysis would create a “rebuttable presumption.” But nonetheless, it would be helpful if he (or perhaps he and Lee) could clarify whether they believe (a) that corpus linguistics searches and analyses ought to routinely be part of statutory interpretation or if their position is simply that corpus linguistics might sometimes be useful, and (b) whether, in addition to adding corpus linguistics data to the “plain meaning” step of textualism, whether they are advocating for any additional interpretive changes.
Second, I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics. He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.” I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does.
In the hard sciences, we place great stock in findings that are replicable and falsifiable. If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world. But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation. That is because a corpus search is replicable, but the search itself doesn’t tell us anything about usage/meaning. It is the analysis that matters. To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries. But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.
Don’t believe me? Check out the Michigan Supreme Court’s opinions in People v. Harris, 885 N.W.2d 832 (Mich. 2016). The majority and the dissent come to the precisely opposite conclusions about the “ordinary meaning” of a statutory term based on the same corpus data. The corpus data does not (at least not as far as I can see) tell us which of the Justices in that case were “transparently wrong.” At the very least, the Michigan Supreme Court Justices didn't find the matter transparent.
Third, I am still left with my same concerns about notice and accountability that I raised in my original post (and which are fleshed out in more detail in the paper itself). Several commenters pushed back a bit on these concerns. And I’ll confess that I am quite certain that it is my role as a criminal law professor that makes these concerns so salient for me. Some commenters suggested that the corpus database is more likely to mimic public intuitions about meaning because the public reads the newspapers and magazines that make up the corpus. But judges read those very same sources. Why would the corpus database be an accurate reflection of a non-judge’s linguistic intuition, but not a judge’s intuition? I don’t disagree with those who say that corpus linguistics databases capture more information about language usage than does a judge’s own status as an English speaker. But whether the corpus more accurately captures the average person’s linguistic prototypes than does judicial interpretation is an empirical question about which I have seen no real data.
Mouritsen offers a few responses to my notice concerns. But I don’t find them very persuasive. He says he prefers the bean counting approach of corpus linguistics to judicial intuition because intuition has led to cases like Muscarello, which he finds arbitrary. I agree that Muscarello was wrongly decided. But we don’t need corpus data to know that the defendant’s interpretation of “carry” was entirely plausible (if not more plausible) and thus he should have benefited from the rule of lenity—Justice Scalia’s dissent did an excellent job of doing just this. Mourtisen acts as though corpus linguistics is a check on government power because it would have led to a different result in Muscarello, and he also points out that several other cases he has analyzed would have come out in the defendants’ favor. This approach misunderstands my critique. I made a structural argument about the separation of powers and how it requires a substantive role for judges in statutory interpretation. That structural argument derives its force and legitimacy from the Constitution, not whether more cases will be decided in favor of defendants. The argument is about constitutional design and it is about requiring judges to take responsibility for the substance of their decisions. I do not think it is a coincidence that Justice Breyer took refuge in a dictionary in Muscarello. He knew that the dissent’s interpretation of the term was more sensible and accepted; but by clothing his holding in “objective” analysis—like using dictionaries—he could avoid responsibility for the consequences of his decision.
Mouritsen does not deny that he is trying to check government power by decreasing the substantive role of judges to use their own judgment in interpreting statutes. But he is trying to avoid the notice and accountability concerns by claiming that corpus linguistics will lead to better outcomes for defendants. In particular, he claims that corpus linguistics will lead more judges to conclude that a term is ambiguous and thus requires the rule of lenity. Maybe that will happen over time. But I honestly doubt it. The Michigan Supreme Court split over whether a corpus search supported two inconsistent interpretations—neither side saw ambiguity. And I find Justice Lee’s decision in State v. Rasabout, 356 P.3d 1258 (Utah 2015), entirely too similar. He found twelve examples of one meaning of a term and one example of another meaning in a corpus analysis of 81 examples. So 68 out of 81 usages did not clearly fall within one meaning or another. Did he find that the term was ambiguous? No. He went on to further analyze what he admitted were unclear usages in order to try and fit them into one of the two contested meanings in the case. I find it difficult to read such a corpus analysis and think that Mouritsen is correct that corpus linguistics will result in more findings of ambiguity. (And, although I’m not a behavioral scientist, I wonder whether the representativeness heuristic tells us that corpus linguistics data is unlikely to lead judges to find ambiguity. I’d be interested to hear from those who are more familiar with behavioral economics—am I wrong to think that heuristic bears on this issue?)
Finally, let me emphasize that I understand why corpus linguistics is so attractive. Not only does it appeal to our current fascination with big data, but it also taps into dissatisfaction with the current textualist regime. My critique of corpus linguistics should not be read as a defense of the current approach to interpreting criminal statutes. I think that judges need to do a better job fulfilling their historical role as gatekeeper for punishment decisions. As I note in the essay, I advocate for a much more robust rule of lenity and more expanded and consistent clear statement rules. If these tools were expanded, they could bring about the predictability and objectivity that corpus linguistics appears to offer. And they would do so while promoting notice and accountability.
Wednesday, September 06, 2017
Corpus Linguistics and Criminal Law
In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference. The panel promoted a new method for statutory interpretation: corpus linguistics. Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court. Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.
It is easy to see why corpus linguistics is appealing. It offers a new twist on textualism. It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry. At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term. And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction. The problem is, judges often disagree over what the plain or ordinary meaning of a term is. As a result, textualism sometimes looks unpredictable or subjective.
Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search. The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.
I was fortunate enough to be invited to the 2017 corpus linguistics conference at BYU. I wasn’t a natural person to invite to the conference—I’m not an expert in statutory interpretation, and my undergraduate degree in linguistics did not prepare me for the sorts of analyses that corpus linguistics requires. Nonetheless, I was intrigued by the Fed Soc panel, and so I was eager to learn more at the BYU conference. But as I read the papers for the conference, and as I prepared my remarks as a commentor, I found myself more and more concerned about corpus linguistics as a methodology. In particular, I found myself concerned about it being used to interpret criminal laws. Corpus linguistics raised some of the problems that I had confronted in my past research on the void-for-vagueness doctrine, and it touched on many of the issues that I was grappling with in a new project about criminal common law. After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.
I lay my concerns out more fully in this short essay.
As my essay explains, in relying on frequency data, corpus linguistics undermines notice and accountability. Unless legislators and ordinary citizens were to conduct their own frequency analysis—something that appears far too complex for a non-lawyer, if not a non-linguist, to do—then the public will not know how courts will interpret statutory terms. And if people do not have advanced notice of the scope of criminal laws, then we may not have fulfilled the promise of due process. Legislative accountability is also undermined by corpus linguistics. Legislators could pass laws that will be interpreted differently than their constituents might understand them, and so constituents can’t hold their representatives responsible for their policy choices.
Corpus linguistics also doesn’t solve the problems it sets out to. There does not appear to be a single, correct way to conduct a database search and analysis. So corpus linguistics will engender litigation over methodology and dueling expert credentials. This not only suggests that corpus linguistics cannot fulfill its promise of greater predictability and objectivity. It also raises questions of judicial accountability. Judges will be able to skirt responsibility for their interpretations of what is legal or illegal by reframing the question as a dispute over database searches rather than a decision about punishment.
Finally, I worry that corpus linguistics seems so attractive because modern legal thought has rejected the idea that statutory interpretation is anything other than a ministerial task. Before the rise of textualism no one doubted that judges had a substantive role to play in statutory interpretation—especially the interpretation of criminal laws. Indeed, the standard separation of powers story that is told about criminal prosecutions is that we have divided the punishment power between three branches in order to protect and maximize individual liberty. A person will be punished only if the legislature decides to outlaw certain behavior, the executive decides to indict and prosecute a particular individual, and the judiciary agrees that the individual’s conduct falls within the clear legislative language. When the Constitution was written, judges routinely acted as a normative gatekeeper for punishment, construing statutes narrowly to promote common law values even when the legislature seemed to prefer a broader interpretation.
Don’t get me wrong, I’m not saying that we ought to abandon textualism. In the essay I offer some thoughts on how to improve statutory interpretation. But I *am* saying that an interpretive methodology that assumes a judge’s professional judgment is an evil to be avoided in statutory interpretation has no place in the criminal law. Language can never be crystal clear. And I would prefer that the people entrusted with deciding the scope of that language saw their task for the important check on government power that it is, rather than as bean counting.
Monday, June 26, 2017
SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel
As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge. Petitioner was a lawful permanent resident who had been indicted on drug charges. His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time. Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation. Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.
The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance. There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different. Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming. If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.
In a 6-2 decision, the Supreme Court reversed. In the majority opinion, Chief Justice Roberts explained that the prejudice here was the Petitioner’s forfeiture of the right to trial by pleading guilty. In his dissent, Justice Thomas (joined by Justice Alito) argued that prejudice requires not only a showing that the defendant would have proceeded to trial, but also that the defendant would have been better off going to trial. Both the majority and the dissent supported their positions with language from the Court’s previous ineffective assistance cases, none of which clearly settled this issue.
Although I don’t think that the Court’s previous opinions necessarily settled this question, I do think the majority was nonetheless correct. First, there are good reasons not to make the prejudice standard any more difficult to satisfy than it already is. As many others have noted, the prejudice prong of ineffective assistance of counsel is notoriously difficult to satisfy. And there is a reasonable argument to be made that it unfairly limits Sixth Amendment rights to the innocent.
Second, the dissent’s prejudice standard would have been impossible for most defendants to satisfy. A defendant who is deciding whether to plead guilty often does so without access to information that may have helped her assess her likelihood of success at trial. As a result, a defendant who seeks to challenge the effectiveness of plea bargain counsel is unlikely to have access to information that would indicate that she might have prevailed at trial.
Finally, and most importantly, the majority opinion (at least implicitly) acknowledges the importance of the right to a jury trial. Our criminal justice system is essentially a system of pleas, rather than a system of trials. Substantive criminal law and criminal procedure are currently designed to ensure that the vast majority of defendants accept a guilty plea rather than insist upon their right to trial. Implicit in our system of pleas is the idea that ours has become an administrative criminal justice system, more concerned about processing large numbers of defendants rather than ensuring justice through adversarial testing. I happen to believe that the process of trial has its own value, not only to defendants, but also to society as a whole. In saying that the deprivation of the proceeding of a jury trial is itself prejudice, the majority lends some support to that view---a view that used to be considered a bedrock principle in this country.
Thursday, June 08, 2017
Constitutional Powers and Crimes
For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation. The possible crime here is obstruction of justice. And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution. Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation.
Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive.
It is well established that government actors can be convicted for inappropriately exercising their governmental powers. Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.
Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo. And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason. But this argument goes too far.
In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons. That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin. The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.
Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit. But I’m not sure that’s a particularly good response. For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes. For another, obstruction of justice is one of many laws that place limits on what the President may or may not do. Bribery is also a legislative limitation, rather than a constitutional limitation. Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power. But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.
In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited. To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic). Nor am I making a statutory claim about whether this President has obstructed justice. I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.
Sunday, June 04, 2017
SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine
One of the decisions that I am eagerly awaiting is Sessions v. Dimaya. Dimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions. Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case, Johnson v. United States. As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.
The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.
To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine. But we have seen two opinions in as many years from the Court that have muddied the water even further. The first of those decisions was Johnson. Johnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments. Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why. This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.
The second problematic vagueness decision came earlier this Term in Beckles v. United States. Beckles involved a challenge to a federal sentencing guideline that included language that was identical to the language that was deemed unconstitutionally vague in Johnson. But the Beckles Court held that the vagueness doctrine did not extend to the federal sentencing guidelines. The Beckles decision could be criticized on a number of grounds (fodder, I suppose, for another post), but it also further muddied the water surrounding the vagueness doctrine. One of the reasons that Beckles Court gave for not allowing vagueness challenges to the federal sentencing guideline was that advisory sentencing guidelines greatly resemble fully discretionary sentencing systems. Because no court has ever held that a system that gives judges no sentencing guidance is impermissibly vague, the Beckles Court concluded that a system that gives some guidance must be acceptable.
While a majority of Justices felt that the discretion given to judges was enough to dismiss the constitutional challenge, this reasoning raises more questions than it answers. The similarity between advisory guidelines and unfettered sentencing discretion is not obviously a reason to dismiss vagueness challenges. After all, the Supreme Court has repeatedly held that the danger of arbitrary and discriminatory enforcement created by “unfettered discretion” is the main reason why vague statutes are unconstitutional. Thus, one would think that the more discretion is present, the more due process scrutiny ought to apply.
Perhaps Dimaya will bring some clarity to the vagueness doctrine. Or perhaps the Court will dodge the vagueness issue by concluding that, because this challenge arose in the context of an immigration case, the vagueness doctrine does not apply with equal force. I’m interested to find out.
Tuesday, May 30, 2017
SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions
The Supreme Court issued four opinions today. One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question. But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.
Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States. Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator. The law defines a minor as any person under 18. Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16. The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.
Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?” Those are excellent questions. And the answers are less than satisfying. There is no section of the U.S. Code where you can find “generic federal definitions” of crimes. Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions. And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws. Nor does Congress define the criminal conduct or elements that trigger the federal laws. Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not. And, as you might imagine, sorting these things out is far from easy. It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.
If you take a step back and think about why Congress is writing such imprecise statutes, you’ll realize that it is because Congress is trying to expand the reach of its laws to capture information from state courts. In recent decades, the federal criminal law has expanded. The federal government has sought to regulate not only those people who commit federal crimes, but also those who are convicted of state crimes. Federal law seeks to deport people who have committed state crimes, it prohibits people from possessing firearms based on state court convictions, and it uses those convictions to drastically increase punishment for people who are convicted of federal crimes. As the federal government has increased its criminal law role, it has leaned heavily on state court convictions. But states have written very different criminal laws. These differences are traceable to the idea that each state faces different problems and has different priorities. Congress’s decision to try to use those state laws as the scaffold for a nation-wide criminal law not only raises questions whether Congress is usurping the role of the states in shaping criminal law, but it also ignores the messy reality of state law differences.
These laws also highlight the limits of Congress’s power. It is not easy for Congress to draft and enact legislation. So it would be next to impossible for Congress to list all of the specific state statutes that it would want to trigger a federal law, and then to continuously pass legislation to update that list as states change their own laws. But Congress’s decision to use imprecise phrases like “sexual abuse of a minor” raises its own problems. Two Terms ago, in Johnson v. United States, the Supreme Court held that a portion of one of these federal laws was unconstitutionally vague. A vagueness challenge to a similar law is pending before the Court right now in Sessions v. Dimaya.
To be clear, the Supreme Court is not always hostile to federal laws that incorporate state court convictions. And it often rules for the government in those cases even when a reasonable reading supports a defendant-petitioner. But at least today we can add Esquivel-Quintana v. Sessions to the list of cases in which the courts have pushed back against these federal laws.
Friday, May 19, 2017
Questioning DOJ Independence
Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration. Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.
Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration. Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive. I am not so sure.
To the extent that the FBI is independent from the administration, the FBI is not democratically accountable. Of course, most democratic accountability in the Executive Branch is indirect. The primary democratic check on executive officials is the presidential election. The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official. But indirect accountability comes at a price: independence from the administration.
Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings. The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term. One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case. Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials. And a third said that he had been fired for refusing to bring obscenity charges against internet providers. The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.”
The panel was fascinating, but I had the same question then that I do now: If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons. How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason?
Because I apparently do not lack self-confidence, I asked the panelists this question. And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits. At the time, I thought that this was a satisfying answer. But now I am not so sure.
When it comes to police and prosecution, policy statements don’t seem to mean very much. Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general. And they invariably leave room for professional judgment. In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances. To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.
Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence. Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play. But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.
Saturday, March 04, 2017
Thanks -- and Predicting the End of One Marijuana Prohibition
Thanks to Howard and the other Prawfs for hosting me! I’ve enjoyed writing about a few of the legal topics now confronting state marijuana reforms.
Marijuana legalization has been one of the most notable law reform movements of the past two decades. The chart below, reprinted from Chapter 1 of my Marijuana Law, Policy, and Authority casebook, displays the proliferation of three types of state legalization from 1996 to 2016.
In this final post, I want to hazard a (new) guess as to when medical marijuana will be legal in all fifty states. I say “new” guess because a few years ago, using data from 1996-2013, I boldly(?!) predicted that medical marijuana would be legal in all 50 states by . . . 2039. Based on the quickening pace of reforms, I now predict that medical marijuana will be legal in all states by . . . 2032, or roughly 46 years after California got the ball rolling. (To put that timeline in historical perspective, it took about 40 years for all of the states to repeal their prohibitions on alcohol.)
Tuesday, February 14, 2017
Could Jeff Sessions Stifle State Marijuana Reforms?
Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.” The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think a challenge to most reforms would clearly fail.)
However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.First, since 2014, Congress has barred the DOJ from using appropriated funds “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The quoted language has been inserted in riders to omnibus spending bills for the last couple of budget cycles. Although the rider language is not terribly clear, the Ninth Circuit has interpreted it as barring the DOJ from prosecuting anyone for actions that comport with state medical marijuana laws. This means that, at least until the current rider expires later this year, the DOJ probably couldn’t initiate legal action against state licensed medical marijuana suppliers. Even recreational marijuana suppliers might be off limits under the Ninth Circuit ruling if they also serve the medical market (as they do in several states) -- though that's an untested proposition.
Second, even if AG Sessions demands a crackdown on marijuana, it’s not clear that the 93 United States Attorneys – i.e., the ones who can actually bring prosecutions – will necessarily oblige him. For the time being, many of those USAs are holdovers from the Obama Administration, and they might not share Sessions’ antipathy toward marijuana. But even after Trump has a chance to replace them, there is no guarantee that his USAs would necessarily heed Sessions’ demands regarding marijuana enforcement. USAs have a degree of independence from the AG and central DOJ. And if asked to do something that is locally unpopular – like crack down on the marijuana industry in a legalization state – some USAs might balk, either because they believe it's the right thing to do or because they aspire to local political office and fear alienating large local constituencies who support state reforms.
Third, the DOJ has very limited resources. The DEA, the unit within the DOJ that has primary responsibility for enforcing federal drug laws, has only about 5,500 agents total – and they’re responsible for policing all drugs (licit and illicit), worldwide. As I have written elsewhere, even before the Obama Administration first adopted a deferential enforcement policy toward marijuana in 2009, the DOJ couldn't take on all of the marijuana cases that had previously been handled by reform states. The task facing the DOJ has not gotten any easier in the intervening years. There are now 44 states (including DC) that have legalized some form of marijuana, including 29 that have full-fledged medical marijuana laws (and 9 of those have recreational marijuana laws). That’s an awful lot of ground for the DOJ to cover with only limited resources, especially when the agency is also attempting to crack down on various other offenses (immigration, etc.). To be sure, the DOJ could (eventually) make life difficult for some marijuana suppliers. But I think the number of prosecutions (and other legal actions) the agency could undertake would be too small to make much of a dent in the state legalized marijuana market (even given harsh sanctions).
Ultimately, AG Sessions might be able to forestall reforms at the federal level –– assuming he has some clout in Congress. For example, he might be able to block or at least delay passage of federal legislation that would enable banking with the marijuana industry. However, I don’t think Sessions will be able to stifle state marijuana reforms.
Wednesday, February 08, 2017
Must Police Return Wrongfully Seized Marijuana?
Imagine the following scenario. P is a local police officer who stops D for speeding. In the course of a consensual search of D’s car, P finds a small bag of marijuana. State law bans the simple possession of marijuana by most people, so P seizes the drug. However, D subsequently convinces a judge that he was allowed by state law to possess the marijuana (say, because he’s a qualified patient under the state’s medical marijuana law). Following the judge’s ruling, D asks P to return the marijuana. Must P do so?
Many states explicitly require the police to return marijuana they have wrongfully (as a matter of state law) seized from individuals like D. But the police sometimes refuse to obey such requirements. The police claim that the act of returning marijuana constitutes a drug distribution offense under 21 U.S.C. Section 841, since federal law defines “distribution” as any transfer of a banned substance. Hence, a state law requiring police to return marijuana poses a direct conflict with and is thereby preempted by federal law.
Ah, but there is a twist. 21 U.S.C. section 885(d) expressly immunizes state police from “civil or criminal liability” under federal drug laws if they are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” The provision was likely adopted to shield police from liability for participating in sting operations. But marijuana users have claimed that Section 885(d) also applies to other scenarios, including the return of marijuana, and thereby resolves any conflict between state and federal law.Who is right? There are at least four possible ways of resolving these disputes, none of which is entirely satisfactory:
- Adopt a purposivist interpretation of Section 885(d) and side with the police. Just last month, for example, the Colorado Supreme Court found that Section 885(d) would not immunize state police for returning seized marijuana; thus, state police could ignore a state law that required them to do so. Colorado v. Crouse. This interpretation is arguably consistent with the purpose of Section 885(d), but it is difficult to reconcile with the provision’s text. The Crouse court, for example, suggested that a police officer would not be “lawfully engaged in the enforcement” of state law if she violated federal law—i.e., by distributing marijuana. But the same could be said of the undercover police officer who sells marijuana during a sting operation.
- Adopt a literal interpretation of Section 885(d) and side with users. In one case, for example, a California appellate court found that Section 885(d) plainly shielded state police from federal criminal liability for returning marijuana to a medical marijuana patient. City of Garden Grove v. Kha. The Kha court reasoned that Section 885(d) “makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties. . . . There can be little question the [City] police would be acting pursuant to their official duties, were they to comply with the trial court’s order to return [the citizen’s] marijuana to him.” This interpretation arguably comports with the text of Section 885(d) (and prevents state agents from undermining state marijuana reforms). But it difficult to reconcile with the text of another provision of the Controlled Substances Act. 21 U.S.C. Section 903 expressly preempts any state law that poses a “positive conflict” with the CSA. To be sure, Congress might not care if state police return marijuana to the same person from whom they seized it. But interpreted literally, Section 885(d) might block preemption of other, more controversial state actions. Imagine, for example, that a state orders its agents to produce and sell marijuana. Indeed, in the early 2000s, the City of Oakland, California, thought it could immunize a local medical marijuana dispensary by deputizing its owner (Ed Rosenthal) and ordering him to supply the needs of the City's medical marijuana patients. When Rosenthal was later prosecuted by the federal government, the district court rejected his assertion of Section 885(d) immunity, though in so doing, it (like the Crouse court) had to rely on a questionable reading of Section 885(d). United States v. Rosenthal.
- Find that the anti-commandeering rule empowers state agents to return marijuana. The idea is that if Congress can’t force state police to seize marijuana in the first instance, it also shouldn’t be allowed to force them to retain the drug if they no longer wish to hold it. To be sure, Congress can preempt some state actions that violate federal law – say, growing marijuana at a state-run farm. But there has to be some limit to preemption if the anti-commandeering rule is to do any work. Otherwise, as I’ve argued elsewhere (p. 1446-49), Congress could prevent states from voting to repeal their marijuana bans, releasing prisoners held on marijuana charges, etc. (both of which entail actions of some sort). So as long as state police do no more than restore the proverbial state of nature (say, by returning marijuana to its original owner), Congress may not be able to stop them. (I sketched this argument in the article above (p. 1459-60).) If a court followed this approach, it could sidestep the 885(d) issue and users would win.
- Find that the police lack standing to challenge state duties as preempted. The likelihood that any police officer would actually be prosecuted for returning marijuana is almost zero (because of DOJ enforcement memoranda, congressional spending restrictions, etc.). In other words, the threatened injury to the police is too speculative to satisfy federal standing requirements. If a court followed this approach, it again wouldn’t have to reach the merits of the Section 885(d) issue and users would presumably win. However, even if this standing argument would work in federal court, it wouldn’t necessarily work in state court (where most of these claims have been raised ). That’s because state courts don’t necessarily apply the same restrictive standing rules as their federal counterparts.
As I noted above, none of these approaches is entirely satisfactory to me. But I’m interested to hear what others think – and whether there might be another solution to the puzzle.
Thursday, February 02, 2017
Teaching and Writing About Marijuana Law
Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.
For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.
Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.
This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.
That’s it for now. In the coming days, I’ll write about several of the questions posed above.
Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)
Wednesday, January 04, 2017
Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton
Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.
Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains.
Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017.
Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.
Monday, December 12, 2016
The Privacy of Criminal Records
Criminal records in the United States are more widely accessible than anywhere else in the world. Congress allows various industries, organizations and businesses access to the criminal histories of job applicants, employees, and volunteers. Inmate locators allow members of the public to find the location, crime of conviction, custody status and sentencing terms of detainees. Anyone can also look up in online registries the name, address, photograph and offense history of sex offenders and, in some states, those convicted of violent crimes. The public and media have daily access to arrest blotters, docket sheets and court case indexes. A few states even make publicly available documents within court records, like pre-sentence reports, that can contain mental and physical health information, and intimate personal and family history.
All this accessibility enables entrepreneurial secondary aggregation and distribution of criminal history information. Private information vendors market and sell lucrative criminal background check services, populating their databases with information downloaded from publicly-accessible sources and purchased from state and local governments. Particularly troubling are those companies that collect publicly available information about arrestees and offenders, including names and photographs, post them to their website, and then offer to remove the embarrassing information for a fee (it's not all that far from blackmail).
Are criminal records public information infused with public interest to which others should (or even must) have access, or are they personal information entitled to privacy protection?
In the U.S., the unequivocal answer is that they are public information. There are several different and contestable reasons why we've come to that answer, and inextricable links to other areas of law (such as tort law) that seem to drive access and disclosure, which I will cover in future posts. For now, I want to acknowledge that the answer need not be that criminal records must be exceptionally public.
Indeed, in Europe (as a general rule), it's nearly the complete opposite. Individual criminal history records created and held by police are not available to non-police agencies, much less the media and general public. Nor may European employers and landlords obtain criminal history information from the courts or national conviction registers. Indeed, the Spanish Supreme Court held that the country’s National Conviction Register violated an individual’s right to privacy by disclosing his criminal record to the Election Commission.In protecting criminal record information from disclosure to the Election Commission, the Spanish Supreme Court reasoned that a criminal conviction is “personal information” and the constitutional right to privacy “guarantees anonymity, a right not to be known, so that the community is not aware of who we are or what we do.” Another case prevented the posting on a website of the names of civil servants who had previously been found guilty of torture.
For Americans steeped in sex offender registries and background checks, concealing criminal records from anyone, much less torture convictions of government employees from election officials seems unfathomable. And conceiving of criminal records as personal information, to which the community cannot become aware, seems like a world truly an ocean away. In the days ahead, I hope to explore when and where the U.S. could, and arguably, should reconceive the public nature of criminal records.
Tuesday, December 06, 2016
Clemency and Collateral Consequences
Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.
That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.
Malcolm Feeley famously wrote three decades ago that, when it comes to criminal justice, the process is the punishment. In today’s increasingly efficient, assembly-line criminal justice system, the process may no longer extract such a damaging toll (though it certainly inflicts unnecessary harm). Rather, as James Jacobs has written in his recent book on criminal records, The Eternal Criminal Record, today “the basic punishment meted out in criminal cases is a conviction record that exposes the record-subject to discrimination, disabilities, and disqualifications.”
I ignored the advice of wise colleagues and prawfsblawg commenters about writing a book review pre-tenure and reviewed Jacobs' important book. [I loved doing so, and would do it again, whatever tenure points it was or wasn't worth.] In it, I noted three aspects of American Criminal Record Exceptionalism: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. The mixed feelings I have on behalf of my clemency client are most related to the exceptional permanence of his criminal record. As he sets out as a 52-year-old man, whose days of offending should be long behind him, to find work and housing, to access public benefits and vote for representatives and on legislation that will govern his community, he will too often find that his punishment continues because his criminal record decides his fate.
A commutation is not forgiveness in the way that a pardon is. As the DoJ FAQ on clemency makes clear, a commutation "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." Yet a commutation suggests that a sufficient amount of punishment has already been inflicted on the offender. For reasons explored briefly in my book review and more fully in other articles I've written about criminal convictions and access to citizenship and the criminal records of youth, I think it is worth serious consideration whether there should be a statutory sunset on the collateral consequences of criminal records. Decarceration and penal moderation deserve the policy momentum they have today, and they should be joined by further efforts to minimize the unjustifiably long shadow of criminal convictions.
Friday, October 14, 2016
Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.
Wednesday, September 21, 2016
State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons
*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.
Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.
Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.
For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.
Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.
As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.
Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.
None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.
Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.
Tuesday, September 20, 2016
Nonconsensual Pornography and the "Gay Bachelor"
Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished." As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.
Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”
In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:
- As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
- Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.
One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.
Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."
NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.
Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.
Monday, September 19, 2016
State v. Dharun Ravi: A Culture of Homophobia
Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.
There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).
Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.
M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao
DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet
M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk
DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then
M.H.: hahaha good luck with thatt
DEFENDANT: He just texted me asking when I was coming home omg.
M.H.: maybe his gay friend is in your Ed bed*
DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL
M.H.: really?? how lmao that's so cool
DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday
M.H.: hahaha that's so crazy
DEFENDANT: Yeah keep the gays away
M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross
DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop
M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*
In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).
Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).
By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.
Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.
Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons.
What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?
Wednesday, September 14, 2016
State v. Dharun Ravi: The Appeal
In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.
N.J.S.A 2C:16-1(a)(3) states:
A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).
This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.
Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."
The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.
The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."
Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.
I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.
Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.
Stay tuned for more!
Monday, September 12, 2016
State v. Dharun Ravi: What Happened?
On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.
To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).
Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.
On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.
By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).
On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).
September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.
Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death.
But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.
Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.
Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.
With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!
Thursday, August 11, 2016
Copyright Doctrine: IPSC2016
IPSC - Breakout Session II - Copyright Doctrine
Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.
Copyright State of Mind – Edward Lee
Authorship and Audience Appeal – Tim McFarlin
Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik
Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden
Copyright State of Mind – Edward Lee
Offering a descriptive taxonomy about how state of mind is used in copyright law.
2d Circuit in Prince v. Cariou: transformative use, the first factor in the fair use test: objective state of mind
9th Circuit in Lenz v. Universal: DMCA 512(f) violation: subjective state of mind
State of mind re: copyright liability - it is often said that copyright infringement strict liability. This differs from criminal law, where mens rea (criminal intent) typically matters.
If we look beyond liability, state of mind figures prominently in many different copyright doctrine. For example, authorship, including intent to be joint authors (both objective indicia and subjective intent). We haven't considered the intent of the lawsuit - are we protecting copyright or privacy, for example, but Judge McKeown on the Ninth Circuit recently argued we should. For ISPs, we have the red flag cases which have both subjective and objective elements.
Dave Fagundes: Property also deals with intent. Adverse possession and first possession have a whole mess of intent-related doctrines. Perhaps the ownership intent doctrines might help conceptualize these issues.
Pam Samuelson: Think about remedies as well. Innocent infringement, as well as willful infringement. It can play out also in relation to injunctive relief. Plaintiff's state of mind might matter with regard to obtaining injunctive relief. See also the new Kirtsaeng attorneys' fee case.
Ed Lee: Perhaps I should also look at the Supreme Court's patent cases.
Matthew Sag: If there is a universal theory about what state of mind should be for any of these doctrines, is there a logic that connects us to why we have copyright in the first place?
Ed Lee: I'm skeptical of a uniform theory. See, for instance, DMCA which is a negotiation between stakeholders.
Dmitry Karshtedt: My understanding is that civil liability more objective than subjective, while for criminal liability, intent is more subjective. and should we see the same play out in copyright?
Reforming Infringement – Abraham Bell & Gideon Parchomovsky
We have an immodest goal of reforming remedies in copyright, more systematically including culpability in the analysis. Under the reformed regime, we would treat inadvertent infringement (where the infringer was unaware and couldn't reasonable become aware) and willful infringement (blatant disregard of copyright law) different from standard infringements (with a reasonable risk assumption).
The close cases are in the middle category of standard infringement. The default is standard infringement. Compensatory damages should be awarded in every case. Injunctions would be rare and no restitution for lost profits awarded in the inadvertent cases. We are trying to preserve statutory damages only for cases where it is difficult to prove actual damages. So the defendant in the standard infringement case could argue that statutory damages exceed actual damages.
Why bring it in? 1) Information forcing - incentivize owners of copyright to clarify ownership and terms of licenses. 2) Avoid overdeterrence of follow-on creation. 3) Increase fairness.
Ted Sichelman: In the patent context, we worry about transaction / licensing costs. It may matter for copyright as well. For example, if the work is an orphan work, why should I face huge potential liability?
Abraham: The inquiry should account for the difficulty of finding the copyright owner.
Ian Ayres: Does any kind of negligence go to willfulness because there is no reasonable basis for non-infringement?
Abraham: It's not clear how we would calculate such a thing: What is a reasonable risk, re: evaluation of risk of law. We're treating standard as a residual category. But we are still arguing about this point.
Pam Samuelson: Have you been thinking about remedies re: secondary liability? The framework appears to deal with direct liability, but secondary liability cases may be the more complicated cases, where we wonder how culpable is the platform? The statute tries to grapple with through 512.
Abraham: We didn't think about secondary liability until we talked with Lisa Ramsey last week.
Pam: Secondary liability is the area that needs the most reform!
Abraham: We'll have to bracket this right now. Secondary seems to follow primary, and we don't have a better model right now.
Shyam Balganesh: How much of your proposal unravels other parts of the system? Are you accounting for systemic effects? For example, if information forcing matters, why not deal with that through a heightened notice requirement? Do you think infringement is independently problematic, or is it the best place for achieving information forcing goals?
Abraham: Unlike information forcing, overdeterrence is harder to fix with levers in other places. This isn't the only way to accomplish these goals, and we don't claim that, or that it's the best way.
Jerry Liu: Is it necessary, from an overdeterrence standpoint, to distinguish between willful and standard infringement? Google Books was arguably willful infringement, but it was also efficient infringement.
Abraham: I think Google probably was a standard infringer, from a culpability standpoint. They took a fair use gamble, and they won.
Jerry: How about the MP3.com case?
Abraham: You can make an argument that format change / transferring medium is fair use, so standard.
Authorship and Audience Appeal – Tim McFarlin
Recent projects have looked at disputes between Chuck Berry and his piano player, and Orson Welles and a script-writer. In both cases, questions of audience appeal have been nagging at me, and I want to explore that further.
Can we better use audience appeal in the infringement context than the authorship context?
Audience appeal, from the Aalmuhammed v. Lee case (9th Cir 2000), is an important factor. Audience appeal turns on both contributions, (by potential coauthors), but "the share of each in the success cannot be appraised," citing Learned Hand. If that's right, and we can't evaluate audience appeal in the authorship context, is it a junk factor? If we can, how do we do it? And if we can, should we?
What do courts do with audience appeal? Mentioned in 21 cases, but 9 ignored it in reaching the decision. 9 found it weighed in favor of joint authorship, and 3 found it weighed against joint authorship?
How do we appraise it? If we find evidence of audience appeal from both contributions, at what point is the smaller contribution too small? 60/40?
Might audience appeal help with questions of infringement, for example in the Taurus / Led Zepellin case? Might we consider the appeal of Stairway to Heaven v. the appeal of Spirit's Taurus as a reason for public interest to weigh against injunctive relief? See Abend v. MCA (9th Cir. 1998).
Jake Linford: Perhaps talk to Paul Heald about his research on how musicians copy from each other. There is some potential danger in using audience appeal to decide infringement, injunctive relief, or damages, because that leads to a copyright regime where the party who is best-placed to take advantage of the works gets to use and make money with it, even if that party doesn't pay.
Peter DiCola: You are right to challenge Learned Hand. Audience appeal can be appraised. The question is whether it can be appraised convincingly. The part about in general where does audience appeal matter may be too general, and may not be at the heart of your paper.
Pam Samuelson: Some works have audience appeal, some don't, and it might not be relevant for unconventional expressive works For example, the internal design of computer programs are not appealing. You may need to unpack works where appeal matters and where it doesn't.
Jani McCutcheon: Watch where trademark and copyright protection overlap on this issue.
Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik
This paper is inspired by two recent controversies surrounding Harper Lee and To Kill a Mockingbird: the appearance of Go Set a Watchmen, and the decision by her estate to pull the student-priced paperback from the marketplace. Both of these stories are murky. Lee may not have been in her right mind when Go Set a Watchmen was released, and the announcement from Hachette about the student-priced paperback suggest both the estate and Lee wanted the low-priced version discontinued.
Should motivations of the author or the heir matter for copyright decisions? Eva argues that it should. The law should be tougher on post-death copyright successors. We should treat them more like stewards, and require some duties on their part. If copyright ownership limits post-mordem access, heirs should be encouraged to take care.
What might stewardship mean? It has its origins in theology, traditionally applied to land. It's taken on a secular cast today. Stewardship suggests that the owner has duties as well as rights. Stewardship has something in common with commons advocates - copyright should be forward looking, and concerned about future generations. Bobbi Kwall has argued that authors are stewards, and I think it should be applied to heirs as well. Unlike authors, publishers, and distributors who did work with the work, stewardships step in as recipients of a gift, and perhaps they should step into some duties.
Application: Eva doesn't argue for a statutory change, and it's not clear stewardship would change the analysis of the Harper Lee issues, but stewardship could change fair use analysis, for example with biographers and scholars. When the heir has the ownership of a sole copy, stewardship could matter [JL: unclear to me how]. Perhaps stewardship could allow authors to better shape stewardship of their legacy. [JL: Doesn't the termination provision already exclude wills?]
Brad Greenberg: A potential disconnect between assignments and statutory heirs of termination rights. What if the author's assignee is a good steward, and the children are poor heirs, from a stewardship standpoint? Is Stewart v. Abend's analysis of the renewal right a problem for your analysis? Should we also apply stewardship duties to non-author copyright owners?
Eva: To my mind, a post-death successor gains enhanced prominence in managing the copyright after death, and I'm trying to say something specific to that group of copyright owners.
Dave Fagundes: I like the idea of stewardship, but it's still inchoate, and I can't tell to whom is the steward responsible? The work? The public? The author's intent? What if authors wanted their families to be taken care of?
Eva: You could also add the author's legacy, which may differ from author's intent. [JL: This reminds me of Mira Sundara Rajan's project from the first breakout session.]
Ed Lee: Perhaps the moral rights of integrity literature could also be helpful, which is more about legacy than children.
Giancarlo Frosio: French case 2007 might be helpful. See also Kant.
Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden
Scholars seem to distrust claims by estates and heirs, but the tend to succeed in advocating for statutory change, and winning cases before the courts. But I found some recent claims that sound in mourning and grief that perhaps we shouldn't discount in copyright and right of publicity cases.
IP Narratives that are traditionally invoked:
1) Anti-exploitation. Randy California was badgered for years to sue Jimmy Page, but his heirs stepped in to claim some recognition for him.
2) Family privacy. James Joyce / J.D. Salinger estates
3) Purity narratives. Limit downstream uses, especially those that raise potential sexual purity.
4) Inheritance. It's all that the author left to the family.
5) Custody (like child custody). Children as caretakers of the work.
Copyright scholarship tends to ignore these types of claims, but we see them invoked successfully in cases like family businesses, bodily disposition, organs and genetic information, digital assets, like email, and succession laws dealing with omitted family members.
What would happen if IP took these interests seriously? Perhaps there is a desire for shared mourning and grief, both by authors' heir and fans. Fans circulate and disseminate broadly as part of public mourning, but mourning families look inward, seek silence, achieve some semblance of privacy. These interests might not be as irrational as we might think.
One solution might be to bring issues of estate planning more to the fore. Marvin Gaye and Frank Sinatra created a family business when they secured copyright, whether they meant to or not.
Rebecca Curtin: You've made a very sympathetic case, and you've repeatedly spoken about family. Do you mean family, or could you include designated heirs, like the Ray Charles foundation? What might that mean?
Andrew: We may need to think differently about those who inherit intestate and those who don't.
Brad Greenberg: The incentive theory of inheritance suggests that authors will create in part to benefit children. But there could be a labor theory of inheritance: this was the authors, like the children, and it goes to the children. In addition, is this really about IP, or just copyright?
Andrew: Copyright and right of publicity. My take is more of the labor than the incentive theory.
Q: Why does the right publicity survive death?
Andrew: Jennifer Rothman has a very good paper on this. Right of publicity is labelled as property, and property descends, so in some states it descends.
Peter DiCola: I enjoy the presentation, and I ask not to upset the applecart, but what might the First Amendment tell us about these arguments about importance of controlling meaning?
Andrew: I don't think these insights should change fair use outcomes, but my concern is that heirs' motivations are okay, especially in light of how they work in other cases. The emotional appeals are not inherently problematic. (Although I have some problems with the purity rationale).
Jake Linford: Is this project normative as well as descriptive?
Andrew: It started more descriptive, but normatively, I see no problem. Prescriptively, perhaps we could ask authors to be more clear about how their intent at registration / protection, for example.
Giancarlo: Is there space for a moral rights style argument here?
Andrew: Perhaps attribution is the best moral rights claim.
Giancarlo: Is there a mechanism is the composers of Blurred Lines had said no? Can you make the heirs grant a license?
Andrew: Blurred Lines is a declaratory judgment action - the derivative authors brought the case to foreclose liability.
Tim: The estate's emotional appeal in the Taurus complaint may have been somewhat strategic, trying to deal with the perception of greedy, rent-seeking heirs by promising to give money to sick children.
Tuesday, July 19, 2016
Black and Blue in Baltimore
Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?
I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.Duff draws a line between ordinary moral wrongs and extraordinary criminal wrongs. What makes criminal wrongs so extraordinary, he thinks, is that they are wrongs that the public ought to take an interest in. Failing to buy a beer when it is your round is a wrong, but unless I’m one of the folks you are drinking beer with, it’s none of my business that you are stingy and selfish. Engaging in an act of domestic violence is a wrong, but even though it may occur in a private place, it is a wrong that affects the community as a whole, and which the public has an interest in seeing prosecuted. Moreover, the community enacts criminal laws to express the fact that it is the public’s business. People whose wrongs affect the community are not just ordinary wrongdoers; they are criminal offenders and have a duty to come forward to answer the community, to whom they are accountable, in a public forum, such as a trial.
Duff’s special significance as a theorist of punishment and criminal responsibility is (as Malcolm Thorburn points out) in identifying the trial (rather than the punishment) as the focal point of the criminal justice system. The trial is centerpiece of the accountability because it is a communicative forum. It is there, in public, that the offender answers to the community and (if the law provides) suffers public censure. Responsibility for wrongdoing demands (for Duff) that the offender answer to someone; responsibility for criminal activity requires an offender answer to the public through the trial process. The result of the trial (conviction or acquittal) is secondary to calling the offender to account.
Duff’s view suggests that whenever the community plausibly suspects that someone is a wrongdoer, then both the community and the wrongdoer have a positive duty discuss it: to demand and provide a rational accounting of the wrong. Where the wrong is one that touches the community as a whole, then the proper forum for such an accounting is the criminal trial.
Duff’s argument about communities and the criminal law is quite compelling. At the very least, it provides an important moral basis for criminal law: that it is the moral law of the public, the community; not just a set of wrongs that the politicians decide to sanction with an especially harsh or significant punishment. The wrongs of the criminal law are extraordinary ones which affect the community as a community. And when the wrongs are those engaged in by public officials, then the community and the state has an especial interest in ensuring that the official publicly accounting for those wrongs. (Duff has some radical and interesting things to say on this, which would take too much time here. See his Punishment, Communication, and Community at 183-17; see also Ekow Yankah, Legal Vices and Civic Virtues). [As a side note, Duff, Yankah, and Thorburn are not just theorists of criminal law; what they have to say about criminal procedure, and in particular its relation to political theory, deserves much more attention in the world of mainstream American criminal procedure than they are currently receiving).
So trying the other Baltimore officers involved in the Freddie Gray killing is not a waste of time: it is an important way to treat the community as wronged and the officers as responsible—as individuals who are capable of being held responsible and so have a duty to answer in a public forum. It is not enough: if there was a wrong, then the officers in addition deserve public censure and should make some form of reconciliatory act to the public and the victims—the Freddie Gray family. If the court fails to acknowledge the officers’ wrong, they still remain on the hook as wrongdoers if not as offenders. But now the legal system too is on the hook, for failing to provide an adequate forum, not only for accountability, but also for censure and expiation. Without these further possibilities, the community—the public, the people—are inadequately valued by the state, and will continue to feel that they have been denied the justice they deserve as equal members of the polity.
One final thought: in her excellent book, Prosecuting Domestic Violence, Michelle Madden Dempsey also discusses the role of the prosecutor in constituting the community. While she and Duff have important differences, Dempsey's discussion of the ways in which the prosecutor constitutes the community on behalf of the state, and so the prosecutor's duties to the community as a public official, is essential reading for anyone interested in this topic. I hope to say a little more about Dempsey's work in a later post.
Friday, July 08, 2016
Police body cameras raise a host of legal (Fourth Amendment) issues
Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).
The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.
In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)Prior to June 9, at least in Washington, quite a bit of footage recorded inside peoples' homes was potentially subject to public disclosure, and I think this specific exemption is a positive development. However, this particular exemption is subject to at least two important limitations (that are linked in some ways): 1) the exemption is crafted as a rebuttable presumption (because disclosure would be not be "highly offensive to a reasonable person," as required by the Act's general privacy provision), and 2) it only applies where a person has a "reasonable expectation of privacy." Read on their own, this protection provided by the new exemption may sound fairly strong, as we may generally assume that people maintain heightened expectations of privacy in their homes. However, read in conjunction with an opinion by the Washington State AG that says that conversations between police officers and citizens are not private (for purposes of the state Privacy Act) even when they occur inside that person's home, we begin to see some potential conflicts.
In the context of the Fourth Amendment, the U.S. Supreme Court (in Wilson v. Layne, 526 U.S. 603(1999)) has held that bringing a reporter into a private home during the execution of search warrant cold violate the suspect's Fourth Amendment rights, at least when the "the presence of reporters inside the home was not related to the objectives of the authorized intrusion" (id. at 611). When an officer wears a body camera into a home, the use is arguably "related to the objectives" of the search or arrest, but permissive public records laws could make the officer's video nearly as accessible to the press (or any other member of the public) as the reporter's video or photographs. In a way then, the Wilson decision provides protection at a procedural level, but doesn't necessarily change the essence of the outcome between these two cases. Are the connections between Fourth Amendment's guarantees and state records laws relevant for Fourth Amendment analysis purposes? Should they be?
Another interesting set of questions arise in the context of the "plain view" exception to the Fourth Amendment's warrant requirement. I can easily imagine that body camera video filmed inside a person's home (by an officer legally inside the home) could capture potential evidence that was in "plain view," but wasn't actually seen by the officer (or was audible and recorded by the cameras's microphone, but not actually heard by the officer). Much like Justice Sotomayor's worries, expressed in her concurrence in U.S. v. Jones (132 S.Ct. 945 (2012)) that long-term GPS tracking of a suspect's automobile does something qualitatively different than merely improve law enforcement efficiency (or merely replicate what a police officer could legally do anyway, as described in U.S. v. Knotts, 460 U.S. 276 (1983)). In this case, the possibility of police personnel viewing and analyzing the footage after-the-fact and then finding evidence of other, unrelated, criminal activity, could serve to initiate (and legitimize) future law enforcement searches or arrests for reasons unrelated to the initial search. Is this a good or bad result?
What do readers think about these three sets of issues? Are there other Fourth Amendment questions or issues that also seem obvious or important? I look forward to hearing your responses.
Thursday, June 30, 2016
Overview of ABF Research (Part III): Law & Globalization and Legal History
In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present. From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time. Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.
Let me start with a brief description of our research on law & globalization.
Law & Globalization
Globalization, to be sure, is not a new phenomenon, but it has taken on a greater sense of urgency in recent decades. Like many academic and research organizations, the ABF has become increasingly interested in the causes and consequences of globalization and its relation to law. For many years, we have had numerous international faculty members conducting research throughout the world.
Most recently, our legal sociologists Terry Halliday and Sida Liu have been collaborating on a long-term project about Chinese criminal defense lawyers and their role in political mobilization. As I’m sure many Prawf readers know the Chinese state in recent years has been intimidating and persecuting Chinese lawyers because of their political activism. Terry and Sida have conducted hundreds of interviews with Chinese lawyers to learn more about how the everyday work of criminal defense lawyers has become a political project. Drawing on a long line of scholarship about lawyers and political liberalism (much of it written by Terry), their forthcoming book will one of the first to examine empirically how the seemingly ordinary work of criminal defense lawyers in China can have far reaching transnational political and social implications. Although the book won’t be out for another year or so, this fascinating research has already garnered significant media attention across the globe.
Another area of ABF research on globalization focuses on comparative constitutions. Our joint-appointee Tom Ginsburg (U. of Chicago Law & ABF) has been at the forefront of research about the origins and international diffusion of rights in national constitutions. For many years, Tom and his collaborators have been collecting data on the countless constitutions that have been in existence since 1789 to the present (you can learn more about their Comparative Constitutions Project here). This project has documented the important role of domestic political factors and country characteristics in understanding the development and diffusion of constitutional rights.
While Tom Ginsburg’s research focuses on the material aspects of the rule of law, one of our other colleagues working on globalization, Jothie Rajah, explores the more theoretical underpinnings of rule of law discourse. Following up on her first book about rule of law in Singapore, Jothie’s latest project analyses the different ways in which global institutional actors (the UN, the World Bank, the International Commission of Jurists, the World Justice Project) define “rule of law.” Through a close reading of the texts and practices of these institutions, Jothie analyzes the development of global norms and the efficacy of rule of law indicators.
ABF research on globalization also examines the diffusion of legal rules across nation-states. Our joint-appointee Carol Heimer (ABF/Northwestern Sociology) is studying how laws, regulations and other rules are actually used in HIV research and treatment in the United States, Uganda, South Africa, and Thailand. Her book project investigates what happens when laws, regulations, and guidelines, admittedly created with the best of intentions, are transported to new sites where they confront the realities of medical care, clinical research, and healthcare administration in developing countries. Carol is currently finishing up a fellowship year at Stanford’s Center on Advanced Study in Behavioral Sciences, where she is completing her book manuscript.
In addition to our work on Law & Globalization, the ABF has also had a long tradition of research on legal history, writ large. Many years ago, the ABF had a Legal History Society of some kind that hosted regular events advancing scholarship in legal history. Although the formal society doesn’t exist anymore, the ABF continues to play an important role in supporting and promoting legal history. From our faculty members like Vicky Woeste, whose recent research focuses on hate speech (here’s a link to her latest book on Henry Ford and Hate Speech), to our regular Chicago-area seminar on legal history, to our recent support for a junior scholars conference on Law in Capitalism, the ABF remains committed to supporting innovative and influential research on how law and legal institutions have operated in the past, and on how these historical legacies continue to influence the present.
Indeed, our recent conference, which was co-hosted by the University of Chicago Law School, and supported by a consortium of schools and the American Society for Legal History, brought together a stellar group of junior scholars working at the intersection of law and the new histories of capitalism. These advanced grad students and junior faculty members had a chance to share their work and receive feedback from senior scholars in the field. We were delighted to host this group at our Chicago location, and we look forward to having more ABF events on legal history.
Like the other categories I’ve discussed earlier, these two ABF research streams are just examples of a much deeper body of scholarship. To learn more about our research, please visit our website.
Now that I’ve given readers a sense of the type of empirical and interdisciplinary research the ABF conducts, perhaps in my last post (if I haven’t already over stayed my welcome as a guest blogger) I can address a couple of pragmatic issues about ABF funding and the role that legal academics play in both supporting and helping disseminate ABF research.
Tuesday, June 21, 2016
O.J. and Rodney King
I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.
But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed, that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.
[*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.
It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**
[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.
Wednesday, June 08, 2016
Stern on liberals, sexual violence, and the justice system
I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases, the right to confront witnesses, and general abandonment of due process in campus sexual assault.
To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.
Tuesday, June 07, 2016
Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession
In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.
Since its founding in the 1950s, the ABF has had a strong research focus on criminal justice. One of the ABF’s first projects, funded in large part by the Ford Foundation, explored the processing of offenders from arrest to prison. Led by Frank J. Remington, this study culminated in a scholarly edited volume (Discretion in Criminal Justice), as well as a larger publication (A Plane for a Survey) that highlighted the many areas of discretionary decision-making in the criminal justice system (thanks to former ABF doctoral fellow Meredith Roundtree for pointing me to this storied history).
More recently, ABF scholars have been continuing the tradition of analyzing criminal justice issues. Several are conducting research on the social and political implications of mass incarceration. ABF Research Professor and Northwestern Sociologist John Hagan and his co-author Holly Foster (Texas A&M) have been documenting how parental incarceration of non-violent offenders has had tremendous deleterious effects on children. With support from the National Science Foundation, the ABF held a White House Conference on this important topic. Similarly, Traci Burch (ABF/Northwestern Political Science) in her recent award-winning book (Trading Democracy for Justice) has shown the pervasive political and social consequences of mass incarceration, and how the criminal justice system has helped reproduce massive inequality.
Another area of ABF research related to criminal justice is Jim Heckman’s work on early childhood interventions. Jim, who is a U. of Chicago Nobel laureate economist and an ABF Research Professor, has been investigating how investments in early education and healthcare for disadvantaged children from birth to age 5 can have significant long-term effects on boosting graduation rates, improving health outcomes, and reducing violent crime. In a sense, Jim is studying ways to break down the school-to-prison pipeline that has been preoccupying many criminologists and lawmakers.
Legal Education & the Profession
In a previous post, I mentioned the ABF’s signature “After the JD” project, which continues the Foundation’s hallmark work on the legal profession. Directly connected to this line of research is more recent work on legal education. Beth Mertz (ABF/Wisconsin Law) has long been studying the relationship between language and the law. In recent years, she has been examining how law schools operate as a site for the training of lawyers in the language of law. Her award-winning book, The Language of Law Schools, draws on deep ethnographies to explain the important role of language in the socialization of law students. Beth is following up that earlier project with new research on the post-tenure experience of U.S. law professors.
In a similar vein, ABF Research Professor Steve Daniels has been conducting research on many aspects of the legal profession and legal education. Following up on his recent book (co-authored with Joanne Martin) about the Texas plaintiff’s bar, Steve is currently working on changing patterns within legal education. With support from the Access Group, Steve will be building on his experience as a consultant for the ABA’s Task Force on the Financing of Legal Education to explore how law schools have been responding to the current challenges facing legal education.
Criminal Justice and Legal Education & the Profession are just two historically prominent areas of ABF research. In my next post, I’ll describe other more recent areas of research.
Saturday, April 23, 2016
Body Worn Cameras in NC
I expect a majority of the attention on the North Carolina General Assembly during its upcoming short session will focus on the "will-they-or-won't-they repeal it" drama surrounding House Bill 2, i.e., the bill that folks in the media insist on referring to by the maddeningly reductive moniker, "the bathroom bill." (It's maddeningly reductive because while the bill does enshrine anti-transgender discrimination in law, it also does far more sweeping harm by, for instance, eradicating any state law employment discrimination claims.) But those of us lucky enough to live in North Carolina know that the General Assembly must have more well-considered lawmaking in store for us.
With that in mind, I point you in the direction of a legislative proposal recently made by the Joint Legislative Oversight Committee on Justice and Public Safety Body-Work Camera Subcommittee. It's an interesting proposal on a question I find really challenging: to what extent should body-worn camera (BWC) footage be made available to the public? The main thrust of the bill is that it leaves disclosure up to the "head law enforcement officer" of the law enforcement agency with custody over the footage. Then, if this officer decides against disclosure, then the person seeking disclosure can file suit in NC state court to seek disclosure.
This is a limited victory for transparency with respect to BWC footage, but only because the way existing laws in NC have been interpreted make disclosure unlikely. As it currently stands, most BWC footage would likely be exempt from disclosure either because it is a confidential "personnel record" under NC law or because it falls within the law enforcement record exemption to the NC public records law. So, the proposal at least creates some avenue for disclosure.
But from the standpoint of videos of controversial police-civilian interactions, it's hard to know how the proposed approach would shake out. One thing seems certain, though: given the "squishy" standards that both the head law enforcement officer and courts are supposed to use to determine whether footage will be released, the release decision will likely depend on political expediency and not on any underlying commitment to transparency. As such, the proposal is unlikely to lead to much in the way of fulfillment of the promise of BWC that they will increase the accountability of both police and civilians.
Friday, April 22, 2016
Criminal Law Class Materials Request - Update
Back in January, I imposed on the Prawfs community for some suggestions about materials for a few stand-alone class sessions I was hoping to integrate into my standard first-year Criminal Law course:
A Criminal Law class-materials requestConsulting the blawg-oracle: I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help. I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics. I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing. As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).Take it away! Revise my syllabus!
Monday, April 11, 2016
Over the last few years, I've taken to writing about emerging tech and criminal law. As a childhood fan of science fiction, it's fun to get to think about technologies that are similar to those I read about as a kid. In particular, I have a blast thinking about how the law will or should handle what I predict will be very-near-future technologies. So, for instance, I've written about algorithms taught through machine learning techniques to identify individuals who are likely to be presently or very recently engaged in criminal activity (e.g., an algorithm that says that that guy on that street corner is probably dealing drugs, or that this on-line sex ad (and whoever posted it) is probably related to human trafficking).
At the time I wrote the piece, there were no algorithms that exactly fit what I describe. There were computer systems that identified individuals in real-time as they engaged in activities that human operators had already decided correlated to criminal activity, and there was research ongoing using machine learning to identify activities that correlate to criminal activity, but no one had put the two together. As I saw it (and perhaps it is the sci-fi fan in me), it was just a matter of time before the two came together to create the kinds of algorithms I discuss.
A source of frustration for me when I presented on the topic, then, was that inevitably one of the first questions I'd get would be whether the technologies I discussed really exist. I'd explain what I just said in the prior paragraph, but nonetheless I'd feel defeated in some sense, like my legitimacy had been undermined. And I can see many reasons for the questions: curiosity, to understand the technology better through an example, and skepticism about the validity of discussing something that doesn't exist, to name a few.
But the questions still bothered me. And they got me thinking: To what extent should we talk about the legal implications of things that we believe are about to happen, but which haven't happened yet and therefore may never happen? What is our obligation as scholars to prove that our predictions are correct before engaging in legal analysis? Is this obligation higher in some areas of law, like criminal procedure, that traditionally have not been consistently forced to adapt to technological developments, and lower in areas of law, like intellectual property, that have?
Tuesday, April 05, 2016
A Brief Hello
Hi. Thanks to Howard for the opportunity to guest bl(o/aw)g here this month. For those who don't me, I teach criminal law, evidence, and criminal procedure at the Elon University School of Law in Greensboro, North Carolina, and I write about technologies of crime prevention and criminal informants. I hope to cover a broad range of topics while I'm here: a bit on my research interests, as well as some thoughts on teaching, law school curricula, and some of the challenges I've encountered in my still-relatively-brief career in legal academia. See you soon.