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.
Sunday, February 28, 2016
Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).
Here's an ethical hypo that isn't really a hypo at all. Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.
Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute? Even in an election year?
I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue.
edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.
Friday, February 05, 2016
Power or Participation? Consensus in Political Deliberation
How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.
The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.We might think that fair procedures are ones that guarantee participation, but not influence. What matters is that authorities have a duty to allow participation, and convince participants that they are treated neutrally, respectfully, and as members of the same group, not that authorities must in practice so treat participants. We might think that while a fair procedure does not guarantee participation, it need not preclude it: a participative procedure would be one in which authorities and subordinates see each other as part of the same organization, with the same interests, and so would come to the same conclusions were everyone consulted. What matters most, however, is that the organization generate the right result, and that subordinates comply with that result. Because participative procedures maximize the likelihood of compliance, what matters is participation rather than influence or accountability (what we might call reciprocity). A version of this thesis can be found in Madison’s Federalist 10; and something like it has been described as unitary democracy by Jane Mansbridge. And it seems to be at the heart of procedural justice.
Consensus democracy is compatible with idea that authorities may be, for various reasons, justified in encouraging subordinate participation in the process of decision-making—giving subordinates a voice—while at the same time misrepresenting the amount of influence the subordinates wield in the process. If the goal is to ensure compliance or cooperation, and everyone would agree on the outcome if they were sufficiently well-informed and rational, then it does not undermine the subordinate’s interests in the right result that they are mistaken about the extent of their influence, particularly if they are more likely to reach that result without sanction (and, from the perspective of the authority, without expensive inducement).
But what of dissensus democracy, where there is no right result, or where there is a split authority (such as the tripartite structure of American government) or where the interests of the public conflict in certain ways with the interests of the government? Should we value compliance or cooperation with the authority and so accept as fair those procedures that more effectively produce these effects; or should we instead opt for a process that permits, not just participation, but also reciprocal accountability. That sort of procedure would not only require participation, but also power-sharing, among the members of the organization, or of the community, or of the country.
The debate is an old one, but it has practical urgency in the context of policing. The four-part procedure I described above—participant voice; authority neutrality, respectfulness, and beneficence—are the features of procedural justice which promise to reign in police use-of-force at the same time as more effectively ensuring compliance and cooperation than other methods, baed on inputs like law-abidingness, and outputs like crime reduction or even avoiding criminal sanctions. A core issue is whether compliance and cooperation with the police is a goal that we all share. For example, we have the right to terminate police encounters by walking away and refusing to answer questions; and even if arrested we have the right not to comply by declining to speak during an interrogation. Should we also have the right to challenge the police to justify taking us into custody or searching us by articulating their grounds for doing so? Should the police be dynamically responsive to our facts or reasons or can they ignore our input while still providing for our participation as a way of mollifying us and getting us to comply? Famously, police interrogations follow a two-part process in which the interrogator first determines whether the suspect is guilty or not (the unitary purpose) and then uses various psychological techniques to induce compliance, both at the waiver and at the confession stage of the proceedings. The technique is so powerful, studies show, that some suspects will not only confess, but actually convince themselves that their interrogator was right and they were mistaken about what actually happened.
How structure fair procedures to maximize participant power and participation presents difficult questions. Whatever the answer, procedural justice provides a fascinating account of the way in which the structural features of our interactions with authorities can have important psychological and behavioral consequences, consequences that are of deep democratic significance.
Wednesday, February 03, 2016
Bibas on "The Decline of Mercy"
Over at First Things, Prof. Stephanos Bibas - whose "The Machinery of Criminal Justice" I really enjoyed -- has a review of this book, "The Decline of Mercy in Public Life," by Alex Tuckness and John Parrish. Bibas concludes with this:
Justice requires discretion as well as rules, and it can coexist with mercy.
When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.
I shared the review with my CrimLaw students and thought it might be of interest to CrimPrawfs, too! And, I am reminded that our dear friend and colleague, Dan Markel, published an article early in his career -- in 2004 -- called "Against Mercy."
Thursday, January 21, 2016
A Criminal Law class-materials request
Friday, December 04, 2015
The Johnson Retroactivity Circuit Split Plot Thickens...
A few weeks ago, I wrote a rather lengthy post about the circuit split over whether the Supreme Court's June 2015 decision in Johnson v. United States both (1) is "substantive" (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been "made retroactive" by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief). As I explained then, unlike the typical circuit split, a combination of the jurisdictional limitations imposed by AEDPA and the government's litigating position (that the answer to both questions is "yes") has seemed, at least to date, to deprive the Supreme Court of a "normal" way to resolve this circuit split, suggesting instead that the matter be resolved through the Court's seldom-utilized authority to issue extraordinary writs, including an "original" writ of habeas corpus. As importantly, the clock is running; it's widely believed that AEDPA's one-year statute of limitations will require all Johnson-based claims to be filed by June 26, 2016, no matter when the Supreme Court clarifies its retroactive application.
Well, the plots, such as they are, are thickening...
The Supreme Court now has before it at least three petitions for original habeas writs (In re Butler, In re Sharp, and In re Triplett), along with at least one petition for a writ of mandamus (also in Triplett). My own view is that original habeas makes more sense in this context than mandamus, especially since the Justices may agree, even in holding that Johnson is retroactive, that they hadn't previously "made" Johnson retroactive, and so the lower-court decisions refusing to certify second-or-successive petitions aren't erroneous (and, thus, subject to correction via mandamus). For more on this, see the habeas scholars' amicus brief in support of the petition for original habeas in Butler (that I co-authored). But whether it's habeas or mandamus, the bottom line would be the same: using the Court's power to issue extraordinary writs to sidestep AEDPA.
To that end, the Court has ordered the Solicitor General to respond (a very unusual step in an extraordinary writ case) to the habeas petitions in Butler and Sharp, and to the mandamus petition in Triplett. Those responses are all due sometime in December, and it will be fascinating to see what position the SG takes, since the government generally supports Johnson retroactivity, generally dislikes extraordinary relief, and has yet to take a position on whether all Johnson claims must be filed by June 26, 2016 (such that the Supreme Court would have to take and decide the issue sooner, rather than later).
One clue may be found in a brief the Solicitor General filed on Wednesday in opposition to certiorari in another case--Hammons v. United States. Here's the key passage:
If the Court decides to exercise its jurisdiction under the All Writs Act, 28 U.S.C. 1651(a), to resolve the conflict in the courts of appeals on the question whether Johnson has been made retroactive to cases on collateral review, there is a petition for a writ of mandamus currently pending before the Court that expressly asks the Court to address that question through its authority under the All Writs Act and therefore, unlike this petition for a writ of certiorari, specifically addresses the strict standards applicable to an exercise of that jurisdiction. See In re Triplett, No. 15-625 (filed Nov. 10, 2015). The government's response to the petition for a writ of mandamus in Triplett is currently due on December 14, 2015.
There are also three pending petitions for a writ of habeas corpus that ask the Court to address the question of Johnson's retroactivity through the Court's authority to issue writs of habeas corpus under 28 U.S.C. 2241. See In re Butler, No.. 15-578 (filed Nov. 3, 2015); In re Triplett, No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-646 (filed Nov. 16, 2015). . . . The Court has ordered a response from the United States in Butler, which is currently due on December 18, 2015. It has also ordered a response in Sharp, which is currently due on December 30, 2015. The Court may therefore wish to hold this petition until it acts on the petition for a writ of mandamus filed in Triplett or any of the petitions for a writ of habeas corpus.
Perhaps this passage is meant to suggest that the government will not oppose extraordinary relief--whether through mandamus in Triplett or habeas in Butler, Sharp, and/or Triplett--as a way for the Justices to settle the Johnson retroactivity question. If so, then the Supreme Court may well be on the verge of doing something it hasn't done in decades (and of settling a messy, messy circuit split in the process).
Thursday, December 03, 2015
"Joint" Post on Pot Federalism, by Jessica Berch and Chad DeVeaux
We’re glad that we lived to post another day and that our budding thesis has not yet gone up in smoke. This week Chad and I are writing together to lay out the potential responses a prohibitionist state may deploy to deal with spillover from a pot-friendly neighbor. Until recently, prohibitionist states had two obvious and unsatisfying options — sue their neighbors (as Nebraska and Oklahoma have done), or step up the already draconian penalties for pot possession. The Tenth Circuit recently accepted the scholarly consensus that a state may regulate out-of-state conduct if that conduct affects a substantial number of in-state residents — at least so long as “the burden imposed” on interstate commerce is not “clearly excessive in relation to the putative local benefits.” If this holding stands, it opens a wealth of other options (in my view) or a Pandora’s Box (in Chad’s).
On one end of the spectrum, scholars argue that States can (and should) enact laws punishing their citizens (both civilly and criminally) for getting high while visiting a pot-friendly state. At the other end of the spectrum, other scholars believe that state lines demark absolute regulatory barriers.
Mark Rosen has argued that when a state legalizes formerly taboo conduct (e.g., gambling) such experimentation presents what he calls a “travel-evasion” problem. Such state experiments, he posits, threaten the sovereignty of more-restrictive states. By “giv[ing] citizens the power to choose which state’s laws are to govern them on an issue-by-issue basis,” heterogeneous state laws “cripple the ability of [less-permissive] states to accomplish constitutional objectives.” 150 U. PA. L. REV. at 856. Professor Rosen’s theory implies that prohibitionist states can bar their citizens from — and criminally punish them for — purchasing marijuana or getting high in pot-friendly states.
Others argue that states should take a more measured response. I argue that because a state is “not compelled to lower itself to the more degrading standards of a neighbor,” Illinois v. City of Milwaukee, 406 U.S. at 107, a state has limited authority to regulate extraterritorial conduct. I’m concerned that application of Professor Rosen’s theory would further exacerbate the already epidemic rate of mass-incarceration. I also believe that (as Chad himself has argued in his Boston College piece) because pro-pot states create negative externalities analogous to pollution that spill over into neighboring jurisdictions, it is reasonable for those negatively affected neighbors to impose civil liability on the polluters. Indeed, this reasoning underlies the Tenth Circuit’s conclusion in Epel that Colorado may regulate coal-burning plants in neighboring states.
In the middle of the spectrum is Lea Brilmayer. Confronting divergent State laws on assisted suicide and abortion, Professor Brilmayer proposed her “Interstate Preemption” theory. She contends that “[s]tates . . . possess the power to regulate their citizens’ conduct in other states in the usual case,” but posits that the host state’s law will “preempt” the home state’s law in those comparably rare occasions when the host’s law manifests a conscious decision to make the conduct in question an “affirmative right,” rather than an expression of “mere indifference” to the conduct. 91 MICH. L. REV. at 877-78. The myriad different marijuana regimes — from enforced prohibition (Idaho), to de facto decriminalization (New York), to apparent enshrinement as a constitutional right (Colorado) — will affect a neighboring state’s ability to enforce its own marijuana laws differently.
Further along the spectrum falls Seth Kreimer. What some critics deride as a “travel evasion” problem, Professor Kreimer argues is a feature of federalism, not a bug: “When citizens can choose among and compare the virtues of the permission of assisted suicide in Oregon, covenant of marriage in Louisiana, . . . and same-sex unions in Vermont, we are likely to have a society that is morally richer, practically freer, and personally more fulfilling . . . .” 150 U. PA. L. REV. at 974. He argues that states do not have the authority to forbid their citizens’ extraterritorial acts when those acts are permitted by the host state. In Professor Kreimer’s view, a state’s efforts to deny its citizens the right to partake in activities permitted by the host state run afoul of the Citizenship Clause of the Fourteenth Amendment, the Commerce Clause, and the Privileges and Immunities Clause. 67 N.Y.U. L. REV. at 451. Extending Professor Kreimer’s views to marijuana would seem to leave prohibitionist states with few options to combat spillover.
Finally, at the opposite end of the spectrum (from Professor Rosen) is Chad. He advocates an expansive view of the dormant Commerce Clause’s (possibly defunct) ban on direct regulation of extraterritorial commerce. He previously argued that the DCC should be read to prohibit the certification of multi-state class actions under a single state’s law. 79 GEO. WASH. L. REV. at 995-1000. Even after the Tenth Circuit’s opinion, he stubbornly adheres to this view.
Chad posits that the DCC protects “the autonomy of the individual States within their respective spheres” by dictating that “no state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” 79 GEO. WASH. L. REV. at 1005-06. If the DCC's extraterritoriality bar has gone gently into that good night, Chad argues that the marijuana-legalization fight will lead to chaos. Prohibitionist states may seek to directly regulate transactions in neighboring states, pressuring pro-pot states to enact legislation protecting their nascent marijuana markets from foreign interference. He asserts that the extraterritoriality doctrine’s demise will open “the door . . . to the rivalries and reprisals” that the Commerce Clause was designed to avert. In short, under his expansive reading of the DCC, prohibitionist states are limited to the two meager options first explored — litigation or increased criminal penalties.
This has been but a 10,000 foot overview of the present dilemma. Next time, Chad and I will more thoroughly explore our own respective theses — and to be “blunt,” I will explain why his view is wrong! (Chad requires me to say that he will show how it is my view that is, in fact, wrong.)
Second Circuit Sides with the "Cannibal Cop"
Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case. The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.
A brief recap of the case: Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet. He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes). A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy." All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day. Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.
The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay: "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."I see at least three important aspects of this case:
First, as pointed out by Judge Straub's dissent, both Judge Gardepehe and the majority rather boldly set aside the jury's conclusion that Valle's conversations were not merely fantasy. Indeed, a number of other courts addressing Internet sex-related crimes have acknowledged that the defendant presented a potentially viable fantasy defense but nonetheless deferred to the jury’s assessment about the credibility of that defense. See, e.g., United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007); United States v. Howard, 766 F.3d 414 (5th Cir. 2014). The court does really seem to be reweighing the evidence, but this reweighing is demonstrably infused with an awareness of the need to separate out fantasy from real crime. This is an issue that courts will increasingly be called upon to tease out in the Internet era, as people's intimate lives have become both more transparent and more easily admissible in court. Jurors sitting in a single trial are less likely to be sensitive to this need and are more likely to be swayed, as the court recognizes, by a sense of disgust or revulsion. As tempting as it may be to defer to jurors' common sense in these matters, the court recognizes the difficulty of soberly teasing apart fantasy from criminal intent. Relatedly, in an HBO documentary about this case (Thought Crimes), I was struck by an interview with one of the jurors, who said the jury was convinced Valle "wanted to do it." This, of course, is not the relevant inquiry.
Second, and relatedly, the court recognizes the limited probative value of Internet searches, namely that is inappropriate to conflate an interest or curiosity in a particular subject matter with an actual intent to move forward with that fantasy. "Valle’s Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent." (p 21). Judge Straub counters that the jury could reasonably deduce that his inquiries showed criminal intent (p 57), but this again assumes that a reasonable person has a good grasp on how people use the Internet to explore sexual interests. There’s a growing body of research showing that people search a wide range of “wicked” thoughts online, and as legal scholars like Neil Richards have argued, search history is often an externalized recording of our inner thought processes. It therefore shouldn’t be conflated with probative evidence of our intended actions. As the majority in Valle acknowledges, “the link between fantasy and intent is too tenuous for fantasy alone to be probative.” (p. 4)
The "Cannibal Cop" case may seem like an anomalous case with a strange outcome driven by very strange facts. However, as I am examining in a new paper, it raises important questions that have and will continue to plague courts: what line should the law draw between the virtual and the real? what inferences can we draw from Internet and social media activity? how can judge, juries, and prosecutors adapt free speech and due process to unfamiliar and uncomfortable subject matter made newly transparent?
Wednesday, December 02, 2015
Posner, Porn, and Prison
Decision here. The Seventh Circuit, via Judge Posner, upholds warden's interception and confiscation of a number of pornographic magazines, but in extended dicta questions the wisdom of the prison's pornography ban. Judge Posner points to a number of studies showing little (or even inverse) correlation between violence and pornography in prison. Now, I have no idea what the prison's past experiences with inmate pornography have been, but I do think the nudge towards empirics and social science is an improvement over the "common sense" fears that tend to drive regulation of sexual content. For a good overview of this tendency, I highly recommend Allegra McLeod's California Law Review article from last year.
Tuesday, December 01, 2015
World AIDS Day: Non-disclosure, Criminal Law, and Contracts
Many thanks to Prawfsblawg for hosting me this month! I look forward to discussing my scholarship and sharing some of my favorite cat videos in the coming weeks. I thought I'd start, however, on a more sober note:
Today is World AIDS Day, and I wanted to share two recent items about how the law handles--and mishandles--issues of HIV disclosure. The first is this excellent, yet disturbing, write-up of the trial of Michael Johnson, a black, gay, HIV-positive college wrestler given a 30 year sentence for not disclosing his HIV status to his sexual partners. Although Johnson maintains that he in fact disclosed his status, the article does a good job connecting his conviction to issues of racism, homophobia, and a widely held (and mistaken) belief that no one would have consensual sex with someone HIV-positive. Johnson's case highlights an increasingly wide schism between highly punitive non-disclosure laws and today's reality of HIV treatment and prevention. Current treatments allow HIV-positive people to have a life expectancy roughly comparable to the average US population and can reduce viral loads to undetectable, nontransmittable levels. The best way to prevent the spread of HIV is through testing and treatment, yet criminalizing non-disclosure can deter people from getting tested and taking on the legal obligations that might come with their results.
The other item concerns, perhaps unsurprisingly, Charlie Sheen. Much has been written about Sheen's potential legal issues in the wake of his HIV disclosure (see, e.g., here, here, and here), but I wanted to focus on one interesting detail. Sheen reportedly required his sexual partners to sign a non-disclosure agreement, with liquidated damages of $100,000, covering any personal or business information obtained during time spent with him. The NDA was exclusively leaked to the esteemed repository of legal research, InTouch Weekly. My initial reaction to the NDA was in line with with most others: forcing young women to sign a contract before sex seems sleazy and censorial, designed to insulate potentially humiliating, abusive, or exploitative behavior. After thinking some more about Sheen's circumstances, however, things may be a bit more complex and perhaps sympathetic. As highlighted in the previous paragraph, Sheen's HIV status put him in a rather difficult bind. If he complied with his legal obligation to disclose his status, he faced the high likelihood that his status would either be sold to the press or used as blackmail (which reportedly it was). And even though Sheen had an undetectable viral load--and thus posed minimal risk of infection to his partners--he was at the very least arguably under a moral obligation to disclose that risk. An NDA in these circumstances might thus be a way for Sheen to disclose his status while navigating the unique circumstance of being an HIV-positive celebrity. This is certainly not meant to beatify Sheen, but it highlights an effort to use contract law to organize intimate affairs in the face of continued fear, stigma, and misinformation about sex and HIV.
(By the way, aside from the bigger policy issues, Sheen's NDA is chock full of geekery: sexual consideration (see my student note!); arbitration clauses; copyright assignments (more here); and contracting for irreparable harm)
In the spirit of World AIDS Day, I hope this post will encourage a few more people to learn about the current state of HIV and AIDS, both in the US and abroad. Here are a few useful links I've come across in the past few weeks:
Monday, November 16, 2015
How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)
Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years--issue an "original" writ of habeas corpus.
To unpack this dense but significant topic, Part I flags the origins of the problem--the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari--and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling.
I. AEDPA and Tyler v. Cain
Of all of AEDPA's restrictions on post-conviction relief, perhaps none are more sweeping than the limits on "second-or-successive" petitions filed in federal courts by state or federal prisoners. As relevant here, AEDPA requires petitioners in such cases to first get permission to file such a claim from the Court of Appeals, which may only "certify" the claim if, as relevant here, it relies upon "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
In other words, unless the claim is based upon newly discovered evidence, second-or-successive petitions can only go forward when they rest upon new Supreme Court decisions that, under Teague v. Lane, may be enforced retroactively. (Under Teague, new "substantive" rules may be retroactively enforced, whereas new "procedural" rules may not, unless they are "watershed" rules of criminal procedure). That part is clear (or, at least, well understood). What's less clear is the meaning of the word "made" in the emphasized language above: Must the Supreme Court expressly state that the particular new rule in question is retroactive, or is it enough that the retroactivity of the rule obviously follows from--and is effectively settled by--other existing Supreme Court retroactivity precedents?
In Tyler v. Cain, the Justices considered this very question, and ruled, 5-4, that "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." But Justice O'Connor, whose vote was necessary to the result, opened the door to a slightly broader interpretation in her concurrence. As she wrote,
a single case that expressly holds a rule to be retroactive is not a sine qua non for the satisfaction of this statutory provision. This Court instead may “ma[k]e” a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. . . . [I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.
In the 14 years since Tyler, the lower courts have generally followed Justice O'Connor's concurrence, rather than Justice Thomas's majority opinion. The debate, instead, has focused on whether particular rulings qualify as a "Case Two." The latest battleground on this question involves the Court's June decision in Johnson.
II. Johnson and the Circuit Split
In Johnson, as noted above, an 8-1 Court struck down the so-called "residual clause" of the ACCA on the ground that it is impermissibly vague. As a result, not only are sentences based upon the residual clause no longer valid, but individuals who have already served what would otherwise be the statutory maximum (10 years) are presumably entitled to release, since there is no longer any positive authority for their continuing incarceration. Although there's therefore little question that Johnson falls on the "substantive" side of the Teague line, there's also nothing in Justice Scalia's opinion for the Court that says as much--and that therefore clarifies, per Justice O'Connor's Tyler concurrence, that Johnson's new rule is "of that particular type." In other words, Johnson may or may not be a "Case Two," depending upon whether the Court has to expressly say that it's a substantive rule, or whether it's enough that, based upon prior decisions, it's clear that its rule is substantive.
That's the issue on which lower courts have divided. As of this writing, five circuits (the First, Second, Seventh, Eighth, and Ninth) have authorized second-or-successive claims based upon Johnson, with the First, and Seventh providing detailed opinions explaining that, in their view, it's sufficiently clear from existing Supreme Court precedent that Johnson's rule is substantive, and is therefore an example of Justice O'Connor's "Case Two." Three circuits (the Fifth, Tenth, and Eleventh--over a dissent) have held to the contrary--reading Justice O'Connor's concurrence to require some explicit recognition by the Court that a new rule is "of that particular type," i.e., substantive for purposes of retroactive enforcement.
This circuit split is deeply problematic in two respects: First, it creates massive inequities as between federal prisoners convicted under ACCA's residual clause in the five circuits that have allowed second-or-successive Johnson claims and the three that haven't--with those in the latter category now in prison pursuant to convictions that, at the very least, should trigger resentencing, if not (for those who have served 10 years) outright release. Second, because AEPDA imposes a rigid one-year statute of limitations on second-or-successive claims, those serving potentially unlawful sentences have a closing window within which to obtain relief based upon Johnson. Under AEDPA, such claims must be filed by June 26, 2016--the one-year anniversary of Johnson itself. Thus, the circuit split needs to be resolved by the end of this Supreme Court Term--if not sooner.
Usually, of course, there's an easy way to resolve a circuit split like this one; the Court just grants certiorari to review one (or more) of the circuit-level decisions. Here, however, that's not possible: AEDPA itself takes away the Court's certiorari jurisdiction in cases in which the Court of Appeals denies certification (which insulates the Fifth, Tenth, and Eleventh Circuit decisions from review), and the party that lost in the other five circuits that granted certificates--the federal government--hasn't sought certiorari, ostensibly because it agrees that Johnson can be enforced retroactively in second-or-successive cases.
Thus, AEDPA, Tyler, Johnson, and the government's litigating position have produced something of a perfect storm--where there's a major circuit split, and no immediately obvious way for the Supreme Court to resolve it. Enter In re Butler, a petition for an "original" writ of habeas corpus from the Supreme Court.
III. The Supreme Court's "Original" Habeas Jurisdiction
There are few topics in Federal Courts in which there's a bigger disconnect between academic interest and real-world significance than the Supreme Court's so-called "original" habeas jurisdiction -- "'original' in the sense of being filed in the first instance in [the Supreme] Court, but nonetheless for constitutional purposes an exercise of [the] Court's appellate (rather than original) jurisdiction." Ever since Ex parte McCardle, the Court has alluded to "original" habeas writs as a crucial constitutional backstop -- "an unorthodox but sometimes necessary means of exercising review in situations where other avenues for relief are either practically or formally unavailable." Thus, the theoretical availability of original habeas has allowed the Court to sidestep the grave constitutional questions that would otherwise have arisen from various efforts to strip the Court's appellate jurisdiction in habeas cases, including in McCardle itself, and, more recently, Felker v. Turpin.
In Felker itself, the Court was also dealing with AEDPA's limits on its certiorari jurisdiction over second-or-successive petitions, and had no trouble recognizing its power to issue "original" writs of habeas corpus, which AEDPA left untouched, as an available remedy in appropriate cases--and one that obviated constitutional objections to AEDPA under the Exceptions Clause of Article III. As Justice Souter warned in his concurrence, though, "if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress's Exceptions Clause power would be open." And, in an eerily prescient coda, he added, "The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard," i.e., exactly what has happened after Johnson.
Justice Souter's warning has proven prophetic; although the Court has received a number of serious, significant original habeas applications in the 19 years since Felker, it has yet to grant a single one, even in a 1999 retroactivity case in which the federal government agreed that original habeas was warranted on remarkably similar facts [the issue in that case was eventually resolved--against retroactivity--in Tyler]. Some of these petitions have come in high-profile capital cases, such as those of Troy Davis and Warren Lee Hill, where original habeas was the only way to prevent potentially unconstitutional executions. But whereas those cases may present more emotionally stirring narratives, the Johnson retroactivity issue is, in some ways, a cleaner vehicle for an original writ, since (1) the question before the Court isn't a "merits" question, but a simple retroactivivty question; and (2) the relevant statutes specifically contemplate that the Supreme Court, and not the lower courts (or state courts), will provide the definitive answer to that question. At the very least, if the Court wasn't going to grant in cases like Davis and Hill, and if it's not going to use original habeas to resolve disputes like the Johnson retroactivity issue, then original habeas really is a historical relic--and the constitutional questions Justice Souter worried about might finally have to be confronted.
IV. Using Original Habeas to Solve the Problem
If you're still reading, hopefully I've convinced you by now that the Court should grant an original writ of habeas corpus to resolve the Johnson retroactivity issue (or, at the very least, should set the matter for full briefing and argument). There's at least one other pending original application raising the same question, but what makes Butler so attractive is the sentencing issue--because he has already served 10 years, he's entitled to outright release if Johnson is enforceable through a second-or-successive petition, meaning that the Court could simply grant habeas relief and be done. But should the Court do more than just grant the writ? Briefly, let me sketch out two further steps the Court can take--and then explain why, in my view, one is clearly better than the other:
A. Hold that Johnson is Retroactive
Beyond simply granting the writ in Butler's case (which would leave other cases unsettled), the easiest way out, which would take about a paragraph, would be to expressly hold that Johnson is a "substantive" rule under Teague, and to therefore "ma[k]e" it retroactively enforceable in second-or-successive petitions under AEDPA. Such a ruling would then allow prisoners in the Fifth, Tenth, and Eleventh Circuits to obtain relief--including resentencing and, in cases like Butler, outright release. That wouldn't resolve the circuit split; it would simply moot it, since there would no longer be any question over whether the Supreme Court had "made" Johnson retroactive.
B. Resolve the Circuit Split Over the Meaning of Tyler
The shortcoming of that approach is that, while it would moot the circuit split over Johnson, it wouldn't resolve the cause of the circuit split--i.e., lingering disagreement over the meaning of Justice O'Connor's Tyler concurrence. Thus, to avoid this exact scenario from arising again, the Court could use an original writ in a case like Butler to clarify who has the better of Tyler--the circuits that interpret it liberally to allow retroactive enforcement whenever it is sufficiently clear that a new rule is substantive, or the circuits that interpret it narrowly to require the Supreme Court to specifically say that a new rule is substantive. I have my own views on how the Justices should answer that question (both on the merits and to spare them from having to take pointless follow-on cases after each new rule is announced). But however this question is resolved, it should be clear that settling it in the context of Johnson will have a salutary effect for future litigation.
* * *
In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction--and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority--and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.
Wednesday, November 11, 2015
The Fungibility of Intentional and Unintentional Punishment
In my prior post, I argued that punishment theorists often speak of punishment in a narrow sense that only applies to intentional inflictions while people more generally tend to think of punishment in a broader sense that includes not only intentional inflictions but others that are foreseen (and maybe even just foreseeable). Much is at stake here because if retributivists only attempts to justify intentional inflictions, they will fail to justify anything like our actual punishment practices which include lots of harm that are foreseen but are arguably not intended as punishment (e.g., the harms to offenders and their families from being deprived of each other; the reduction of First Amendment rights when imprisoned, the emotional distress of confinement, etc.).
Alec Walen, in his helpful and interesting entry on retributivism in the Stanford Encyclopedia of Philosophy, tries to fill the gap. He offers what I think of as a non-punishment shadow theory to justify aspects of our punishment practices not directly addressed by the retributivist justification of punishment. To my claim that retributivists fail to justify punishment to the extent that they fail to justify the varied emotional suffering prisoners experience, Walen writes:
[E]ven unintended differences in suffering are morally significant. But they can justifiably be caused if (a) the punishment that leads to them is itself deserved, (b) the importance of giving wrongdoers what they deserve is sufficiently high, and (c) the problems with eliminating the unintended differences in experienced suffering are too great to be overcome.
Kudos to Walen for acknowledging that (non-accidental) unintended inflictions of harm require justification. That's a point I've been emphasizing for a while. Some retributivists (see p. 24 here) would like to say that they simply need not justify side effects of punishment because these side effects are not punishment. But all of our actual punishment practices involve both intentional and unintentional harms. Carving off intentional inflictions of punishment from the broad notion of punishment leaves retributivist discussion cut-off from real-world punishment practices.
I'm afraid, though, that Walen says too little to defend his three-part test. He simply asserts it (perhaps confident in its double-effect style reasoning). His (a) and (b) essentially say that if the value of retributive punishment is high enough, then it justifies punishment side effects. But this is exactly the claim I've been calling on retributivists to justify and explain in more detail. Here it's just an assertion and not clear that the condition is ever satisfied. Moreover, it provides no affirmative reason to inflict side effect harms. On Walen's view, retributivism offers no justification for side-effect harms except to the extent that they are needed to inflict intentional harms. And these are serious harms. Imagine if we put school children in an environment with a high risk of sexual assault. Outrageous! Yet that's what we do with prisoners. So the justification of the side-effect harm has to be quite strong. It can't be "used up" by the fact that we've already relied on desert to justify delivering proportional punishment. Moreover, can we not imagine non-incarcerative methods of punishment with fewer side effect harms? (To the extent retributivists support incarceration, it's awfully convenient for them that this method of giving people what they deserve also happens to incapacitate the dangerous.)
Two further points: First, Walen's view seems to accord with my own claims that we need to measure the subjective experience of punishment, at least in some respects. How can we be confident that the value of retributive punishment exceeds the side effect harms if we don't measure those harms?
Second, Walen is saying that we have affirmative reasons to impose the intentional inflictions of punishment and permission to impose side effects. I wonder, however, why we don't have to adjust the purposeful inflictions to accommodate the side effects. If A and B are equally blameworthy but A will experience his confinement much more severely, why incarcerate A and B for the same period of time if there is an easy method of making their total harm more equal?
My point is easiest to understand when the units of intentional infliction of harm are the same as the units of side-effect harms. Imagine a futuristic method of punishment. Rather than incarcerating offenders, we spray them with "gravitons" that limit their liberty by slowing them down. Future retributivists have solved problems of proportionality and simply look up an offense, say 100 units of crime seriousness, and then set their guns to 100 gravitons so that the intentional infliction of punishment precisely matches offense seriousness.
There is a catch, however. Graviton guns fire 15 extra units 98% of the time. So setting the gun for 100 units will typically spray 115 units. If the value of retribution is significantly high in some case, Walen seems committed to the view that you can set the gun to 100 and fire away, almost certainly leading to someone receiving 115 gravitons total. I think most of us would say, and perhaps Walen would agree, that you have to set the gun to 85 units to achieve the ultimate 100 units. But notice that doing so falls short of the goal of intentionally inflicting 100 units of punishment. (One might quibble about what your intentions really are if you set the gun to 100, given that it fires in excess so frequently. But note this is not an unrealistic assumption. We sentence people to deprivations of liberty in prison knowing that they will suffer side effect harms with probability greater than 98%.)
In any event, if you agree that it would be better to set the gun to 85 units, then don't we have to shorten prison sentences to accommodate harms that we inflict as side effects? This is where standard double-effect reasoning may break down. The intentional portion of sentences can be titrated up and down to make up for foreseen side effects. So the crux of the debate may turn on how fungible the intentional and unintentional harms of punishment are and how strong the obligation is to avoid side-effect harms. Walen offers some comments in his piece suggesting that side-effect harms are not fungible with intentional inflictions, a topic I'll discuss in an upcoming post.
I should add that one cannot fault Walen for his brief discussion of how he would justify the side-effect harms of punishment. He's writing, after all, in an encyclopedia entry. But to the extent he claims to cite a flaw in my reasoning, I see insufficient discussion to backup his claim. (Adapted from work in progress.)
Tuesday, November 10, 2015
Broad and Narrow Punishment
H.L.A. Hart famously claimed that a central feature of punishment is that it is "intentionally administered” to an “offender for his offence.” Many punishment theorists share Hart's view that punishment essentially concerns an intentional infliction. I will emphasize, however, how extraordinarily narrow this view of punishment is:
(1) Credit for time served inconsistent with the narrow view: When people are detained before trial, we typically don't say they are being punished. After all, they haven't been convicted of any crime. So, consistent with Hart so far, we are not intentionally administering painful or unpleasant consequences on pretrial detainees for an offense. However, when pretrial detainees are subsequently convicted, they almost always receive credit against their punishments for each day they were detained. We reduce the punishment they must serve by the supposed non-punishment of detention. We do the reduction, I believe, because we think the harms of detention (even though not intended as punishment) are essentially the same as punishment, such that we reduce punishment day-for-day with detention. Hence, contra Hart, amounts of punishment depend on more than just those inflictions that are intentionally administered as punishment. (See here for more.)
(2) Our intuitions of punishment severity extend beyond the narrow view: Suppose Judge A in State A sentences a defendant to four years in prison for a particular crime. The judge, and if you'd like, the citizens and legislators in his state have a very vivid idea of what goes on in prison and it is the purpose of the judge (and the citizens and legislators) that the defendant undergo many hardships in prison (worse food; separation from family; loss of sex life, etc.). By contrast, Judge B in State B sentences a different defendant to four years in prison for a crime of equal seriousness. Both defendants, let us assume, are equally worthy of blame. In State B, however, the judge and the citizens and legislators have only vague notions of prison life. It's their purpose that B be deprived of liberty for four years, but they don't think about the side effects, such as the food being bad or the harms of separating from one's relatives. We could say that the judge et al. know about these things, but it's not their purpose that the defendant undergo these hardships.
So A and B are otherwise alike in all pertinent respects; they are incarcerated in identical conditions for four years and they experience confinement in exactly the same way. Wouldn't we say that their punishment severity is the same? That is, even though A and B differ dramatically in the amount of "narrow" punishment they receive, when asked whether their punishment severity is the same, we're inclined to say yes. That is, we are inclined to focus on punishment in the broad sense. We probably don't care precisely which hardships of prison are purposeful and which are merely foreseen when assessing amounts of punishment. (See here for more.)
Why does all of this matter? Those punishment theorists who only purport to justify intentional inflictions (see p. 24 here) cannot justify real-world punishments (or must offer a non-punishment, shadow theory to justify these other aspects of punishment) for all punishments include unintended side effects. I'll also use the distinction between broad and narrow punishment in my next post to reply to Alec Walen's comments on my work in his entry on retributivism in the Stanford Encyclopedia of Philosophy .
Thursday, October 29, 2015
Yes Virginia, there is a trial penalty, and it's four times larger than we thought
Last year David Abrams, Penn, stunned the criminal law world with a study concluding that defendants actually receive shorter sentences at trial than they do for pleading guilty. Rather than "penalizing" those who exercise their right to trial, we actually punish those who plead guilty more harshly, turning decades of plea bargaining debates on their head.
Abrams was wrong, and he’s not the only one.
My latest article reveals significant conceptual and statistical errors in the canonical methodology that cause most other studies, including those by the United States Sentencing Commission (USSC), to greatly underestimate the trial penalty. Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study.84 Miss. L. J. 1195 (2015) (Selected through peer review). Where leading researchers report that the federal trial penalty is only around 3-15%, I find that the average federal trial defendant receives sentences around 64% longer than if they had pled guilty instead. In other words, federal defendants cannot exercise their constitutional right to trial unless they are willing to risk a 64% longer sentence, a heavy "penalty" indeed. Where Abrams reports that Chicago defendants pay a similar penalty for pleading guilty, I reveal that his data actually suggests that plea defendants receive shorter sentences than those who go to trial.
Applying these findings, I demonstrate that the federal trial penalty is so large that only a tiny fraction of defendants could ever rationally choose to go to trial. In such a system, the constitutional right to trial by jury becomes less of a “right” and more of a trap for fools.
Why are my findings so different than everyone else's? Glad you asked.
[More after the fold]
The biggest reason prior federal studies underestimate the trial penalty is that they fail to include the effects of the "acceptance of responsibility" discount. Under the Federal Sentencing Guidelines, defendants who “accept responsibility” by pleading guilty automatically receive a 2-3 point discount to their sentences, but lose this discount if they insist on trial. As such, it operates as a statutory plea discount, or "trial penalty," that sets the baseline for all plea negotiations. Because prior studies do not include the effects of acceptance of responsibility, they heavily underestimate the price defendants actually pay for going to trial. Acceptance of responsibility is written into the guidelines and the USSC's data itself, causing prior studies to miss these effects. Indeed, it is impossible to measure the effects of acceptance of responsibility without reverse engineering the data with several hundreds of lines of code, which I think I am the first to do.
I next explain that rather than measuring the "trial penalty" as that term is understood in crim law debates, Abrams asks whether a rational defendant would be better off going to trial. Defendants are better off going to trial if they face a negative "Abrams Trial Penalty," which Abrams claims to find. Abrams is quite upfront that he is not measuring the traditional trial penalty and, indeed, argues that crim scholars should focus on his new metric. The problem is that crim scholars generally do not discuss this metric because it is usually impossible to measure. A positive Abrams Trial Penalty would indicate that the average plea defendant receives a percentage discount that is larger than their percentage odds of acquittal if they went to trial. Because plea defendants do not go to trial, however, we cannot know what their odds of acquittal would have been without a highly expensive controlled experiment. (FYI, I'd be open to grants to explore the question!). As I explain, Abrams' innovative methodologies cannot overcome this fundamental problem. By reanalyzing Abrams' findings, however, I show that the normal "trial penalty" in Abram's dataset is likely positive: defendants do pay a price to go to trial.
In addition, Abrams and many prominent scholars report average sentences as the average sentence excluding defendants that receive probation only. Because probation only is the lightest sentence you can receive, however, excluding those cases artificially inflates the average sentence and produces a metric that is quite misleading and largely irrelevant to crim law debates. Nonetheless, many well known sentencing scholars, including some commissioned by the USSC, persist in reporting the "average incarceration sentence" rather than, or in addition to, the actual average sentence defendants receive. As I explain, this peculiar metric appeared in the 1980's due to fundamental misunderstandings about the nature of censored data and selection effects, and confusion about the proper application of the Heckman 2-step correction factor and Tobit regression to control for censoring. (End stat technobabble). This and other common methodological errors are discussed further in my piece. (I put most of the technical stuff in footnotes).
One major limitation of my study is that, like virtually all sentencing studies, it cannot account for the effects of charge bargaining. Because charge bargaining works to increase the trial penalty, however, it does not affect my final conclusion that for the vast majority of federal defendants, trial by jury is not a "choice" or a "right." It is a "mistake."
Wednesday, October 07, 2015
Should the Umpqua shooter's mother be liable?
Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0
Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?
Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:
[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . . Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation. This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.
Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law. [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases. [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths. [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing. It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer. [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.
Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.
I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!
Monday, September 14, 2015
Subconscious Juror Bias
I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.
I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own. (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.
That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.” The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.
In considering on appeal whether the jurors should have been removed, the Appellate Division got it:
When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)
The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.
By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.
Sunday, July 19, 2015
Complicating the "Trolly Problem"
I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast. This piece in Wired and this one in Popular Science (HT: Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question. Maybe a film, "Droids on the Mignonette"? If only Brian Simpson were still among us . . .
Thursday, June 25, 2015
“An Antidemocratic and Largely Foreign Conspiracy”
In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist. Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.
As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe). And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty. Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.”
These guys are not fooling around. It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition. The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.
The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide. So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?
For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views. To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.
What’s wrong with that?
That brings me to the Criminal Justice Legal Foundation’s amicus brief in Glossip. I originally wanted to do the Harry Potter “It that must not be named” thing—my attempt at that was yesterday’s post. But that approach has proven unsatisfactory. I’ve got to name it, because it named me, or rather the paper I just co-authored—all under the heading “The United States must not allow its justice to be obstructed by an antidemocratic and largely foreign conspiracy.” Wait, what?
That’s right, that section of the brief cites the paper, and quotes it, to show that foreign governments are “meddling” in our business—our execution business, which it alleges is of “no legitimate concern of European governments.”
I dissent. We are a sovereign state and so yes, we can execute if we please. If we can’t get the drugs to inject someone to death, we can hang them. Or shoot them. Or electrocute or gas them. We can double-down on death, no matter what the EU does.
But those European countries are sovereign states too, and they aren’t “meddling” in our affairs when they make their own decisions in response to ours.
The EU doesn’t have to sell us its drugs. We’re not entitled to them. It’s a free country (or countries, I suppose). If European countries, or nation-states anywhere else, want to use export controls to express their moral disapprobation of the death penalty, they can do that—just like we’ve done it countless times when other countries do things we find morally repugnant.
The CJLF amicus brief states in a footnote when citing the paper that “Amicus does not endorse the views of the authors, who seem to think that European government meddling in American criminal justice policy is a good thing.”
For the record, we don’t take a stand on whether these developments are a good thing, or a bad thing; they’re just a thing. I can say, however, that I don’t endorse the views of amicus any more than it endorses mine.
The US is sovereign, but no more sovereign than other nation states. Rather than fuming about foreigners meddling, we’d be better served to think about execution methods that don’t require the cooperation of nations that don’t want us to execute.
Wednesday, June 24, 2015
In Anticipation of Glossip
I’m excited. Not like Harry Potter World excited, but excited in that geeky, purely academic way that sometimes feels inappropriate in the death penalty context. The Supreme Court will issue its ruling in Glossip any day now, and certainly within the next 7 days. What will the Justices do?
I posted a comment earlier titled why is Glossip hard? so yeah, you could say I have a point of view. In this post, I’ll pick up where I left off, and think a bit more about what seems to be making this easy case hard, at least for the Court’s conservatives: abolitionist sentiment.
The reason the Court is stuck considering the constitutionality of midazolam in lethal injection protocols is that the states are stuck using it. More effective drugs—sodium thiopental, pentobarbital (of the uncompounded variety), and propofol—have all been taken off the market, or at least out of executioners’ hands, by the companies that make the drugs.
Why? In part it’s because abolitionists have played the ‘name and shame’ game, calling out drug companies whose mottos include “advancing wellness” for selling their drugs to put people to death. And in part it’s because European governments, which have long been abolitionist, have tightened their export controls. So yeah, it’s fair to say abolition sentiment of one variety or another is behind the current shortage of death dealing drugs.
That led Justice Scalia to blame the “abolitionist movement” for the mess lethal injection is in nowadays, and for Justice Alito to ask whether it was “appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty.” For the condemned, maybe those were lost votes anyway, but then Kennedy asked The Question: “What bearing, if any, should be put on the fact that there is a method, but that’s not available because of opposition to the death penalty?”
Now we’ve got everyone’s attention.
George Will says the success of abolitionists in convincing drug companies not to play merchants of death, and of European governments in enforcing their export controls, is of no moment. “Public agitation against capital punishment is not relevant to judicial reasoning,” he says, “and it is not the judiciary’s business to worry that a ruling might seem to ‘countenance’ this or that social advocacy.”
It’s worth noting that before abolitionists stumbled upon the lethal injection drug supply as a way to thwart executions, there was a shortage in the raw ingredients necessary to make those drugs. Indeed that and some other random events are what started the scramble for death drugs in the first place (as my colleague Jim Gibson and I detail in a recent article). So what if the coveted lethal injection drugs were unavailable because of problems in the upstream supply rather than downstream distribution?
I’m left wondering why it matters why the traditional drug protocol is unavailable; indeed, why abolitionist sentiment is in this at all. The ‘naming and shaming’ on the domestic side is free speech, and the export controls on the international side are a sovereign state’s prerogative (and one we’ve used to express our moral disapprobation numerous times).
I’m with George on this one, the reason for the shortage shouldn’t matter.
Policing False Speech in Political Campaigns
I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in 281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.
A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law.
Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”
The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.
Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.”
The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.
Thursday, June 18, 2015
Oklahoma’s Latest Invention: Execution by Nitrogen Gas
In 1977, Oklahoma started a national trend when it adopted lethal injection as a new method of execution. This year, maybe it will do the same in adopting death by “nitrogen hypoxia” as a statutorily authorized alternative to lethal injection.
Oklahoma Governor Mary Fallon said she signed the bill to give the state “another death penalty option,” and if there’s one thing the state of Oklahoma likes about its death penalty (besides secrecy), it’s options. Whereas most death penalty states have one lethal injection protocol, maybe two, Oklahoma has five. And whereas most states have one method of execution, maybe two, Oklahoma has four. If for some reason lethal injection and nitrogen gas don’t work out, the state has the electric chair and firing squad also waiting in the wings. Little wonder Oklahoma has in the last several years edged out Virginia as the second most executing state since the revival of the death penalty in 1976—it’s nothing if not committed to the death penalty.
Oklahoma’s statute doesn’t say exactly how death by nitrogen hypoxia will be carried out, and it’s brand new so we’re all just guessing here, but the assumption appears to be that some sort of mask would be affixed to the condemned inmate’s head, which would then be used to pump in pure nitrogen. Nitrogen is already in the air we breathe so it’s not inherently toxic; it’s the lack of oxygen that does a person in, and that’s apparently painless. “You just sit there and a few minutes later, you’re dead,” the bill’s sponsor said. Rather than imposing death, nitrogen hypoxia “withholds life.” Sounds kinda brilliant when you put it that way.
But there’s always a hitch. Execution by nitrogen hypoxia is a one-off of Jack Kevorkian’s “exit bags” and similar techniques advocated by right-to-die advocacy groups. The problem is that its only use has been on people who wanted to die, so they weren’t trying to break the seal, or refusing to breathe, or doing whatever else one might do to gum up the works. “It requires the total cooperation of the person who is dying,” one euthanasia spokesman said of the process.
The other difference—and maybe this doesn’t matter—is that those groups use helium rather than nitrogen to get the job done, and that was off the table from the start. Indeed, even with nitrogen as the designated gas, some legislators worried that death by hypoxia would be accompanied by a brief moment of euphoria rather than pain.
In the end, we really don’t know how all this will work out, which I suppose is the case with most any innovation in execution methods. “I assume somebody must have done some research,” one state senator said—and that’s true, to an extent.
What data we have on forced inhalation of pure nitrogen comes from veterinary science, and in that experiment, the cats and dogs howled and convulsed. The American Veterinary Medical Association has taken the position that nitrogen asphyxiation is not appropriate for animal euthanasia, but that doesn’t seem to matter much. The AVMA has said the same thing about using paralytics during animal euthanasia by lethal injection, and we’ve done that to humans for decades.
All that brings me back to what the Oklahoma legislator who wrote the bill said about nitrogen hypoxia—“It’s foolproof.” I say maybe it will work, maybe it won’t. But if we think know the answer to that on the front side, we’re fooling ourselves.
Wednesday, June 17, 2015
If Not Lethal Injection, Then What?
With lethal injection on its heels (as a practical matter, maybe constitutional matter too), one question that’s on many a mind is—if not lethal injection, then what?
The electric chair is pretty gruesome—you’re stuck with the sound and smell of burning flesh and it occasionally catches the condemned person’s head on fire.
Hanging is pretty hard to get right—it’s supposed to kill by breaking the condemned person’s neck, but if the measurements are off (which is often the case), the person ends up either slowly strangling to death or getting decapitated.
And the gas chamber is reminiscent of Nazi death camps and pretty grisly in its own right—the cyanide pumped into the chamber causes the condemned to die by asphyxiation, but not before a significant amount of gasping, drooling, and retching first. Arizona got rid of its gas chamber in 1992 when an execution made the state attorney general vomit and the warden threaten to resign if he ever had to use it again. In 1999, the Ninth Circuit declared it a violation of the Eighth Amendment’s “cruel and unusual punishments” clause.
That leaves the guillotine (not a chance), the firing squad, and Oklahoma’s newest innovation: death by nitrogen gas. Today I’ll consider the firing squad. Tomorrow, nitrogen gas.
My thoughts on the firing squad bring me back to Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan. I quoted part of that dissent in a post last week, here’s the rest:
If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. . . . The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.
Again, I think Kozinski is on to something here. Execution by firing squad is fast (around 15 seconds as opposed to lethal injection’s 3-10 minutes, and that’s if done right). It’s effective (or at least less subject to mishaps than any other execution method—let’s not forget Wallace Wilkerson of 1878’s Wilkerson v. Utah, who cried, “My God! My God! They missed!” and then bled to death for nearly 30 minutes from shots in the arm and torso rather than heart). And it’s out in the open; no question here about what the state is doing in our name.
Two additional observations merit mention (along with a shout out to the Richmond Law student who recently published a comment advocating the firing squad in Virginia—I had nothing to do with it, by the way).
First, execution by firing squad scratches that retribution itch. This is why Robert Blecker likes it—you want blood, you’ve got it.
Second, execution has the unique feature of allowing executioners to absolve themselves from responsibility for the execution. One of them will fire a blank, and none of them knows who the non-shooter will be. Blecker doesn’t much like this aspect, but one could see how executioners might—and the states that employ them too.
Death by firing squad makes sense in so many ways. So why are we hesitant to go there? My only guess is our delicate palate, but that brings me back to Kozinski’s point. If we truly can’t handle quick, easy, low-risk executions that show us what executions are, maybe we shouldn’t be doing them.
Tuesday, June 16, 2015
Is Criticism of Lethal Injection Just a Front For Opposing the Death Penalty?
I had planned to follow last week’s post on lethal injection with a post about the firing squad as a method of execution. But I’m saving that for tomorrow in light of the numerous emails and conversations that have come my way about the relationship between one’s position on lethal injection and one’s position on the death penalty itself. Is criticism of lethal injection just a front for criticizing the death penalty?
My own experience over the past week suggests that most people think the answer is yes—if you have a problem with lethal injection, it’s because you must have a problem with capital punishment, so let’s be real about where the façade actually lies.
But the two don’t necessarily, or even logically, go together. There are plenty of people who support the death penalty on retributivist grounds (indeed, retribution is by far the most popular reason people support the death penalty today) who have a problem with lethal injection for the very reasons I mentioned in last week’s post. Law Professor Robert Blecker, an outspoken retributivist, is a prime example. Here’s what he had to say:
Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill.
Witnessing an execution in Florida, I shuddered. It felt too much like a hospital or hospice. We almost never look to medicine to tell us whom to execute. Medicine should no more tell us how. How we kill those we rightly detest should in no way resemble how we end the suffering of those we love.
Others who support capital punishment might rightly oppose lethal injection for the endless litigation, delay, and bad press it has brought the administration of the death penalty in the United States.
On the flip side, some abolitionists support lethal injection under the theory that at least when done right, this method of execution inflicts the least amount of pain upon the condemned, and until the death penalty is abolished, that’s about the best they can do. Others in this camp like what lethal injection has done for the abolitionist cause—allowed drug companies to gum up the works, brought renewed salience to botched executions, and mobilized the medical profession to take a stand its involvement in the process.
Of course, abolitionists can also oppose lethal injection, just as death penalty advocates can support it. Years ago, one such abolitionist said this in making the point, “The worst sin of all is to do well that which should not be done at all.”
Given the recent litigation in Glossip v. Gross, I’m not so sure the shoe fits anymore, if it ever did. But it’s an open—and quite separate—question as to whether that’s so because lethal injection doesn’t “do well” in executing the condemned, or because executing the condemned is something we shouldn’t be doing at all.
Wednesday, June 10, 2015
Is Lethal Injection About Us or Them?
I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip. I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.
Here’s what he wrote:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up. The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly. The point here is that we should at least be honest about what the death penalty is: brutality for brutality. And if we’re not willing to accept that, we shouldn’t be doing it.
So here’s my question: is lethal injection about us or is it about them? That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life? Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?
Perhaps it’s both, but the history of lethal injection suggests it’s a lot about us. Oklahoma was the first state to adopt lethal injection, and its legislators did not ask how do we euthanize pets, how does physician-assisted suicide work, how can we do this as pain free as possible. It was 1977, and the Supreme Court had just brought back the death penalty the year before in Gregg v. Arizona, after having abolished it in Furman v. Georgia in 1972. Legislators worried that the American public wouldn’t have the stomach for executions the old fashioned way—hanging, electrocution, gas (firing squad made a famous appearance in 1977 but never really got off the ground). They needed something that wouldn’t jar the public, something that looked much more peaceful, civilized. The answer was what would become the standard 3-drug lethal injection protocol.
I’ve been chewing on the democratic accountability point Kozinski makes at the end of the above passage: “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” We should own it, and that means we shouldn’t be executing in a way that people associate with putting down a beloved pet. It seems to me he’s on to something here.
But how far do you want to take this? one of my colleagues asked. I mean, one could go all Hunger Games on this thing, and make people watch executions on a huge screen. The more blood the better.
That’s not what I have in mind, but there is something to recognizing that the death penalty is inherently violent. It has to be; it’s extinguishing life before the body would naturally have it end. And there is something to recognizing that lethal injection hides that fact, and indeed was designed for the very purpose of hiding that from us to make it more palatable.
Friday, June 05, 2015
Despite Nebraska’s repeal of its death penalty last week, Governor Pete Ricketts has vowed to execute the 10 inmates now on death row. Here’s the argument:
Nebraska’s repeal legislation states “It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.”
The state AG’s office says the provision violates the state constitution, which gives the Board of Pardons exclusive power to change final sentences.
The repeal law’s defenders say it does not change the actual sentence of death, but rather removes the state’s ability to carry it out, just like repeal legislation in other states. And as for the intent provision, well that’s just an intent provision; it doesn’t carry the force of law.
In my mind, the issue is purely academic (which, I’m an academic, so fine by me) because Nebraska will never get the drugs to execute anyway (yesterday’s post).
But this one has me scratching my head. Other than the intent provision, the bill effectuates the repeal by simply amending the classes of felonies from 9 to 8 and striking out the death penalty as the highest class one felony. So there’s that change, and the intent provision. That’s it.
On the one hand, I think the constitutional claim has legs—it’s one thing to pass repeal legislation, and quite another to legislatively change someone's sentence. And the intent provision in the statute is the clearest indication of what the statute is intended to do, change the sentence.
On the other hand, the only operative language in the amendment is just removing the death penalty as the highest penalty, and functionally, that does change death sentences to life, which is clearly what intent statute, although perhaps inartfully drafted, is trying to communicate. Besides, once Nebraska repealed its death penalty, it has no need to literally change existing death sentences to life, because as a practical matter those death sentences cannot be carried out anyway.
Recognizing that, a literal reading of the intent provision can’t be the legislature’s intent, which is itself a sad state of affairs.
Thursday, June 04, 2015
Nebraska’s Governor said he did (or at least promised they were on the way) while trying to fend off the state’s repeal of the death penalty last week. For those who missed this nail-biter, Nebraska’s unicameral legislature had voted to repeal the death penalty, the governor had vetoed the repeal measure, and the legislature was gearing up to override the veto (they needed 30 votes, and pulled exactly 30).
Nebraska is the first Republican-controlled state in over 40 years to repeal the death penalty, a fascinating account in a number of ways. I’m not sure it’s “a Nixon-visits-Red-China moment” but it’s big. When it makes a John Oliver segment, you know it’s big (and messed up in some strangely entertaining way).
It’s fascinating that Governor Pete Ricketts responded with the tweet: “My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families.” I found myself shouting at my computer when I read this, like some crazy sports fan yelling at the TV. “Are you serious?” I asked (expletives redacted). “Are you aware that Nebraska hasn’t had an execution in almost 20 years? You do know that your death row of 11 just dropped to 10 because another guy died waiting to be executed, right?” Nebraska’s death penalty was a waste of time and money, which is part of the reason conservatives voted to repeal it.
But what I find especially fascinating is the role that lethal injection drugs—or more accurately, the lack thereof—played in Nebraska’s repeal. Here’s the backstory:
When drug manufacturer Hospira pulled out of the sodium thiopental market in early 2011, death penalty states scrambled to replace the supplier. They had to. Thiopental was the first drug in the then-standard three-drug lethal injection protocol.
Nebraska was memorable in this regard because it bought thiopental from a broker in India, who, as it turned out, had gotten the drug from a Swiss manufacturer that was adamantly opposed to the use of its product in executions. When the Swiss manufacturer found out, it demanded that Nebraska give its drugs back. Nebraska said no. (My colleague Jim Gibson and I detail this story and others in a forthcoming article on the international market for death penalty drugs).
Fast forward to 2015. Nebraska has been out of thiopental for years, everyone knows the drug isn’t gettable any longer, and the legislature is about to override the governor’s veto. On the eve of the vote, the governor makes an announcement: he’s got the drugs. $54,000 later, they’re on their way—from the same broker that sold the state someone else’s drugs in 2011. No need to repeal, Nebraska can start executing again. Maybe the rest of the country can too.
Except, hold up. The thiopental shortage wasn’t just about suppliers refusing to sell. It was also the result of a 2013 DC circuit court decision forcing the FDA to enforce its import controls, which basically put the kibosh on states’ efforts to import thiopental for lethal injection purposes, a “concededly misbranded” use.
The Nebraska Attorney General says the DC circuit decision doesn’t apply to it because it wasn’t a party to the case. I’m yelling at my computer again. Does the state AG really think Nebraska is exempt from FDA enforcement of import controls because it wasn’t a party to the case that started the enforcement?
The FDA said this in response: “With very limited exceptions, which do not apply here, it is unlawful to import this drug, and the FDA would refuse its admission into the United States.”
Nebraska says it’s going ahead with the executions, despite the repeal, as soon as the drugs come in—which I think means never, but its claim of authority for doing so is the topic of my next post.
In the meantime, I find myself wondering whether the administration’s actions here were just a political ploy, or whether the problems with procuring death penalty drugs have become a bona fide tipping point for repeal and/or retention. If the latter, then the international market for death penalty drugs has had an impact indeed.
Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.
But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?
More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.
And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.
Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.
But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.
Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.
Monday, May 18, 2015
Justice Scalia was not pleased
Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.
While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."
Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
What can and should professors do to prepare our students to make those choices. And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available. I suspect (hope) most law professors do a good job teaching students what the law is. How to apply the law is a trickier proposition. It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case. Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making. I wonder whether these can be taught at all by anyone (or anything) other than experience.
In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case. As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that. I could anticipate it. I could rationalize it. But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client. So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do. But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use. And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”
Judy Clarke was not my student. She never called me to talk. But from what I can tell, she did a great job with a hard, hard case. In the end, the jury found her argument unpersuasive and sentenced her client to death. There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently. We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.
Saturday, May 09, 2015
Capital Punishment's Loyal Officer
It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.
The diatribe won the lions share of media attention on the case and much of it seemingly approving. The stunning nature of his attack on our adversary system has gone little remarked. Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.” He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees). He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment. He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).
Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients. Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice. Absolutely no evidence is presented or even suggested for this conspiracy. In fact, it is a mirror image of reality. The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement. As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists. Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.
The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual. Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives. Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions. Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.
Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment. Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS. One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip.
It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses. Yet in his exchanges with Ms. Konrad Justice Alito showed an injudicious interest in capital punishment as an institution. In his willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.
Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony. The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow. The harrow requires constant tinkering which the Officer enthusiastically supplies. The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim.
Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal. Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law. More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself.
Note to Prawfs readers:
This post is my first for several years and the first since our founding editor Dan Markel was murdered last August. I had intended to resume after the publication of a new book this past Fall. Dan and I exchanged emails about my return a few days before he died and planned catch up by phone the Friday he was killed. I’ve been too sad about losing Dan to post. I’m still not ready to share some thoughts about his murder (which as a criminal law professor, like Dan, I should in time do). I just want to say that Dan, although the younger colleague, was an inspiration to me about what it means to mature in life and in the law, and to take on responsibility for building something more than your own career. May his memory always be for blessing.
Thursday, May 07, 2015
Tsarnaev and Juvenile Brain Development
Despite promises in yesterday’s post that I would talk more about discretion in criminal law, a report this morning in the Boston Globe prompts today’s post on a completely different, though equally close-to-my-heart topic: juvenile brain development and criminal culpability. Yesterday, defense counsel for Boston Marathon bomber Dzhokhar Tsarnaev presented testimony essentially arguing that Tsarnaev’s punishment should be mitigated because he was young. Arguments for mercy based on the youth of the offender are hardly novel, but Tsarnaev’s defense counsel based their argument on the neuroscience of youth – particularly the impact brain development has on decision making and appreciation of long term consequences suggested decreased culpability. Yesterday the jurors in the Tsarnaev case heard testimony from Dr. Jay Geidd, a professor at the University of California San Diego and a child psychiatrist. According to the article, Geidd testified: “Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences.”
Geidd’s testimony is consistent with what every parent of a teenager knows and what many in the juvenile defense community (myself included) have argued for a long time – adolescents are fundamentally different than adults and criminal law should recognize this fact. Tsarnaev’s defense counsel is making this point in the context of sentencing – a context the Supreme Court itself has repeatedly endorsed as of late (see Roper, Graham, and Miller, all restricting or prohibiting the application of forms of severe punishment to adolescent offenders based on their immaturity). But many, again myself included, have argued that neuroscience should inform substantive criminal law as well. In my forthcoming article, Brain Science and the Theory of Juvenile Mens Rea, I argue that what is known about adolescent decisionmaking is relevant to calculations of mens rea – the state of mind element – required in all but strict liability offenses, as well as for many defenses (think self-defense for example).One of the issues that frequently arises in this context was highlighted by the Government’s cross examination in the Tsarnaev case – even with all we know about brain development generally, how do we calibrate it’s effect on any particular defendant? Put another way, is development, and its effect on adolescents, uniform? When asked this question, Geidd responded no – that many factors, including variation in development rates and environmental factors, can influence brain maturation and decision making. But what was lost in the reporting of Geidd’s response was what neuroscience studies seem to confirm: that even within these degrees of uncertainty and variance, the adolescent brain is not as developed as the adult brain and the adolescent decisionmaking process is different than the adult decisionmaking process.
You can raise all sorts of questions about where this effect fits into the hard decisions that jurors must make, whether in the context of a guilt or a sentencing phase. But what seems clear to me is that this evidence must be presented to those jurors if we are, as we claim we are, seeking to hold defendants accountable, and later to punish them, based on their corresponding level of culpability.
Wednesday, May 06, 2015
First, thanks to the folks at Prawfsblawg for agreeing to have me. For those who don’t know me, I am a former public defender, currently teaching criminal law and procedure at the University of Alabama School of Law, and I write about criminal juries and juvenile justice issues – both of which will undoubtedly supply lots of fodder for my posts this month. Today, however, I want to turn to a matter on my mind a lot lately – police power and, wait for it, speeding.
I know with Baltimore smoldering and a host of other recent events, the conversation about police power could go elsewhere. And it will, though not right now, not in this post. I should start with a full disclosure in the past four months I have received two speeding tickets. This fact, in and of itself, might not seem that surprising. But in my twenty-plus years of driving, these are my first tickets. Sure, I have gotten pulled over before. I have even gotten the stern warnings to “slow it down little lady” (I am neither little nor, according to many, a lady). But before moving to Alabama I had never gotten a speeding ticket.
Setting aside my position that I was not going the speed alleged by the officer when I was stopped, the experience of getting stopped has been fascinating from a “due” process standpoint in that there was none. Quite simply I was given the option to accept the officer’s word that 1. I had broken the law and 2. the officer had accurately witnessed my disobedience even when his and her observations contradicted my own.
Without going into the fascinating details of the stops (particularly since I have decided to go to court on the most recent one), there is a single aspect of the stop that I think warrants attention here. When I asked the officer in each stop if I could see the radar readout – which each officer cited as the evidence of my speeding – I was told I could not because each officer had already cleared it. Apparently this is the policy in Alabama, to clear the radar screen as soon as the officer decides to stop the motorist (though admittedly I have not been able to confirm this with either the police department or the district attorney’s office both of whom hasn’t called me back). With the first ticket I received, I dutifully paid my fine, protesting my innocence as I entered my credit card information online. With the second stop, I asked the officer for the make and model number on her radar gun so I could try to get some information on the gun’s method and ability to record speed and she responded “do you really want to go there, ma’am?”
At this point, as I gazed upon this uniformed, Teflon-clad, hand-on-her-holstered-gun officer, I thought a number of things but first and fore most was “go where?” My daughter, who was in the car, thought I was going to jail and looked at me pleadingly to stop talking to the police officer (of course she was also late to softball practice so I may be reading too much into her look). My criminal-procedure-loving, liberty-loving self wanted to go to a place where the State has to offer the citizen some even small amount of proof before they can detain them. In the end, the officer and I glared at each other briefly and she handed me my ticket. As she began to walk away from the car, I asked her about a court date and she came back to the window. She stood there for a moment and shook her head (literally shook her head) and said “Ma’am, you can go to court on the date listed on the ticket, but what’s the point? I am going to go in and say you were speeding and you are going to say you were not and the judge will believe me.” She walked away before I could come up with a snappy retort. Five days later, I still haven’t come up with one so I guess it’s good she didn’t wait.
All of which brings me to my point. Is the speeding ticket that big a deal in my life? Honestly, probably not, unless of course I continue to get them at this rate in which case I will likely soon lose my license. But what is a big deal, for me, and all those like me who have these daily encounters with the police, was that I had no power in the moment of the encounter—and likely will continue to have no power even as I attempt to litigate my case through the Alabama Municipal Court system. In the end the system is stacked against the very citizens it is allegedly designed to protect. So a speeding ticket matters as much as any executive decision because it is about the power the State can, and does, daily exercise over all of us.
As I think about what my clients told me when I was a public defender, or other encounters I have had with the police, or even hear news reports about Baltimore, Ferguson, New York – I cannot help but marvel that this power dynamic has existed for so long, and continues. I cannot equate the helplessness and frustration I felt on the side of the road that day with what I have seen and heard of in the lives of others. But I can say that I felt like I glimpsed a world in which my sole function was to keep my head down and, when stopped by a police officer, to accept the ticket he/she handed me and shuffle along like the good, obedient citizen. Did the officer in my “case” cross some line? Not in an extreme way. She never pulled her gun. She did not pull me from the car and taze me. She didn’t even raise her voice when she spoke to me. But what she did try to do was to take away any sense I might have had that I could contest what she had concluded was right. If anything, she found my questions about her radar gun and a court date the boring and annoying inquiries of someone she had to educate by the nature of the very power she wielded. So I will see the officer from the second stop in court and I may lose. But in standing up maybe I will win after all. Or maybe I’ll just get slapped with court fees.
(Cue Public Enemy’s Fight the Power)
Friday, May 01, 2015
Why is Glossip hard?
The following is by Corinna Lain (Richmond).
I’ll be guest blogging in June, and am very much looking forward to sharing ideas and, hopefully, generating conversation then. But after listening to this week’s oral argument in Glossip v. Gross, the lethal injection case currently before the Supreme Court, I feel the need to share now.
And here’s what I can’t figure out: why is this case hard?
We’ve got a district court that essentially upheld Oklahoma’s use of midazolam as the first drug in its 3-drug lethal injection protocol against a claim that it would not, and could not, insulate the condemned from the pain associated with the next 2 drugs of the protocol. The pain associated with those 2 drugs is undisputed—one of them is a paralytic that slows and then stops the diaphragm so the condemned slowly suffocates to death, and the other has been dubbed “liquid fire” because it produces the feeling of being burned alive. The Supreme Court has already held that if the first drug doesn’t insulate the condemned from feeling the last two drugs, that’s a violation of the 8th Amendment cruel & unusual punishments clause. So it all comes down to whether midazolam can reliably do that.
So back to my question: why is this case hard?
Midazolam is a sedative, not an anesthetic; it is uncontested that it has no anesthetic properties. The district court said that didn’t matter, relying on a doctor who opined that 500 milligrams of midazolam was enough to kill someone, so even if it wasn’t an anesthetic, it would still render condemned inmates unconscious so they wouldn’t experience the pain. The problem with that is (1) the doctor’s opinion was extrapolated from an estimated lethal dose amount and he made a math error of 3 decimal points in doing so, so the correct estimated lethal dose is actually 4,970 milligrams rather than 4.97 milligrams or even 497 milligrams (an error that is uncontested); (2) even if the drug was lethal at the 500 milligram amount, just because a drug is big & bad enough to kill you doesn’t mean it’s going to render you unconscious and unable to feel pain first; (3) even the sources upon which the doctor relied were sketchy—drugs.com (which explicitly states that its information “is not intended for medical advice, diagnosis or treatment”) and OSHA’s material safety data sheet (which explicitly disclaims “any warranty, express or implied, regarding its correctness”); and (4) there’s a clear consensus in the scientific community that goes entirely the other way. Interestingly, the Court now has an amicus brief by a group of pharmacology professors who are not in support of either side, but want the Justices to at least get the science right. And what they say is that midazolam is incapable of rendering the condemned unconscious at a level that would resist ‘noxious stimuli’ like surgery and pain-inducing drugs.
So you might be thinking how in the world did we even get here? My take is it’s all too easy to dismiss these claims as just another condemned inmate trying to get another day. And you can see this dynamic at the oral arguments in Glossip.
So while Justice Breyer is scratching his head trying to find something, anything, that actually supports the district court finding, and Justices Kagan and Sotomayor are taking Oklahoma to task for quoting medical propositions out of context and misleading the Court, Justices Scalia and Alito have a different point to make: this is all the abolitionists’ fault.
You have to be able to point to a better drug to get the job done, they say, and the reason better drugs aren’t available is because abolitionists have put pressure on drug manufacturers not to sell them (or at least not to sell them to executioners). They’re right about the pressure (kinda sorta—this is largely about European abolitionism, as a forthcoming article shows) but they’re wrong about the condemned having to come up with a lethal injection protocol that works in order to avoid a torturous death with a lethal injection protocol that doesn’t.
So long as capital punishment is legal, there has to be a constitutional way to carry it out, so the argument goes. I think that’s contestable, but even assuming it were true, the Supreme Court has already upheld a number of other execution methods, so the availability of other lethal injection protocols is a red herring. Weird as it sounds, I think there’s a good argument for the firing squad as a more humane method of execution, though I’ll save those musings for my stint as guest blogger. The point is this: if an execution method causes lingering death and/or unnecessary pain (and everything we know about midazolam suggests it does both) then that violates not just our sense of decency, but the constitution as well. And that’s true whether there’s a better lethal injection protocol out there or not.
So why is Glossip a hard case? Best I can figure, it’s because frustration with the success of abolitionists has created a blind spot on the law.
Wednesday, April 29, 2015
A few more thoughts about Johnson and vagueness
As my previous post indicates, I’ve been closely watching this Term’s void for vagueness case, Johnson v. United States. I’m interested in the case because I am working on a larger project about the void for vagueness doctrine. As part of that larger project, I’ve been reading some older scholarship on the topic. As those of you who follow this area of the law probably know, one important law review article on the vagueness doctrine is Anthony Amsterdam’s 1960 student note in the U Penn Law Review. In that note, Amsterdam demonstrates that the Supreme Court’s vagueness doctrine is an inconsistent mess. He provides a number of examples showing that the Court is inconsistent in its decisions whether a statute is so imprecise that it violates due process.
There is an observation in the Amsterdam article that has me wondering about how the Court will rule in Johnson.In particular, Amsterdam claims that a defense attorney is far more likely to succeed in a vagueness challenge if “his client’s conduct is not particularly evil as viewed by the prevailing moral temper of the Court.” In support of this claim, Amsterdam notes that those defendants who have succeeded in their vagueness challenges have largely been either white collar regulatory offenders or offenders who have run afoul of prohibitions on speech. Indeed, the white collar offenders tended to succeed in the pre-New Deal era, when the Court was more protective of economic liberty, and the speech defendants have been successful more recently as the Court has become more protective of speech.
Amsterdam’s historical observation has me wondering the extent to which the Justices’ views of gun control and the Second Amendment may affect their vagueness analysis in Johnson. Samuel Johnson is not a particularly sympathetic criminal defendant. New accounts report that he is a white supremacist who came to the attention of the FBI during a domestic terrorism investigation. (Johnson allegedly planned to attack the Mexican consulate in Minneapolis.) But the legal issue before the Supreme Court is whether possessing a sawed-off shotgun constitutes a crime of violence. To the extent that Amsterdam’s observation continues to hold true, the Justices’ appetite for striking down a clause of ACCA as unconstitutionally vague may turn on how protective they wish to be of Second Amendment rights.
Of course, as with all claims about what is really driving the Court, Amsterdam’s claim about the vagueness doctrine will seem correct only if it continues to be consistent with future cases. And frankly, I haven’t yet looked at all of the vagueness cases that post-date his 1960 note to see whether they are consistent with the claim. But I have seen the claim echoed in more recent scholarship on vagueness (look at page 1188 of this paper, for example). So I suppose this gives us one more reason to follow the Johnson case.