Wednesday, April 24, 2013
Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys
The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.
Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.
I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.
I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.
Tuesday, April 23, 2013
Some Must Reads from the Mich LR Books Issue
I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more.
Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.
The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.
And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course. For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.
Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.
In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces.
Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?). Enjoy!
Monday, April 15, 2013
NYU Criminal Law and the Modern Court Conference
My friends at the Center for the Adminstration of Criminal Law at NYU are having a very cool gathering this coming Friday.
Information is below and after the jump.
On Friday, April 19, 2013, the Center will host its 5th annual conference. This year's conference, entitled "Criminal Law and the Modern Court," will include panels that will survey novel judicial innovations, explore the future of drug courts and drug policy, and consider where the U.S. Supreme Court is headed on important criminal law issues. The Keynote speaker will be Professor of Practice at Harvard Law, and former U.S. District Court Judge for the District of Massachusetts, Nancy Gertner. The full program is after the jump. You can register here.
The Center on the Administration of Criminal Law Presents
CRIMINAL LAW & THE MODERN COURT
Friday, April 19, 2013 – Vanderbilt Hall, Greenberg Lounge
9:00 – 9:30 CLE Registration & Coffee
9:30 – 9:45 Welcoming Remarks
9:45 – 11:15 FIRST PANEL: A SURVEY OF CRIMINAL COURT INNOVATIONS. The panel
will discuss innovative models and tools being tested in criminal courts around the country,
including: mental health courts; a new and more effective approach to probation violations
(the HOPE model); and new “algorithm” tools being applied to sentencing and bail
Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Judge Matthew J.
D’Emic, Kings Co. Supreme Court; Mark Kleiman, Professor of Public Policy, UCLA
School of Public Affairs; Prof. Allegra McLeod, Associate Professor of Law, Georgetown
Law School; Anne Milgram, Vice President of Criminal Justice at the Laura and John Arnold
Foundation; Michael A. Wolff, Dean of St. Louis University School of Law.
11:15 – 11:30 Break
11:30 – 12:45 SECOND PANEL: THE FUTURE OF DRUG COURTS AND DRUG POLICY.
The panel will look at the progression of drug courts and drug policy in New York City and
Moderator: Prof. Josh Bowers, Associate Professor of Law, University of Virginia School of
Law. Panelists: Bridget G. Brennan, New York City’s Special Narcotics Prosecutor;
Chauncey Parker, Executive Assistant District Attorney of the Manhattan District Attorney’s
Office; Gabriel Sayegh, New York Director of the Drug Policy Alliance; and Prof. Frank
Zimring, Professor of Law, Berkeley Law School.
12:45 – 2:00 Lunch Break
2:00 – 2:30 Afternoon Keynote Address by Prof. Nancy Gertner, former U.S. District Court Judge and
Professor of Practice at Harvard Law School.
2:30 – 3:45 THIRD PANEL: TODAY’S SUPREME COURT AND CRIMINAL LAW. The panel
will look at where the Supreme Court has recently been and where it is headed on criminal
Moderator: Prof. Rachel E. Barkow, Professor of Law, NYU School of Law. Panelists:
Miguel A. Estrada, Esq. of Gibson, Dunn & Crutcher; Prof. Jeffrey L. Fisher, Professor of
Law, Stanford Law School; Erin E. Murphy, Professor of Law, NYU School of Law; Prof.
Nancy Morawetz, Professor of Clinical Law, NYU School of Law; and Sonja Ralston, an
Attorney with the Department of Justice’s Appellate Section.
Monday, March 11, 2013
"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times. Here are excerpts (with a final key point stressed by me below):
A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”
This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.
While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.
Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.
Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.
Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....
The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades. They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....
After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases.
There is no shortage of lawyers to do this work. What stands in the way is an undemocratic, deep-seated lack of political will.
I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers. This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt.
Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution. Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern. But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers.
In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.
Cross-posted at Sentencing Law & Policy (where I do most of my blogging).
Tuesday, February 05, 2013
What Mainstream Criminal Procedure Overlooks (and Why)
In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, "everyone is overlooking everything." By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book "Ordinary Injustice," which might be thought of as a journalistic follow-up to Malcolm Feeley's pathbreaking work, "The Punishment is the Process."
I'm going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an "elite" focus on doctrine. First, these courts are largely invisible to "doctrine." They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on "well reasoned opinions" (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library.
Second, state trial and (especially) municipal courts are often bereft of "doctrine." There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court "workgroup" (as the sociologists put it). In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist.
Third, in order to access the operation of these low-level courts we depend upon either anecdotal data or social science data. The first is unreliable but emphasizes "practice-based knowledge" of the sort that is currently popular; the latter is much more reliable and useful, but emphasizes a discipline that is generally held in disregard by law faculties in the United States (but not, intriguingly, in Europe or the British Commonwealth countries).
Fourth and finally, (as Alexandra Natapoff compellingly argues) we tend to prioritize felonies over misdemeanors, on some scale of seriousness, despite the fact that for many individuals the impact of a misdemeanor may be as severe as some felonies. Accordingly, we have little or no knowledge about what happens to the 13 million people who cycle through the misdemeanor system and who are afforded a rough and ready sort of justice.
While I don't think this is the whole story, I think it is a start. [I do think that another part of the story is who is writing the scholarship: primarily scholars employed in clinical programs, low-level judges, and criminologists and sociologists working through the data. My sense—though anecdotal—is that there is a little bit of snobbery about the producers of this scholarship, though I’d be happy to be wrong about that. I’ll discuss this part of politics of scholarly production and recognition in a subsequent post.]
Problem-solving courts afford one window into this type of court, albeit a specialized version of the system. What they reveal is a system of justice that is marginal, political, and administrative, dominated by the judge as much as the prosecutor, and in which the Sixth Amendment notion of rights to counsel and adversarial testing are largely absent. Furthermore, the ideal of an administrative system of justice based on legal-rational decision-making largely absent: the decisions are made through a mixture of conflict and collaboration that is often actively non-bureaucratic (as Feeley first argued).
Over the next few days I’ll engage a little with some of the great scholarship out there that has yet to make its way into the traditional course. But one central point worth making is that the focus on low-level criminal courts, given the nature of the process (non-doctrinal) and the sort of issues raised is—if it is to be descriptively accurate and normatively productive—must be both inter-disciplinary and practice-oriented. The sort of interdisciplinarity I have in mind looks at how practice happens on the ground, and how political institutions, like courts, operate. One nice example of the latter is Lisa Miller’s book, The Perils of Federalism, which looks at crime, politics, and criminal justice at the community level in Philadelphia.
It ought to be the sort of thing that the various theories of punishment—sociological, criminological and philosophical—attend to. Often, however, these are top-down theories, primarily concerned with the policies (actuarialism, control, risk) and officials (legislators, perhaps prosecutors, appellate judges) that are perceived as having wide political influence over the criminal justice system: but certainly not low-level judges. What I am proposing, then, is a bottom-up look at the criminal justice system for the sorts of institutional resistances to legislation that (as criminologist Pat O’Malley argues) are often invisible from the top down perspective of governance. Problem-solving courts offer a neat example of this sort of institution.
Monday, February 04, 2013
Reforming the Pardon Attorney Office: Some Preliminary Thoughts
I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.
And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.
Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.
In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.
Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.
Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment.
Saturday, February 02, 2013
Hello and Happy Groundhog Day
Thanks to Dan and the gang for inviting me to guest post on Prawfs once more. For those who don’t know my work, my main interests are in criminal law, criminal procedure, constitutional law, sentencing, and the death penalty. My most recent, and ongoing, research has focused on looking at the extent to which federalism constraints are built into the Bill of Rights, tying limitations on federal power to the norms of the States. You can expect some of my posts to be on this research and other ideas I’ve had for scholarship, as well as pending Supreme Court cases, thoughts on teaching, and, well . . . my philosophy is that a blog post should be somewhere between a law review article and the "You Know What Really Grinds My Gears?" segment from Family Guy.
As has been my practice in the past, I will not respond to anonymous or pseudonymous comments. As one prominent legal scholar recently wrote: “If you have an argument, make it, and use your name.”
For my initial post I was going to honor Groundhog Day – the movie, not the day – by simply cutting and pasting one of my posts from last year. However, I was concerned that no one would notice. But I will perhaps give you an eerie sense of déjà vu by discussing my view of the Cruel and Unusual Punishments Clause in my opening post. My main area of interest had been the federal death penalty in non-death States. I had made the argument that the Cruel and Unusual Punishments Clause could be understood as forbidding the federal government from inflicting a type of punishment not authorized by the laws of the State where the criminal conduct occurred.
In my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012), published last November, I update my research and expand on that argument. I think one can articulate my claims in three ways. First, I argue that, because the Supreme Court’s jurisprudence on the Cruel and Unusual Punishments Clause as applied to carceral sentences stems from state, not federal, cases it is exceedingly deferential (except for the recent juvenile LWOP cases) largely due to considerations of federalism. Therefore, a more robust and searching analysis is appropriate in looking at whether federal sentences of imprisonment constitute “cruel and unusual punishment.” Second, I argue that such a more searching analysis should look to the laws of the several States to determine whether a federal punishment is “cruel and unusual.” That is to say, if a federal defendant is punished more harshly for an offense than he could be in any State, the punishment is “cruel and unusual.” And I give a few recent examples where this has happened. Finally, I suggest that the proper comparator may be, not the States generally, but the State where the criminal conduct occurred. This would mean that a federal sentence is “cruel and unusual” if it exceeds what the defendant could have received in state court for the same crime in the State where it occurred.
As in my prior work, I rely heavily on the claim that we ought to give primacy to the general views of the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as a way of preserving both individual rights and state sovereignty. I suggest that an emphasis on the views of the Anti-Federalists should give us a more state-centered, and perhaps state-specific, interpretation of the Bill of Rights than is currently the case.
I’ll leave it at that for now, and go into some of the nitty-gritty and possible implications and further applications of these ideas in later posts.
Wednesday, January 16, 2013
Fixing Pretrial Risk Assessment (in Florida)
For those of you interested in pretrial release, I thought I'd point you to a neat roundtable hosted in part by my colleague Sam Wiseman. Last week, FSU hosted the American Bar Association Roundtable on “Pretrial Risk Assessment and Community Supervision: Tools to Advance Public Safety.” The Roundtable featured panelists discussing a variety of pretrial tools to advance Florida public safety and reduce citizens’ tax burden. The event was co-sponsored by the Florida Sheriffs Association, the Florida Association of Counties, the Florida State University College of Law and the Florida State University Project on Accountable Justice. Video of the event is available here. The focus of the roundtable was on the collection and use of data in the pretrial process, both in individual release decisions and at the system level. Legislators, judges, sheriffs, prosecutors, public defenders, pretrial agency supervisors, commercial bondsmen, GPS monitoring vendors, and court administrators from around the state attended or appeared on panels.
Tuesday, December 04, 2012
Disability Rights and the Insanity Defense
Thanks to Dan for inviting me back. Happy to be here.
Last week, the Supreme Court denied cert. in Delling v. Idaho, a case that presented the question whether a state could constitutionally abolish the insanity defense. Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented from the denial of cert.
The constitutional issues presented by Delling are very interesting, but they're not what I want to talk about. At least for the moment, I'm more interested in the following question: What does a disability rights perspective imply for whether we should have (or must have) an insanity defense? I will admit I've been somewhat frustrated through the years that nobody has written an article that comprehensively addresses this question -- though some folks, notably Michael Perlin, have addressed important aspects of it. Though I keep thinking I might write that article, the project keeps moving back in the queue. So let me just use the occasion of Delling to throw out a couple of ideas about the question.
It seems to me that there are three ways that the existence of the insanity defense might serve disability rights interests. I have to say, though, that I find none of them fully persuasive as a reason for retaining the defense.First, it is undeniable that efforts to abolish and limit the insanity defense have often been driven by -- and have fed -- stigma against and stereotypes about people with mental illness. Perlin's done a great job of showing this. Retaining the insanity defense might thus be seen as fighting the good fight against these pernicious attitudes. But it seems just as plausible to me that the insanity defense actually entrenches stigma and the stereotypes associated with people with mental illness. The defense arises only when an individual with mental illness has taken an act that would otherwise constitute a crime, and it requires defense counsel to prove that the defendant's mental illness caused the act to occur. It seems to me almost inevitable that the successful presentation of an insanity defense will have at least some tendency to entrench the widely-held public view that mental illness leads to criminality and violence.
Second, one might treat the insanity defense as essentially a reasonable accommodation for people with mental illness in the criminal justice system. The argument would be that the criminal justice system discriminates against or fails to take account of people with mental illness, so the insanity defense is necessary to "rectify the tilt" (in the words of my friend Chai Feldblum). The analogy here would be to reasonable accommodation in employment. Employers purchase desks with some picture of the "ordinary" employee in mind; they don't think of the employee who uses a power wheelchair and a ventilator, who needs a nonstandard desk configuration. Requiring the employer to purchase a desk that fits that employee may cost money, but it merely rectifies an inequality of the employer's own creation.
Does that story fit the insanity defense? Is the criminal justice system biased against people with mental illness? Does it fail to take them into account? To some extent, the answers to these questions are surely yes. Many (though far from all) people with mental illness end up in the criminal justice system as a result of low-level crimes that might not trigger criminal justice involvement at all -- and almost certainly would not lead to conviction and sentence -- if they did not have mental illness. This is the widely decried phenomenon of criminalization of mental illness, which is in part a response to disinvestment in mental health services outside of the criminal justice system. Moreover, people with mental illness may, because of their condition, be less able in some circumstances to protect themselves against exploitation and trickery by police and prosecutors. And finally, particularly but not only in capital cases, judges and juries may impose harsher sentences on people with mental illness based on exaggerated fears that those conditions create an increased risk of future criminality.
I think these are good reasons to bar the imposition of the death penalty on people who were experiencing mental illness at the time they committed their crimes. (The Supreme Court relied in part on similar reasons in barring the imposition of the death penalty on people with intellectual disabilities.) And they're also probably good reasons to take low-level offenses (certainly for people with mental illness, perhaps for others) out of the criminal justice system. But in the broad middle range of cases -- involving reasonably serious, but not capital, crimes -- I'm not convinced that convictions of defendants with mental illness always or even mostly reflect bias.
Finally, one might treat the insanity defense as a different kind of reasonable accommodation. Instead of responding to bias in the system of investigating and adjudicating crimes, the defense may serve to ensure that people with mental illness get served in the mental health system (which, by hypothesis, can provide effective treatment) instead of the criminal justice system (which often cannot). The problem with this argument is that, thanks to Jones v. United States, an insanity acquittee can be immediately and automatically locked up in a secure psychiatric facility -- for longer, even much longer, than any sentence she could have served had she been convicted. In many (though far from all) cases, individuals so committed could receive effective treatment in community-based mental health settings, but their status as insanity acquittees makes it practically very difficult to get them out of state psychiatric institutions and into community programs. From the disability rights perspective that opposes unnecessary institutionalization, a conviction and a reasonably short sentence might well be preferable to an insanity acquittal. A longer sentence, or confinement in a jail or prison that exarcerbates the mental illness, would change the calculus, but my point is that the insanity defense fails to serve disability rights interests in a significant fraction of cases.
I think the real problem is that the insanity defense comes far too late in the process to address the criminalization of mental illness. Criminalization occurs because of a lack of adequate investment in community-based mental health services -- both those services that provide day-to-day support and treatment that can prevent antisocial behavior and mental health crises, and those services that respond to crises without triggering criminal justice involvement or institutionalization. I think those are the big, key issues of mental health and the criminal justice system. The insanity defense is, to a large extent, just a sideshow -- though one that draws disproportionate attention from scholars and others.
Anyway, these are just a few thoughts. I'm very interested in others' reactions, in comments or offline.
Thursday, November 15, 2012
2013 CrimProf Shadow Conference at LSA in Boston
This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.
Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here: http://www.lawandsociety.org/boston2013.html
For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.
The paper panels will cover a range of subjects. Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.
We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area.
In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.
We would also like to identify people who are interested in serving as moderators or discussants for our various panels. So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.
In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.
If you would like to participate in the Shadow Conference in Boston:
By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.” That email should include:
(a) an expression of interest
(b) an indication of whether you would like to participate in a book or paper panel
(c) a description of your topic (an abstract would be preferable)
(d) whether you are also available to serve as a moderator or discussant
(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel
(f) if necessary, a heads up if you are contemplating participation on another LSA panel
Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.
Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference. (The LSA folks get kind of annoyed with us if our participants drop out. And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)
Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv.
Thank you, and we look forward to seeing many of you in Boston.
Carissa (& Danny)
Sunday, September 09, 2012
Should Inmates' First Amendment Speech Allow for Media Interviews?
An interesting bill lies on Governor Brown's desk, awaiting his signature: AB 1270 would allow, and set procedures for, media interviews with prisoners. The bill, sponsored by Assemblymember Tom Ammiano, would dramatically change the parameters of free speech in prison.
Under the new bill, CDCR would be required to allow interviews with inmates on a pre-arranged and on a random basis, unless the warden determines that the interview "poses an immediate threat to public safety or the security of the institution." The interview request should be presented within a reasonable time, and the interview itself requires the inmate's consent, as well as a notification to the victim or his/her family ahead of time. The inmate is not to receive any form of remuneration for participating in the interview, and CDCR is not to change an inmate's status or punish him or her for giving an interview.
Currently, media interviews in CDCR prisons with specific inmates are not allowed (visiting prison and speaking to inmates at random is allowed under certain conditions.). The Supreme Court's decision in Pell v. Procunier (1974) upheld this regime, arguing that the existing provisions for media contact meant that there was no First Amendment violation.
Let's think about a few potential applications of this. One of the concern folks might have is about sensational interviews providing wanton publicity for perpetrators of heinous crimes. Notifying the victim's family is not, of course, procuring the victim's family's consent. And yes, it would mean more air time for tasteless, heinous and sensationalist media coverage. But how would that be different from the tasteless, heinous, sensational television we already watch?
Think about how much good it could do an innocent inmate if reporters would pick up the cause and pursue it, and how helpful it would be if, in addition to other footage, they could speak to the inmate him/herself. It's enough to be reminded of the stunning impact that Paradise Lost, Paradise Lost 2: Revelations, and Paradise Lost 3: Purgatory have had on the West Memphis Three case (here's a great interview with the filmmakers).
And think of how much more attention the Pelican Bay hunger strike would have received if the public got its news not just from CDCR officials, and some crumbs from what families got through letters. But under the new proposition, it's likely that CDCR would still have the prerogative to decline the interviews based on institutional safety reasons.
If you support the bill, you can let the Governor know your position.
Cross-posted at California Correctional Crisis.
Tuesday, August 21, 2012
A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium
N.B. This post is basically for crimprofs and those interested in crim theory.
Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means the first criminal law class is here or around the corner for some 1L's. (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)
As many crim law profs lament, first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since. Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.
For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism. Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication. Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.
Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:
September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)
October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)
November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)
January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)
February 25: Miriam Baer (BLS) and Michael Cahill (BLS)
March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)
April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)
As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.
"In retrospect, I guess we might have resorted to cannibalism a bit early"
Once again, I used "The Case of the Speluncean Explorers" in the first week of Criminal Law, as a way of "putting on the table" some of the big and interesting questions the course presents (in addition to "who brings dice on a caving trip?") -- questions about statutory interpretation, state-of-mind, clemency, justification-and-excuse, and the sanctity of human life.
And, doing this reminded me of one of my all-time favorite pieces from The Onion:
. . . When the six of us got into the elevator on that fateful day, we had no idea what was going to happen. We thought we were just going to take a little ride from the 12th floor to the lobby, just like every other day. Do you think we knew that elevator was going to get stuck between floors? Do you think we got into the elevator saying, "Hey, you know, we should eat our good old pal Jerry Weinhoff from Accounts Payable"? Of course not. . . .
Thursday, August 16, 2012
Sanchez on Broadband Deregulation and NSA Wiretapping
Thanks to round-the-clock efforts over the last two weeks to get a piece out the door this submission season, I have leaped into the running for the least-blogging-Prawfsblawg-guest-blogger ever. Fortunately, the piece is out the door to journals as of today (into, um, the teeth of an unraveling market.)
So, to blogging… My one-time housemate Julian Sanchez has an interesting post over at Cato’s blog speculating on the back history of the NSA surveillance program. He writes:
One of the great mysteries of recent national security surveillance policy is exactly why the controversial FISA Amendments Act of 2008 was necessary . . . . [I]n early 2007 . . . then–House Minority Leader John Boehner (R-Ohio) publicly declared that a secret ruling by the (normally highly deferential) Foreign Intelligence Surveillance Court had found a problem with a National Security Agency surveillance program . . . . Most of us at the time assumed that the issue had to do with the greatly increased breadth of the surveillance NSA was trying to conduct—but flipping through the latest edition of David Kris and Douglas Wilson’s invaluable National Security Investigations and Prosecutions, I’ve just realized there’s another possibility that fits the public facts extremely well.
The possibility, he explains in a detailed post, is broadband deregulation. Interesting stuff!
Friday, August 03, 2012
Gotta' Love Crim Pro Federalism
I just finished teaching a summer session of criminal procedure. Sometimes, by the end of the course, I feel like I have spent more time teaching what the Fourth Amendment doesn't do than what it does do. I teach in Washington State, however, where Article I section 7 of the state constitution provides so many more privacy protections that I can't track all of them for my students as we study the Fourth Amendment—consent rules on refusal warnings and apparent authority, Leon's good faith exception, inventory searches, the automobile exception, open fields, pretext stops, pen registers, garbage searches, student drug testing, sobriety checkpoints, and I'm sure more that I'm overlooking. Here's a new Washington State Supreme Court decision, issued today, dealing with warrantless searches of students at school. Bravo to state constitutions!
Which state-specific criminal procedure rules do readers think are the most important or significant departures from U.S. Supreme Court doctrine? Personally, I always have been partial to New York State's "indelible right to counsel," particularly since the U.S. Supreme Court decided Montejo v. Louisiana.
Thursday, August 02, 2012
The Ninth Circuit issued an interesting Fourth Amendment decision last week on the subject of reasonable suspicion, in United States v. Valdes-Vega. The "reasonable suspicion" standard dates to Terry v. Ohio, where the Supreme Court upheld limited, investigative seizures on less than traditional probable cause. Instead, following Terry, reasonable suspicion justifies the police in stopping and detaining someone for investigation sufficient to confirm or dispel their suspicion of criminality. A reasonable suspicion, the Supreme Court has held, requires "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."
In Arvizu v. United States, however, the Supreme Court, reviewing another Ninth Circuit decision, made clear that lower courts must consider the "totality of the circumstances" when evaluating reasonable suspicion. Court should not "divide-and-conquer" each fact, however common or innocent each fact may prove in isolation, if reasonable suspicion is supported by the evidence in the aggregate. This understanding of reasonable suspicion has given the police a lot of discretion to stop and investigate individuals without proof of criminality, so long as prosecutors can compile a list of non-criminal factors that, considered as a whole, made the police reasonably suspect criminality. Critics have challenged this standard as giving the police too much discretion with too little judicial review.
In Valdes-Vega, the Ninth Circuit may have pushed back, perhaps fairly hard, against this reasonable suspicion standard. This case involved a vehicle stop and drug seizure in California, about 70 miles from the U.S.-Mexico border. Interestingly, the police observed Valdes-Vega speeding and driving erratically, but they could not stop him to cite or arrest him for traffic violations, because the police here were federal border agents. So, the agents needed to articulate a reasonable suspicion of criminality to stop the vehicle. In arguing that the agents reasonably suspected drug or alien smuggling, the Government highlighted Valdes-Vega's erratic driving, the proximity to the border, Valdes-Vega's decrease and increase in speed near a closed border checkpoint, Valdes-Vega's use of a large truck with Baja California plates, the history of smuggling in the area, and the agents' training and experience. The district court found reasonable suspicion for the stop. But the Ninth Circuit disagreed, concluding that reasonable suspicion on these innocuous facts would permit seizures based on "'broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.'" The Ninth Circuit Blog recently commented on this opinion: "The Ninth, we hope, is becoming increasingly uncomfortable with the 'border exception' swallowing all Fourth rights in the West."
Truthfully, the dissent in Vades-Vega did make a good point on the law that the majority seemed to violate precisely Arvizu's no-divide-and-conquer approach to reasonable suspicion analysis. And maybe this case simply reflects "liberal" Ninth Circuit judges vying for yet another Supreme Court reversal. But on the other coast too, in cities like New York and Philadelphia, critics of the reasonable suspicion standard are challenging police "stop and frisk" programs as too discretionary, abusive, and inefficient. Courts in those jurisdictions also may be attempting to toughen the reasonable suspicion standard. Are these judicial decisions, backed by vocal criticism of police action in certain communities, just blips on the Fourth Amendment radar, or a sign of coming changes to the reasonable suspicion standard, such as an increased emphasis on arrest efficiency?
Tuesday, July 31, 2012
Encroachment on Presumption of Innocence? DNA evidence from arrestees
Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.
I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another. CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.
Tuesday, July 24, 2012
The death penalty for Holmes, and "consultation" with victims
It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings. It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."
I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted. And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years. That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.
For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss. (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)
Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do! Thoughts?
Thursday, July 19, 2012
In Praise of Praising Legal Aid Lawyers
A brief essay on Forbes.com has made the rounds this week, In Praise of Legal Aid lawyers. The piece focuses on criminal defense legal aid lawyers, and why society should appreciate their work. The essay doesn't add anything too unfamiliar to this discussion. But it effectively and efficiently makes the case to both lawyers and non-lawyers for valuing public defenders--as evidence by all my current and former public defender friends on Facebook who posted and re-posted this link.
Some jurisdictions, such as Florida, still sadly seem not to get the need for a fully viable indigent defense system. I suppose funding will always be a challenge. But a lot of good indigent defense policies nevertheless have gained traction to help the criminal justice system better realize the unfulfilled promise of Gideon. For instance, the Washington State Supreme Court recently adopted indigent defense standards, including guidelines on caseload limits and attorney qualifications and a certification requirement. Seattle University law prof Robert Boruchowitz, with whom I served on the WSBA Council on Public Defense, details the Court's order here. Other jurisdictions, such as New York, have pursued similar ideas with some success.
As this patchwork of reform hopefully becomes more widespread, the question will become more pressing of what the promise of Gideon functionally should look like in individual and institutional practice. In the food for thought column, I wanted recommend a recent article, Padilla v. Kentucky: Sound and Fury, or Transformative Impact, by CUNY law prof, and former Legal Aid colleague and fantasy baseball competitor, Steve Zeidman. This article considers what Padilla should mean for the constitutional standards of criminal defense work. The bottom line I took from Steve's article: Padilla should mean getting to know your client and his or her case much better, pleading fewer cases out, especially early in the process, and trying more stinkin' cases. The trend, of course, seems quite the opposite: more guilty pleas, fewer trials.
While reading and enjoying the Forbes.com essay praising Legal Aid lawyers, I thought of the Legal Aid lawyers and offices modeled in Steve's article.
Tuesday, July 17, 2012
Is the Availability of the Insanity Defense Constitutionally Required?
Yes, or at least that's what an amicus brief I signed argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)
The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.
First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...
So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.
Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.
Sunday, July 15, 2012
Follow up on Pretrial Release Conditions
I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.
Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me. I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.
I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.
To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm. The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)
Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions. As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety.
By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.
Saturday, July 14, 2012
Not yet tried, and sentenced to Red Lobster
Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)
Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)
IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.
Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.
To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.
But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.
The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.
This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.
It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.
Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.
Thursday, July 05, 2012
Inappropriate Judicial Sanction Order Following Lawyer's Selective Prosecution Argument?
I read a fairly remarkable sanction order this week from the Southern District of Texas. In U.S. v. Ray Marchan, the court publicly admonished defense counsel for arguing selective prosecution to the jury on the basis of race, because the court found the argument baseless. Moreover, the court warned other attorneys of serious sanctions they may face if they improperly argue racial discrimination. News reports on this order can be found here, here, and here. I also reviewed court filings through PACER. I am troubled by the overall tone and message of this order.
Some detailed background may be helpful. Ray Marchan was prosecuted in federal court for bribery offenses involving a Texas state judge. During summation at trial, defense counsel suggested selective prosecution because his client is Mexican-American and a similarly-situated person who is white was not prosecuted:
“On the record, this [non-prosecuted] man is a better lawyer than most of us. He went to the FBI without a lawyer, by himself, admits he gave money to [Judge] Limas, and they still don’t charge him with a crime? [The FBI agent] is God now? He can tell when it’s a bribe and when it’s a loan? Or is it the color of his skin? My client is Mexican. [The non-prosecuted] person is white. What is it?”
According to the prosecutor’s subsequent brief, defense counsel during this argument “motioned to the color of his own skin and then pointed directly at [the FBI agent].”
The court prevented counsel from continuing with this argument, and directed counsel to identify his evidence that the grand jury was racially motivated. Counsel started to explain that his claim did not involve the grand jury, but the court repeated its direction. Counsel said he had no evidence of racial bias in the grand jury. The court next asked counsel for his evidence that the prosecution team, by name, was racially motivated. When counsel started to respond, “The only thing is the … ,” the court interrupted, “Tell me, do you have any evidence?” Counsel replied, “I do not, sir.” The court directed counsel to file a show-cause brief “telling me why you shouldn’t be sanctioned for that argument.”
Defense counsel’s brief did not retreat from the selective prosecution claim. Rather, counsel acknowledged that he should have raised this issue with the court and not the jury, and he apologized for this error. Counsel added that his argument, “although done in error, was done in the spirit of zealously representing his client and not with the intent of offending the Government or the Court.” The prosecutor’s brief responded, “Defense counsel’s brief dilutes the serious nature and far-reaching consequences of his comments. [Defense counsel], in no uncertain terms, accused the government—including members of the prosecution and the investigating agency—of being racists, and did so publicly in Federal Court … Defense counsel, with his accusations of racism, crossed the line from zealous advocate to inflammatory rabble rouser.” According to the court’s order, the prosecutor also argued, “lead counsel for the government and the judge presiding at this trial are Caucasian as well, and I think that was a stab at both.”
The court’s order found that defense counsel “baselessly” argued selective prosecution. The court reached this conclusion in part by counting the number of persons with Hispanic-sounding surnames on the grand jury, the petit jury, the investigation team, and the prosecution team, and inferring an absence of racial motivation from this fact. The court further identified three major concerns resulting from this assertion of the “race card”: (1) A baseless claim of racial bias “demeans the claims of those who have actually been the victims of real discrimination”; (2) A baseless claim of racial bias can divide a community and damage personal and professional reputation. “Unfortunately,” the court observed, “there are those who thrive by sowing racial disharmony”; and (3) to prevent loss of public confidence in the justice system, a lawyer has a “duty to preserve and protect the integrity of the judicial process that distributes justice.”
The court thus directed defense counsel to apologize to the prosecution in writing. Moreover, the court warned, “[i]n the event of a future transgression by any attorney, this Court will consider all of the many remedies and/or sanctions that the rules contemplate. Counsel should not assume that this Court will in the future allow each lawyer ‘one free bite.’” (emphasis in original)
I of course agree that attorneys, including criminal defense lawyers, should pursue responsible, evidence-based arguments. I also agree that a bad faith allegation of racial prejudice unfairly can harm individuals and the legitimacy of the justice system.
But the court’s extensive public sanction of defense counsel, and warning to other lawyers, also may reflect a troubling “colorblind” trend of people aggressively personalizing and shaming frank talk of race, absent clear proof of discriminatory motives. This concern really came to mind when I read a particular passage in the court’s order that preceded the court’s warning about future sanctions. Noting that “the Court is not easily offended,” the court continued:
“The undersigned, if asked to describe himself, would use words like: husband, father, Texan (not native, but got here as soon as he could), American (and proud to be) and Christian—not necessarily in that order. It would never occur to the undersigned to describe himself or any other individual by using racial terms.”
One could infer a lot of implicit privilege and assumptions from this passage. But here’s how I thought this passage fairly could read as a direction to lawyers: As legal professionals, we publicly and proudly may discuss marital and parental status, nationality, regional affinity, and religious identity. But tough talk of race, well, you had better not go there absent evidence proving good cause to raise that subject. Otherwise, you are the racial offender, and you will be sanctioned.
My question for readers: We often have to err somewhere when we draw lines—too much or too little in favor of something. Does this order err too much on the side of avoiding “baseless” allegations of racial prejudice, particularly in a criminal justice system so heavily afflicted by racial disparities?
Tuesday, July 03, 2012
How Not to Criminalize Cyberbullying
My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn. In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization. To see the abstract or paper, please click here or here.
Posted by Lyrissa Lidsky on July 3, 2012 at 03:44 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack
Thursday, June 28, 2012
Stolen Valor Act: Dumb but not sufficiently illiberal?
Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.
I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government).
To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA). Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.
Wednesday, June 20, 2012
Fixing the Constitution In Some Small Ways
Thanks to Howard for the tip-off below about the piece in Slate I did with Ethan on fixing the double jeopardy clause. I also did a similar piece today for the same forum with Eric Miller (SLU) about the bail clause. I continue to be lucky to have such fine co-authors.
Re: double jeopardy, I should add one point that we didn't much discuss in our short suggestion piece. Some might worry that allowing one juror to block a conviction would create too much incentive for corruption or too much likelihood for ideological peculiarity to drive the result. On the first point, we noted that if there is real evidence of corruption, then that would be sufficient to permit re-prosecution. On the second point, this would be my response. In a world where double jeopardy protection meant something, I'd be worried about outliers too, and I'm guessing Ethan and I would have been open to allowing re-prosecution if there was a strong super-majority to convict. However, my sense is that, in light of the dual sovereign doctrine, as well as the very permissive Blockburger test, which most states have in determining whether a defendant can be tried based on crimes occuring in the same event or transaction, most states will be able to find a way to get a second bite at the apple if they really need it. The sad truth is, current federal constitutional double jeopardy protection is, as we said, anemic and will only be somewhat improved by the adoption of the rule we propose.
Thursday, June 14, 2012
Prison Rape and Cost Benefit Analysis
Over at the GULC faculty blog, Lisa Heinzerling has a very sharp post criticizing the Administration for undertaking a 168 page report that performs a cost benefit analysis of prison rape reform efforts. Prof. Heinzerling labels the effort "a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse."
I haven't had a chance to digest the report yet. Early feedback from some of my FB friends show substantial support for Prof. Heinzerling's point of view. I wonder what the defenders of the report might have to say in its favor, though I suspect some will say that the report is meant to offer its own defense!
Tuesday, June 12, 2012
NFL Bounty Scandal - Pre-Saints?
I feel I’m coming a little late to the party, given that this is my first guest post and we’ve almost hit the middle of June. I’ll blame it on Law and Society in Hawaii, although Dave didn’t seem to have problems posting while he was there…
I am hoping this month to post some things on drugs, guns, and general border crime stuff – all the fun stuff in my wheelhouse. I also have enjoyed looking at some things on Fast and Furious and the Ted Stevens prosecution too, so I might say some stuff there too. We’ll see how far we get.
But first, I’ve been doing some research on prominent prosecutions gone wrong (hence the interest in both Fast and Furious and the Ted Stevens prosecution, and we can likely chalk the John Edwards prosecution up there now as well). One of the “case studies” I’m looking at is from the Archer Daniels Midland price-fixing investigation in the mid-90s (and thankfully, Kurt Eichenwald put everything together in a nice book for me to read: The Informant (published in 2000 and made into a movie staring Matt Damon in 2009, although I can’t find the movie anywhere here in Laramie so I haven’t seen it yet)). While reading through the book, I noticed something that seems to have a played a prominent role in sports news this past few months, so I wanted to comment slightly on that.
By way of background:the ADM investigation involved a number of FBI agents, AUSAs, folks from Main Justice and other officials investigating ADM allegedly engaging in price fixing with other foreign corporations. The FBI became involved when Mark Whitacre (“the Informant”) started cooperating and recorded numerous conversations with officials from other companies and persons working at his own company. Whitacre seems to have acted at times as a rogue agent (and also seems to have engaged in embezzlement from ADM while working as a CI (confidential informant)) and ultimately got a pretty high chunk of time in prison. While my research deals with the problems inherent in having a prosecutor run such an investigation, that isn’t the point of this post.
To make a long post short (too late), I noticed some information about the NFL bounty scandal in the book. On p. 465 of the book, Eichenwald describes a FBI interview of Ron Ferrari, one of Whitacre’s salesmen and someone the FBI thought might be involved in the price-fixing. Ferrari played linebacker for the 49ers during the Joe Montana years, and the FBI questioned him about $25,000 in a safe-deposit box (thinking it might have come from price-fixing). Ferrari tells the FBI this is money from “unofficial bonuses” he received while playing football for the 49ers. He goes on to indicate that sometimes, when there were unpopular players on the other team, the coaches would pay “little bonus payments” for a “particularly vicious hit on one of those unpopular guys.” This seems exactly what the NFL bounty scandal is all about, but this is an allegation of it happening in the mid-80s, a long time before the Saints “bountygate” came out.
So, after my exhaustive internet research on this issue (about 2 minutes on Google), as far as I can tell, this information never made it to the NFL. In 2000, Eichenwald provides evidence about these bounties occurring in the NFL, and yet, no mention is made of that within the Saints “bounty-gate” discussion. Of course, I’m not surprised that none of this information really made much of a dent back in 2000 because a) it isn’t likely that anyone associated with the NFL read Eichenwald’s book, and b) the bounty-gate stuff seems more of a big deal now given all of the concussion-related news and suits that have arisen in the past year or so.
Of course, now that I’ve written this post, I’m sure I’ll be getting called by Roger Goodell…
Thanks for letting me post, and I look forward to trying to post some interesting things here while I’m here.
Saturday, June 09, 2012
Cyberbullying News: Parts of Missouri's Cyberharassment Law Unconstitutional
In 2006, Missouri teen Megan Meier committed suicide after being "cyberbullied" on MySpace by Lori Drew, a former friend's 49-year-old mom. Megan's suicide in response to Drew's cruel online hoax galvanized national attention around the problem of cyberbullying and prompted widespread calls for legal reforms. Missouri, naturally, was one of the first states to respond. There, state legislators modernized and updated their existing cyberharassment and cyberstalking laws in an attempt to cover conduct such as that that led to Megan's suicide. A week and a half ago, the Missouri Supreme Court dealt a setback to Missouri's efforts to combat cyberbullying by striking down a portion of the amended harassment law , and its decision may contain lessons for those pushing new legislation to criminalize bullying.
Notably, Missouri v. Vaughn, the Missouri Supreme Court's decision striking down portions of the law under the First Amendment, did not involve cyberharassment. Instead, it involved a defendant who repeatedly telephoned his ex-wife, leading prosecutors to charge him under subdivision (5) of Mo. Rev. State 565.090.1 for ""knowingly mak[ing] repeated unwanted communication to another person," and under subdivision (6) for "[w]ithout good cause engag[ing] in an[ ] act with the purpose to frighten, intimidate, or cause emotional distress to another person, [which does in fact] cause such person to be frightened, intimidated, or emtionally distressed, and such person's response to the act is one of a person of average sensibility considering the age of such person."
The court held that section 565.090.1(5) was constitutionally overbroad, despite the State's proffer of a narrowing construction that would have made the statute applicable only when the defendant's communications were repeated, unwanted, and targeted at a "particularized person," whatever that means. The court held that "[e]ven with the State's suggested constructions, subdivision (5) still criminalizes any person who knowingly communicates more than once with another individual who does not want to receive the communications." The court gave examples illustrating subdivision (5)'s overbreadth, noting that it would apply to peaceful picketers or teachers calling on students once asked to stop. The court also found that the statute stretched well beyond what might be justified by the protection of residential privacy or "captive audience" members. The court therefore "severed" and struck subdivision (5) from the statute.
The court, by contrast, upheld subdividision (6) by reading it narrowly to address only fighting words and finding that prohibition of speech made "without good cause" was not vague. Section 565.090.1(6) makes it a crime to "[w]ithout good cause engage[ ] in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of the person." The court found that the legislature's exclusion of "the sorts of acts for which there could be good cause" meant that it only applied to expressive conduct that was intended to and actually did provoke "immediate substantial fright, intimidation, or emotional distress." (emphasis in original) Though the reasoning is opaque [I'm being generous], the court seemed to believe that the "legislature's intent" underlying the good cause requirement transformed the statutory provision into one that only addressed "unprotected fighting words." Specifically, the court stated: "because the exercise of constitutionally protected acts clearly constitutes 'good cause,' the restriction of the statute to unprotected fighting words comports with the legislature's intent."
Separately, the court found that subdivision (6) was not vague. According to the court, there is a "common understanding" regarding what would "frighten, intimidate, or cause emotional distress" to a reasonable person. More dubiously, the court asserted that the "good cause" language of the statute would give a citizen adequate notice of what expression was unprotected by the statute as well as adequately constrain law enforcement discretion. Relying on prior case law, the court stated: "'Good cause' in subdivision (6) means 'a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred." Although earlier in the opinion, the court seemed to equate "good cause" with "protected by the First Amendment," here the court seemed to be using a standard legal definition of good cause, meaning done with justifiable motive. Regardless, court's determination that the "good cause" language is not vague is certainly contestable.
Although the court upheld subdivision (6), the victory is probably a pyrrhic one for advocates of broad laws to address bullying behaviors. The court apparently saved the constitutionality of subdivision (6) by adopting a ridiculously strained interpretation of it; under this interpretation, it only covers fighting words--those "which by their very utterance inflict injury or tend to incite an immediate breach of peace"--as defined by the Supreme Court in its 1942 decision in Chaplinsky v. New Hampshire. It is worth noting that the Supreme Court has not upheld a conviction for the utterance of fighting words in the seventy years since it decided Chaplinsky. Moreover, as Rodney Smolla has noted, there is a "strong body of law expressly limiting the fighting words doctrine to face-to-face confrontations likely to provoke immediate violence." In other words, the Missouri Supreme Court's interpretation of subdivision (6) makes it difficult to use as a tool for addressing cyberharassment, since it is unlikely to trigger immediate violence in the manner envisioned by Chaplinsky.
There are no doubt more conclusions to be drawn from Missouri v. Vaughn, and I hope to draw them in an article that my co-author Andrea Pinzon Garcia and I are rushing to complete. That article is currently called Coming to Terms with Cyberbullying as Crime, though the title is subject to change. Look for a link to it here or on SSRN before the end of the month.
Wednesday, May 30, 2012
The Shadow Crim Conference at Law and Society, Hawaii 2012
Next week is Law and Society in Hawaii. Aloha! Though I won't in the end be going, sadly, I wanted to share with readers information about the crimprof shadow conference that Carissa Hessick and I organized. There will be a happy hour for crimprofs at 5pm next Wednesday (June 6) in the Paradise Lounge at the Martini Bar. This will be a happy hour primarily for folks attending the crimprof shadow conference, but all are welcome. (A more general happy hour is in the works. Keep an eye on the blog.)
You can find below the information from the LSA program re: our little gathering on crim law and crim procedure.
LSA Criminal Justice Shadow Conference Schedule
Criminal Justice 01: The Evolution and Transformation of Criminal Justice Institutions
Time: Tue, Jun 5 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: Meghan J. Ryan (Southern Methodist University)
140 Character Assassination
*Leslie Y Garfield (Pace University)
Regulatory Equilibrium and Destabilization in Criminal Procedure
*Anthony O'Rourke (SUNY, Buffalo)
Science and the New Rehabilitation
*Meghan J. Ryan (Southern Methodist University)
The Institutionalizing Effect of Criminalization: A Case Study of American Prostitution
*Aaron Simowitz (New York University)
Discussant: Audrey Rogers (Pace University)
Criminal Justice 02: Policing, Protest, and Punishment
Time: Tue, Jun 5 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Wayne Logan (Florida State University)
Prisoners' Constitutional Right of Protest
*Andrea C. Armstrong (Loyola University, New Orleans)
*Wayne Logan (Florida State University)
Guilt and the Fourth Amendment
*Laurent Sacharoff (University of Arkansas)
Judicial Response or Litigant Strategy: Examining the Success of the U.S. Solicitor General
*Jeff Yates (Binghamton University)
Discussant: Susan A. Bandes (University of Miami)
Criminal Justice 03: Sex, Crime, and Punishment
Time: Wed, Jun 6 - 8:15am - 10:00am
Place: HHV, TBA20
Chair: Carissa B. Hessick (Arizona State University)
The Law and Paraphilias
*Melissa Hamilton (University of South Carolina)
Child Pornography 2.0
*Carissa B. Hessick (Arizona State University)
Institutional Interference with the Criminal Prosecution of Child Abuse
*Ruth Jones (University of the Pacific)
The Trans Panic Defense
*Cynthia K. Lee (George Washington University)
Criminal Justice 04: Topics in the Theory of Crime and Punishment
Time: Thu, Jun 7 - 8:15am - 10:00am
Place: HHV, TBA20
Chair: Kimberly Ferzan (Rutgers University, Camden)
The Meaning of Consent
*Vera Bergelson (Rutgers University)
State Labelling, the European Convention on Human Rights and the Presumption of Innocence
*Liz Campbell (U of Aberdeen/U of Maryland)
Assessing the Reach of the Presumption of Innocence
*Kimberly Ferzan (Rutgers University, Camden)
Justice and Mercy
*David Gray (University of Maryland)
Discussant: Susan D. Rozelle (Stetson University)
Criminal Justice 05: Issues in Pre-Trial Procedure
Time: Thu, Jun 7 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: Laura Appleman (Willamette University)
Justice in the Shadowlands: Bail, Jail, and Extralegal Punishment
*Laura Appleman (Willamette University)
Race and Prediction
*Shima Baradaran (Brigham Young University)
Bringing Down a Legend: How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career
*Brian Gallini (University of Arkansas)
The Expressive Purpose of Corporate Criminal Liability
*Gregory Gilchrist (University of Toledo)
Criminal Justice 06: Searches, Evidence, and Privacy
Time: Thu, Jun 7 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Fabio Arcila (Touro Law Center)
Seven Theses in Grudging Defense of the Exclusionary Rule
*Lawrence E. Rosenthal (Chapman University)
The Role of Age and a Minor's Consent to Search under the Fourth Amendment
*Megan Annitto (West Virginia University)
GPS Tracking into Fourth Amendment Dead Ends: The Katz Conundrum
*Fabio Arcila (Touro Law Center)
Searches, Evidence, and Privacy
*Ellen Marrus (University of Houston)
Criminal Justice 07: Right to Counsel
Time: Thu, Jun 7 - 4:30pm - 6:15pm
Place: HHV, TBA20
Chair: Stewart M Young (University of Wyoming)
Padilla’s Two-Tiered Duty is Strickland-Lite for Noncitizens
*Cesar C Garcia Hernandez (Capital University)
Why the Supreme Court Will Not Take the Pre-Trial Right to Counsel Seriously
*Arnold Loewy (Texas Tech University)
Reconciling Right to Counsel Jurisprudence with the “Infinite Habeas” Dilemma
*Emily Uhrig (University of the Pacific)
Agents and Prosecutors and Judges, Oh My! Operational Controls for Proactive Criminal Investigations
*Stewart M Young (University of Wyoming)
Criminal Justice 08: Adjudication and Beyond
Time: Fri, Jun 8 - 10:15am - 12:00pm
Place: HHV, TBA20
Chair: William W Berry (University of Mississippi)
Ending the Failure of Finality by Federalism
*William W Berry (University of Mississippi)
Beyond the Civil-Criminal Binary: Contempt of Court and Judicial Governance
*Nirej Sekhon (Georgia State University)
Using "Crimmigration" as a Mechanism of Social Control against Latinos
*Yolanda Vazquez (University of Pennsylvania)
Discussant: Meghan J. Ryan (Southern Methodist University)
Criminal Justice 09: Criminal Law Stories
Time: Fri, Jun 8 - 2:30pm - 4:15pm
Place: HHV, TBA20
Chair: Donna Coker (University of Miami)
The Story of Wanrow: Reasonableness, Gender, and Self-Defense
*Donna Coker (University of Miami)
Accomplice Liability and the Murderous Judge
*Leo Katz (University of Pennsylvania)
Robinson v. California: From a Revolutionary Constitutional Doctrine to a Modest Ban on Status Crimes
*Erik Luna (Washington and Lee University)
The Story of Berry: When Hot Blood Cools
*Susan D. Rozelle (Stetson University)
Discussant: Mario L. Barnes (University of California, Irvine)
Tuesday, May 29, 2012
A few reading pointers for Tuesday morning
First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy.
Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!
First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki.
Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.
“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”
I agree with Hayden. The prospect reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...
Next, Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations, is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue.
Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.
Monday, May 21, 2012
Reading Assignments as a Condition of Bail? Really?
Well, as Judge Vaughn Walker says, it might have something to do with the seat.
That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail. This is my punishment." (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)
Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.
The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly. Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.
After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.
*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.). By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.
Friday, May 18, 2012
The New Info re: Trayvon Martin and George Zimmerman
The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.
1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.
2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.
3. Traces of pot were found in Martin's body at the time of his death.
4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.
None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).
A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.
P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.
5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.
6. There is no witness testimony or other evidence regarding who started the altercation.
Wednesday, May 02, 2012
DOJ Opens a New Front in the Battle Against Systemic Discrimination
More on Douglas in the next day or two. Let me talk about a different matter today. One of the great honors of my life was the opportunity I had, from 2009 to 2011, to serve as a political appointee in the Civil Rights Division of the U.S. Department of Justice, where I was Principal Deputy Assistant Attorney General for Civil Rights. (I love how long government titles are!) My boss in that job, Assistant Attorney General Tom Perez, has been incredibly aggressive in using all the tools available to the Division to address pressing civil rights issues that had not often received attention from DOJ in the past.
In the past several days, the Civil Rights Division has made two announcements that highlight its current aggressiveness. Last week, the Division announced the findings of its investigation of the Shelby County, Tennessee, juvenile court system. Those findings included some issues that had been the bread-and-butter of DOJ investigations of juvenile justice for years -- unconstitutional conditions of confinement for those in juvenile detention -- but other issues that break new ground. Most notably, the Division found systematic race discrimination in Shelby County's juvenile justice system. As the article I linked above summarizes the findings, "Black juveniles who were arrested in Memphis and surrounding Shelby County were twice as likely as whites to be detained in jail and twice as likely to be recommended for transfer to adult court, where a conviction generally brings harsher punishment, Perez said." (You can download the whole findings report at this link.)
Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act). The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults. In announcing the investigation, AAG Perez said that "[i]n the past three years, there have been at least 80 reported rapes in Missoula. At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months." This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense -- the guarantee that state and local law enforcement will protect all citizens equally against private depradations.
I should note that I played only a very minor role in the initiation of the Shelby County investigation, while the Montana/Missoula investigation entirely post-dates my time at DOJ. More about what's novel about these investigations, and why DOJ is really the only entity that can vindicate the rights at issue, after the jump.Let's start with Shelby County. Since Congress enacted the police misconduct provisions in the 1994 crime bill, the Civil Rights Division has investigated and reached settlement agreements with law enforcement agencies across the country. A fair number of these cases have involved allegations of race discrimination, but the alleged discrimination relates to on-the-street conduct by police officers and sheriff's deputies -- the classic "racial profiling" situation. The Division's recent findings regarding the Maricopa County Sheriff's Office (another matter with which I had some involvement when I was at DOJ) are an example. But Shelby County is the first matter of which I am aware in which the Division has alleged a pattern or practice of discrimination by prosecutors and judges. (The police misconduct statute empowers the Division to reach conduct not just by law enforcement officers but also by "officials or employees of any governmental agency with responsibility for the administration of juvenile justice," which explains why DOJ has jurisdiction here.)
It is impossible to address the problem of race discrimination within the criminal justice system by focusing on on-the-street law enforcement conduct alone, because a great deal of discrimination occurs in the discretionary decisions of prosecutors and judges. As Sasha Natapoff has shown with her recent work on misdemeanors, this is probably particularly true in the parts of the criminal justice system that are relatively shielded from public view and do not receive extensive formal process. The juvenile justice system is often one of those out-of-sight, out-of-mind areas of criminal justice.
In the Montana/Missoula case, what breaks new ground is not the investigation of the University -- that's standard fare for Title IX investigations -- but the broader investigation of the local Missoula police and prosecutor's office. This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police. This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense. Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison). And, as Randy Kennedy's work highlights, it has been a major problem for racial minorities who are victims of crime as well.
And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court. Discrimination is likely to be impossible to prove in any individual case. In Shelby County, any individual juvenile defendant is likely to be unable to show that he was treated more harshly because of his or her race than because of the facts of his or her case. And in Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts. Any effort to respond to these concerns by bringing the case as a class action would likely face a serious commonality problem. And any effort by an individual or private class to seek forward-looking relief would have great difficulty overcoming O'Shea v. Littleton and Los Angeles v. Lyons. (This is especially true in the Shelby County context -- in which the case would basically be identical to O'Shea -- but also likely true in the Missoula context.)
So DOJ is likely the only entity that can bring these sorts of claims into court. I still wouldn't underplay the difficulties of proof here. But the Civil Rights Division's efforts to attack the problems of systemic discrimination in juvenile justice and failure to protect crime victims are incredibly important.
Monday, April 30, 2012
United States v. Jones and the Future of the Fourth Amendment
There has been much discussion in the news, blogosphere, and general ruminations about the Supreme Court's January opinion in United States v. Jones case (ie the GPS case that said that attaching a GPS tracker and using that devise to monitor a car is a “search” under the Fourth Amendment). Scholars have started to discuss what this case means for the future of the Fourth Amendment, the future of technology in prosecution, and the future of police detection of crime. Fascinating stuff.
For those of you interested and writing on this topic, I wanted to make you aware that the AALS Criminal Justice Section has a call for papers out to add one lucky panelist to an already impressive panel on this at the AALS meeting in January 2013. Confirmed speakers for the 2013 panel are Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law. The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.
Here is some more info on the panel:
Technology and Crime: The Future of the Fourth Amendment in Public
New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.
The call for papers requires any interested faculty of AALS member and fee-paid law schools (teaching six years or less) to submit papers. The due date is August 15, 2012 and the Criminal Justice Section Executive Committee will anonymously review all submissions. (No, we will not check your CV, a cover letter OR do a citation count).
To facilitate anonymous review, please submit papers in electronic form to Professor Giovanna Shay (email@example.com). The paper should have identifying information contained on a cover sheet only; the cover page will be removed before the paper is distributed for review. The cover sheet should also include the year you began law teaching and a statement that the paper has not yet received any offers of publication.
Thursday, April 19, 2012
Arizona v. United States: Criminalizing Failure to do the Impossible
The amicus briefs in the SB1070 case are as good and interesting as in any case I have seen. They include briefs from states, members of Congress, and law enforcement authorities on both sides. There is also a brief from former Democratic and Republican cabinet secretaries opposing the law.
The Brief for the Leadership Conference on Civil and Human Rights and other groups was written in part by NYU Law students who I had the privilege of chatting with by email when they were drafting it . One important argument they advance, which I have not seen elsewhere, is that Section 3 of SB1070 criminalizes a failure to comply with a duty under the Immigration and Nationality Act which, under the intracacies of federal law, does not in fact exist.
Section 3 makes it an Arizona crime to fail to register with the federal government as required under 8 U.S.C. 1302(a). Failure to register as required is indeed a federal crime. But it is not a crime which people who enter without inspection, that is, most undocumented immigrants, can commit. This is because the statute directs the federal authorities to promulgate forms to carry out the registration program. They have done so, but none of those forms are directed to, or appropriate for, undocumented people to fill out. The forms (and thus the requirements) are all aimed at people entering the United States lawfully, or who have access to some path to lawful presence. This has been clear at least since the Eisenhower Administration promulgated a list of registration forms aimed at lawful residents and visitors.
The United States could, of course, draft and make available a form for undocumented people, and anyone who willfully failed to file would be in violation of the law. They have not done so, possibly because they regard it as unlikely that they would get many takers, and existing legal tools and penalties are sufficient to remove and punish those here without authorization. In addition, 8 USC 1304(d) requires the issuance of a receipt or other immigration document to anyone who registers. If undocumented people were subject to registration, and could register, this section implies that they would, by so doing, become legal!
The brief's punch line: "Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will criminalize their presence in this country.This is in direct conflict with Congress’s decision not to criminalize mere presence. All legislative proposals to criminalize mere presence have failed."
This little jewel of an argument makes clear what critics of the law have been saying from the beginning: States generally do not have the knowledge of immigration law to make these kinds of subtle policy choices. When they blunder ahead anyway, their basic purpose is not to help carry out the federal program, but to go beyond it, to impose punishments, restrictions and requirements that Congress and the officials designated by Congress to carry out the law have chosen not to.
Tuesday, April 17, 2012
“Breaking and Entering” Through Open Doors: Website Scripting Attacks and the Computer Fraud and Abuse Act, Part 2
Two notes: 1) Apologies to Prawfs readers for the delay in this post. It took my student and I longer than anticipated to complete some of the technical work behind this idea. 2) This post is a little longer than originally planned, because last week the Ninth Circuit en banc reversed a panel decision in United States v. Nosal which addressed whether the CFAA extends to violations of (terms of) use restrictions. In reversing the panel decision, the Ninth Circuit found the CFAA did *not* extend to such restrictions.
The idea for this post originally arose when I noticed I was able to include a hyperlink in a comment I made on a Prawfs' post. One of my students (Nick Carey) had just finished a paper discussing the applicability of the Computer Fraud and Abuse Act (CFAA) to certain types of cyberattacks that would exploit the ability to hyperlink blog comments, so I contacted Dan and offered to see if Prawfs was at risk, as it dovetailed nicely with a larger project I'm working on regarding regulating cybersecurity through criminal law.
The good news: it's actually hard to "hack" Prawfs. As best we can tell the obvious vulnerabilities are patched. It got me thinking, though, that as we start to clear away the low-hanging fruit in cybersecurity through regulatory action, focus is likely to shift to criminal investigations to address more sophisticated attackers.
Sophisticated attackers often use social engineering as a key part of their attacks. Social engineering vulnerabilities generally arise when there is a process in place to facilitate some legitimate activity, and when that process can be corrupted -- by manipulating the actors who use it -- to effect an outcome not predicted (and probably not desired). Most readers of this blog likely encounter such attacks on a regular basis, but have (hopefully!) been trained or learned how to recognize such attacks. One common example is the email, purportedly from a friend, business, or other contact, that invites you to click on a link. Once clicked on, this link in fact does not lead to the "exciting website" your friend advertised, but rather harvests the username and password for your email account and uses those for a variety of evil things.
I describe this example, which hopefully resonates with some readers (if not, be thankful for your great spam filters!), because it resembles the vulnerability we *did* find in Prawfs. This vulnerability, which perhaps is better called a design choice, highlights the tension in legal solutions to cybercrime I discuss here. Allowing commenters to hyperlink is a choice -- one that forms the basis for the "open doors" component of this question: should a user be held criminally liable under federal cybercrime law for using a website "feature" in a way other than that intended (or perhaps desired) by the operators of a website, but in a way that is otherwise not unlawful.
Prawfs uses TypePad, a well-known blogging software platform that handles (most) of the security work. And, in fact, it does quite a good job -- as mentioned above, most of the common vulnerabilities are closed off. The one we found remaining is quite interesting. It stems from the fact that commenters are permitted to use basic HTML (the "core" language in which web pages are written) in writing their comments. The danger in this approach is that it allows an attacker to include malicious "code" in their comments, such as the type of link described above. Since the setup of TypePad allows for commenters to provide their own name, it is also quite easy for an attacker to "pretend" to be someone else and use that person's "authority" to entice readers to click on the dangerous link. The final comment of Part 1 provides an example, here.
A simple solution -- one to which many security professionals rush -- is just to disable the ability to include HTML in comments. (Security professionals often tend to rush to disable entirely features that create risk.) Herein lies the problem: there is a very legitimate reason for allowing HTML in comments; it allows legitimate commenters to include clickable links to resources they cite. As we've seen in many other posts, this can be a very useful thing to do, particularly when citing opinions or other blog posts. Interestingly, as an aside, I've often found this tension curiously to resemble that found in debates about restricting speech on the basis of national security concerns. But that is a separate post.
Cybercrime clearly is a substantial problem. Tradeoffs like the one discussed here present one of the core reasons the problem cannot be solved through technology alone. Turning to law -- particularly regulating certain undesired behaviors through criminalization -- is a logical and perhaps necessary step in addressing cybersecurity problems. As I have begun to study this problem, however, I have reached the conclusion that legal solutions face a structurally similar set of tradeoffs as do technical solutions.
The CFAA is the primary federal law criminalizing certain cybercrime and "hacking" activities. The critical threshold in many CFAA cases is whether a user has "exceeded authorized access" (18 U.S.C. § 1030(a)) on a computer system. But who defines "authorized access?" Historically, this was done by a system administrator, who set rules and policies for how individuals could use computers within an organization. The usernames and passwords we all have at our respective academic institutions, and the resources those credentials allow us to access, are an example of this classic model.
What about a website like Prawfs? Most readers don't use a login and password to read or comment, but do for posting entries. Like most websites, there is a policy addressing (some of) the aspects of acceptable use. That policy, however can change at any time and without notice. (There are good reasons this is the case, the simplest being it is not practical to notify every person who ever visits the website of any change to the policy in advance of such changes taking effect.) What if a policy changes, however, in a way that makes an activity -- one previously allowed -- now impermissible? Under a broad interpretation of the CFAA, the user continuing to engage in the now impermissible activity would be exceeding their authorized access, and thereby possibly running afoul of the CFAA (specifically (a)(2)(C)).
Some courts have rejected this broad interpretation, perhaps most famously in United States v. Lori Drew, colloquially known as the "MySpace Mom" case. Other courts have accepted a broader view, as discussed by Michael Risch here and here. I find the Drew result correct, if frustrating, and the (original) Nosal result scary and incorrect. Last week, the Ninth Circuit en banc reversed itself and adopted a more Drew-like view of the CFAA. I am particularly relieved by the majority's understanding of the CFAA overbreadth problem:
The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer. This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime. While ignorance of the law is no excuse, we can properly be skeptical as to whether Congress, in 1984, meant to criminalize conduct beyond that which is inherently wrongful, such as breaking into a computer.
(United States v. Nosal, No. 10-10038 (9th Cir. Apr. 10, 2012) at 3864.)
I think the court recognizes here that an overbroad interpretation of the CFAA is similar to extending a breaking and entering statute to just walking in an open door. The Ninth Circuit appears to adopt similar thinking, noting that Congress' original intent was to address the issue of hackers breaking into computer systems, not innocent actors who either don't (can't?) understand the implications of their actions or don't intend to "hack" a system when they find the system allows them to access a file or use a certain function:
While the CFAA is susceptible to the government’s broad interpretation, we find Nosal’s narrower one more plausible. Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking, recognizing that, “[i]n intentionally trespassing into someone else’s computer files, the offender obtains at the very least information as to how to break into that computer system.” S. Rep. No. 99-432, at 9 (1986) (Conf. Rep.).
(Nosal at 3863.)
Obviously the Ninth Circuit is far from the last word on this issue, and the dissent notes differences in how other Circuits have viewed the CFAA. I suspect at some point, unless Congress first acts, the Supreme Court will end up weighing in on the issue. Before that, I hope to produce some useful thoughts on the issue, and eagerly solicit feedback from Prawfs readers. I've constructed a couple of examples below to illustrate this in the context of the Blawg.
Consider, for example, a change in a blog's rules restricting what commenters may link to in their comments. Let's assume that, like Prawfs, currrently there are no specific posted restrictions. Let's say a blog decided it had a serious problem with spam (thankfully we don't here at Prawfs), and wanted to address this by adjusting the acceptable use policy for the blog to prohibit linking to any commercial product or service. We probably wouldn't feel much empathy for the unrelated spam advertisers who filled the comments with useless information about low-cost, prescriptionless, mail-order pharmaceuticals. We definitely wouldn't about the advance-fee fraud advertisers. But what about the practitioner who is an active participant in the blog, contributes to substantive discussions, and occassionally may want to reference or link to their practice in order to raise awareness?
Technically, all three categories of activity would violate (the broad interpretation of) (a)(2)(C). Note that the intent requirement -- or lack thereof -- in (a)(2)(C) is a key element of why these are treated similarly: the only "intent" required for violation is intent to access. (a)(2)(C) does not distinguish among actors' intent beyond this. As I have commented elsewhere (scroll down), one can easily construct scenarios under a "scary" reading of the CFAA where criminal law might be unable to distinguish between innocent actors lacking any reasonable element of what we traditionally consider mens rea, and malicious actors trying to takeover or bring down information systems. At the moment, I tend to think there's a more difficult problem discerning intent in the "gray area" examples I constructed here, particularly the Facebook examples when a username/password is involved. But I wonder what some of the criminal law folks think about whether intent really *is* harder, or if we could solve that problem with better statutory construction of the CFAA.
Finally, I've added one last comment to the original post (Part 1) that highlights both how easy it is to engage in such hacking (i.e., this isn't purely hypothetical) and how difficult it is to address the problem with technical solutions (i.e., those solutions would have meant none of this post -- or of my comments on the Facebook passwords post -- could have contained clickable links). I also hope it adds a little bit of "impact factor." The text of the comment explains how it works, and also provides an example of how it could be socially engineered.
In sum, the lack of clarity in the CFAA, and the resulting "criminalization overbreadth," is what concerns me -- and, thankfully, apparently the Ninth Circuit. In the process of examining whether Prawfs/TypePad had any common vulnerabilities, it occurred to me that in the rush to defend against legitimate cybercriminals, there may develop significant political pressure to over-criminalize other activities which are not proper for regulation through the criminal law. We have already seen this happen with child pornography laws and sexting. I am extremely interested in others' thoughts on this subject, and hope I have depicted the problem in a way digestible to non-technical readers!
Thursday, April 12, 2012
The Selection of Charges in the Zimmerman case
I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman. Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.
But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight.
Anyway, curious if anyone shared my surprise (I don't want to say disappointment b/c it requires evidence of facts that I don't have) at the murder charge?
P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...
Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research.
That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc, conclude that kind of mens rea brd.
By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply.
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.
Moreover, the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence): Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
One more thing: Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."
Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there?
Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood.
Thursday, April 05, 2012
Dormant Death Sentences
One of the defects of the Supreme Court's current approach to the death penalty is the way its categorical exemption jurisprudence leaves the Cruel and Unusual Punishments Clause frozen in time. Three times in the past decade, the Court has exempted whole categories of offenders and offenses from the death penalty: the mentally retarded in Atkins v. Virginia (2002), juveniles in Roper v. Simmons (2005), and those who rape as child (or perhaps commit any non-homicide offense) in Kennedy v. Louisiana (2008). Its methodology in such cases has been to count up the number of States that authorize capital punishment for each group, also taking into account how often the punishment is actually imposed on each group, and then determining whether those numbers are small enough to indicate a "national consensus" against each practice.
Putting to one side whether a "national consensus" should even be the touchstone under the Clause as incorporated by the Fourteenth Amendment, the approach has been justifiably criticized for not allowing national consensus to shift and evolve over time. For example, although only seven States had authorized the death penalty for child rape at the time Kennedy was decided, that number had been trending upwards. Who knows how many States would have eventually authorized the practice had the Court taken a hands-off approach? The supposed "national consensus" against capitalizing child rape will never be able to evolve and perhaps dissipate because the Court froze into the Eighth Amendment the view of the practice prevalent in 2008.
That's why I wonder whether States have considered passing, or reaffirming, statutes exposing to the death penalty the mentally retarded, juveniles, or those who rape a child.After all, we very often see States passing laws regulating abortion that state legislators must realize conflict with Roe v. Wade. Surely, one purpose of such legislation is symbolic, but just as surely some of the proponents must believe that it might lead to a court case that ultimately topples Roe. Under the Court's current approach, the only way it might reconsider Atkins, Roper, or Kennedy is for a sufficient number of States to pass laws exposing the mentally retarded, juveniles, or those who rape a child to the death penalty.
But, again, the Court's methodology involves looking not just at how many States authorize capital punishment under those circumstances but how many times they actually impose it. More importantly, the only way the Court can overrule one of these cases is for there to be a real live case to use as the vehicle to do so. Thus, States would have to not only pass statutes that seem to conflict with Atkins, Roper, or Kennedy, but to actually prosecute, convict, and sentence to death people under those statutes.
Could they do so? I believe they could mete out such "dormant death sentences": sentences of death that cannot be carried out under current law but that might spring into existence if the law ever changes. The Cruel and Unusual Punishments Clause provides that "cruel and unusual punishments [shall not be] inflicted." Scholars, myself included, have examined and re-examined every word in that Clause -- except "inflicted." Following Nicholas Quinn Rosenkranz's important directive that we read the Constitution carefully to discern who exactly is the addressee of its demands and constraints (The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011)), we need to discern which branch of government "inflicts" punishment. While legislatures prescribe punishments, and judges impose punishments, only executive officials inflict punishments. Thus, it is at least arguable that legislatures can prescribe the death penalty for the mentally retarded, juveniles, and those who rape a child, and judges can impose the death penalty on them, as long as the penalty is never inflicted until Atkins, Roper, or Kennedy are overruled.
I can foresee two major objections, one pragmatic and one doctrinal. The obvious pragmatic objection is cost: the death penalty is very costly. Why would States undertake such monumental costs in cases where the prospect of ultimately carrying out the capital sanction is dim at best? My one word answer: California. Here we have a State that imposes enormous numbers of death sentences and hardly ever executes anyone -- 721 people on death row but only 13 executions since 1976. (I may have to re-think this answer after November).
The doctrinal objection is that "inflicts" must refer to the imposition of punishment because courts entertain constitutional objections to carceral sentences when the sentence is imposed, rather than dismissing such objections as unripe. If the Constitution is violated only when the punishment is carried out, the argument goes, inmates would have to wait until they have served a certain amount of time to bring a ripe constitutional claim. But it seems to me that at least one reason courts entertain such claims from the outset is that it would impossible for inmates to determine the exact moment in time when a carceral sentence is excessive and therefore a constitutional claim ripe for review. Inmates would have to continuously bring such claims and the court would have to continuously respond: "Nope, not yet." That courts entertain such claims from the outset is more a pragmatic concession to this problem -- like the "capable of repetition but evading review" exception to mootness -- than any reflection on the meaning of the word "inflicts."
Wednesday, April 04, 2012
Thoughts on the "Strip Search" Case and Crime Severity Distinctions in Criminal Procedure
Some reaction to Monday's decision in Florence v. Bd. of Chosen Freeholders has been somewhat overblown, given the fairly narrow issue resolved by the case. Florence had conceded that "strip searches" (for lack of a better term) were constitutonally permissible for those detained for serious offenses, even absent any individualized supsicion. His sole claim was that, as someone detained on a minor offense, jail officials could not strip search him absent reasonable suspicion that he had weapons or other contraband. The Court rejected the claim.
Florence is another in a line of cases in which the Supreme Court has refused to calibrate constitutional criminal procedure rules to the severity of the crime at issue. In Atwater v. City of Lago Vista, for example, the Court held that police could arrest for any offense for which they had probable cause, even one that was a "fine-only" offense, i.e., did not have any possible jail time attached. In part, the Court refused to adopt Atwater's proposed distinction between serious and minor offenses because of the hardship it would place on the police in some cases in determining which had occurred: whether drug quantity, or the value of a stolen item, was just over or just under the threshold amount for a "serious" offense, or whether it was the suspect's first or fifth offense. Likewise, in Berkemer v. McCarty, the Court rejected the State's contention that statements made in the absence of Miranda warnings were admissible where the police arrest for a traffic violation.
The one outlier is Welsh v. Wisconsin. There, the Court held that, while police could generally enter a home without a warrant to obtain evidence that would otherwise be destroyed, the same was not so for minor offenses. The police had entered Welsh's home without a warrant to arrest him and get his blood tested after they had probable cause to think he had just driven while intoxicated. Had they waited to get a warrant, the alcohol in his blood might have dropped below the critical level necessary to show he was intoxicated when he drove. Nevertheless, the Court held that, because "Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible," police could not enter the house without a warrant even though there were exigent circumstances. How the officers there were supposed to know that this was Welsh's "first offense" is unexplained.
One thing that caught my eye when I read Florence is that it cites Welsh. Well, it cites Justice White's dissent in Welsh, for the proposition that police should not be called upon to make on-the-spot determinations of crime severity. Just further proof that Welsh remains exceptional and, perhaps, vulnerable. If I were a prosecutor, and the right case came up, I would not hesitate to argue that Welsh has been undermined by later cases and ought to be overruled.
The (Very) Unusual Case of Jason Pleau
Today, the en banc First Circuit heard oral argument in U.S. v. Jason Pleau, a potential federal death penalty case out of Rhode Island -- with a strange twist.
Pleau and his accomplices are accused of robbing and murdering David Main as he was about to make a bank deposit of the proceeds from a gas station where Main worked in Woonsocket, Rhode Island. As you may know, Rhode Island does not authorize capital punishment. Pleau was indicted by the U.S. for robbery, in violation of the federal Hobbs Act, which criminalizes a robbery that "affects commerce," and murder, in violation of 18 U.S.C. 924(c)(1)(A)(iii) and (j)(1). The latter charge carries a possible death sentence, although the federal government has not yet decided whether it will seek death. Following his indictment, the federal government sought to obtain custody of Pleau, who was then in the custody of the State, by filing a detainer under the Interstate Agreement on Detainers (IAD). Rhode Island Governor Lincoln Chafee said: "No."
You read that last part right.For what appears to be the first time in the 40-odd year history of the IAD, a state governor refused to turn over a state prisoner to federal authorities under that agreement. Chafee, justifiably believing that the only reason the federal government was involved in the case was to seek Pleau's death -- Pleau had already agreed to plead guilty in state court in exchange for a sentence of life imprisonment without parole -- cited Rhode Island's longstanding opposition to capital punishment.
No fear, thought the federal government. They sought a writ of habeas corpus ad prosequendum, a common-law writ under the All Writs Act. The District Court granted the writ, ordering Gov. Chafee to turn Pleau over to the federal government. A panel of the First Circuit disagreed, accepting Chafee's and Pleau's argument that, once the federal government sought, and failed to obtain, custody under the IAD, it was prevented from doing so under the All Writs Act. The First Circuit then granted rehearing en banc.
I won't comment upon the merits of the issue currently before the en banc First Circuit, which involves the interesting intersection of the IAD and the All Writs Act, in part because I consulted with some of the amici in the case on their brief. But this little-known case implicates some very big issues.
First, there is the ever-present botched reporting by the media. Every news account I have read about this case claims that Pleau allegedly violated federal law because the killing took place outside, or near, or on the threshold of, a federally insured bank. Poppycock. There is no federal statute criminalizing robberies that take place outside, or near, or on the threshold of, a federally insured bank. To be sure, there is a federal bank robbery act, but of course Pleau didn't rob a bank. No, as I mentioned he allegedly committed a Hobbs Act robbery -- a robbery that "affects commerce" -- which has nothing to do with the fact that it was near a bank.
But that brings me to my second point which is that I doubt many people realize how broad the federal Hobbs Act is. Apparently, anyone who robs any commercial establishment violates the Act. Moreover, even if one forcibly steals the proceeds of a commercial establishment, one has likely violated the Act. There are cases upholding convictions under the Act where the defendant robbed a home, where among the stolen items were the proceeds from a commercial enterprise. Repeating a refrain from an earlier post of mine: there is lots of outrage these days over the federal government forcing people to buy health insurance; why is there so little over the fact that the federal government can put me in prison if I steal a Snickers Bar at gunpoint from the local gas station?
My larger point is about Gov. Chafee. It seems to me that his actions are exactly what the Anti-Federalist proponents of our Bill of Rights had in mind: use of state power to intercede between a citizen and the awesome power of the federal government. They contemplated that the States would act as barriers between the federal government and the people, to further the cause of human liberty. I have argued that the Cruel and Unusual Punishments Clause can be read to interpose state judgments about permissible punishments between the federal government and the people, so that the federal power to punish is limited in the same way that the States limit their own power to punish. Here, the interposition is more direct and more literal, but it serves the same end.
Of course, some such intercessions might take on a darker cast and work to defeat human liberty, such as where a racist governor protects a white supremacist from federal prosecution for violating the federal civil rights of racial minorities, where state authorities are unwilling to prosecute. But in such a case, the State is itself arguably violating a later-enacted provision of the Constitution by denying racial minorities within its jurisdiction "the equal protection of the laws." This is not such a case. Nor is this a case where a State is protecting one of its own in order that he may escape punishment for a crime altogether or, indeed, that he be treated more leniently than others similarly situated in the State. Pleau has already agreed to accept the harshest punishment possible under Rhode Island law. So long as a State is willing to forego capital punishment across the board, its determination about the acceptable bounds of punishment for crimes that occur within the State calls for deference from the federal government. If the federal government is unwilling to afford such deference, Gov. Chafee is within his rights in refusing to turn over Pleau.
Monday, April 02, 2012
Law Deans in Jail! or Law Deans in Jail?
Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...
My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.
I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in). I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)
So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.
That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)
I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews. But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that? Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though, I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically. I say this in part because I value the information-forcing benefits that rankings provide to the public.
Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...
So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach? Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?
(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)
Saturday, March 31, 2012
The Unusual Case of Marvin Gabrion
Just over a decade ago, on March 16, 2002, Marvin Charles Gabrion made history. So far as I have been able to tell, Gabrion became the first person ever sentenced to death by the United States for a crime committed in a State that absolutely forbids capital punishment. In 1997, Gabrion committed murder in the Manistee National Forest in Michigan, over which the U.S. and the State of Michigan share concurrent criminal jurisdiction. He was prosecuted, convicted, and sentenced to death by the federal government.
Resolution of Gabrion's direct appeal to the U.S. Court of Appeals for the Sixth Circuit was delayed by an important question of subject matter jurisdiction that was ultimately decided against him. It was not until August of last year that a panel of the Sixth Circuit decided his appeal, reversing the death sentence on two grounds. First, it held that the jury instructions at the sentencing phase were erroneous under the Apprendi line of cases because they failed to inform the jury that it must find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Second, the court held that the failure to instruct the jury that it could consider Michigan's lack of a death penalty to be a mitigating factor violated the Federal Death Penalty Act and the Eighth Amendment. However, both of these holdings were 2-1, and the court subsequently granted review en banc.
The supplemental briefs for both Gabrion and the U.S. have now been filed, and oral argument will likely be held this summer. Interestingly, Gabrion has not really pressed the second issue on which the Sixth Circuit panel would have granted relief. Instead, he casts it in somewhat different terms: he argues that the trial court erred by prohibiting his attorneys from arguing at the sentencing phase that the jury should consider as a mitigating fact any lingering doubt it had over whether the crime actually occurred on federal forest land. Both of the issues addressed in the supplemental briefs are not only interesting but are cert. worthy if either one is resolved in favor of Gabrion.
But my interest in this case relates primarily to my pet issue of the federal death penalty in non-death States. In January, I filed an amicus brief in the case setting forth the federalism arguments I have written about before on this blog. In essence, I advance a reading of the Cruel and Unusual Punishments Clause that measures the "unusualness" of federal punishments by whether they are consistent with the norms of the States. Since the Bill of Rights was demanded by the Anti-Federalists, who pushed hard for the preservation of state sovereignty and state autonomy in the face of the centralizing tendencies of the Constitution, it makes sense to read the Bill of Rights as having a strong federalism component. The Anti-Federalists were particularly concerned that the federal government would establish a parallel system of criminal justice that would both eliminate the need for state criminal justice systems and subject persons to criminal prosecution without the common-law protections guaranteed by state bills of rights. By tying the federal power to investigate, prosecute, convict, and punish to State norms, the Bill of Rights would eliminate any comparative advantage the federal government would otherwise have vis-a-vis state criminal justice systems. And because the constraints imposed by the Cruel and Unusual Punishments Clause stem from the common law, and because the Anti-Federalists understood the common law as varying by State, the Clause itself might impose constraints that vary by State. I spell out these thought in far greater detail in my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. ___ (forthcoming 2012).
Friday, March 30, 2012
On teaching Criminal Law again . . . and getting stoked
It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning: This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked. Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun.
Anyway, here's a bleg for Prawfs readers and bloggers: I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc. (An example: Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage. Another: I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law." What do you all do?)
Tuesday, March 27, 2012
Upcoming Conference on Race and Criminal Justice at NYU
I'm passing on some information of an exciting conference I wish I could attend, hosted by my friends at the NYU Center on the Administration of Criminal Law.
You are cordially invited to "New Frontiers in Race and Criminal Justice," the Center's fourth annual major conference.It will be held on Tuesday, April 17, 2012, in Greenberg Lounge, Vanderbilt Hall, New York University School of Law, 40 Washington Square South, New York, NY. We are pleased to announce that our keynote speaker will be Michelle Alexander, author, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Associate Professor of Law, The Ohio State University, Moritz College of Law. 5.5 NY CLE credits will be offered in Areas of Professional Practice.
Please RSVP via this link or the Center website (www.prosecutioncenter.org). Please feel free to forward this invitation to friends and colleagues. (You may also RSVP by cutting and pasting http://its.law.nyu.edu/rsvp/annual/ into your browser.)
Panel subjects will include: What should prosecutors do to address racial bias and the disproportionate impact of criminal justice policies on communities of color? How can law enforcement and police officers mitigate implicit racial bias? What can and should be done about mass incarceration, sentencing, and collateral consequences of conviction? The scholars and practitioners who will participate are:
- Anthony S. Barkow, Partner, Jenner & Block LLP; Former Executive Director, Center on the Administration of Criminal Law
- Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law
- The Honorable James E. Boasberg, United States District Judge, District of Columbia
- Bennett Capers, Professor of Law, Maurice A. Deane School of Law at Hofstra University
- Lisa Daugaard, Deputy Director and supervisor, Racial Disparity Project, Defender Association of Seattle, Washington
- Angela J. Davis, Professor of Law, American University Washington College of Law
- James Forman, Jr., Clinical Professor of Law, Yale Law School
- Vanita Gupta ('01), Deputy Legal Director, American Civil Liberties Union
- Ketanji Brown Jackson, Vice Chair, United States Sentencing Commission
- Ronald Machen, United States Attorney, District of Columbia
- Glenn E. Martin, Vice President of Development and Public Affairs, The Fortune Society
- L. Song Richardson, Associate Professor of Law, American University Washington College of Law
- Kami Chavis Simmons, Associate Professor of Law, Wake Forest University School
- David A. Sklansky, Yosef Osheawich Professor of Law, U.C. Berkeley School of Law
- J. Scott Thompson, Chief of Police, Camden, New Jersey
- Tom R. Tyler, Professor of Psychology, Yale Law School
- Whitney Tymas, Director, Prosecution and Racial Justice, Vera Institute of Justice
The conference will begin at 11:00 a.m. and end at approximately 5:45 p.m. Lunch will be served and the event will be followed by a reception.
Center on the Administration of Criminal Law http://www.prosecutioncenter.org
Angela Johnson's Death Sentence Vacated
Late last week, Angela Johnson's death sentence was vacated by the U.S. District Court for the Northern District of Iowa. In case you don't know who Angela Johnson is, she is a member of two distinctively small groups: women who have been given federal death sentences in the modern era and defendants sentenced to the federal death penalty for crimes committed in non-death States. Of the nine people in the modern era who have been sentenced to death in federal court for crimes committed in non-death States, five have now had their death sentences reversed or vacated: Valerie Friend, Johnson, George Lecco, Gary Sampson, and Ronell Wilson. This does not include Marvin Gabrion, who had his sentence reversed by the Sixth Circuit last year but whose appeal is currently pending in the Sixth Circuit en banc.
Monday, March 26, 2012
Trayvon Martin and the Initial Aggressor Issue
In my initial post on the tragic Trayvon Martin case, I intentionally avoided discussion of the "initial aggressor" issue because I wanted to focus on the no-duty-to-retreat rule set up by Florida's self-defense statute and the fact that it had little to do with the immunity from prosecution and arrest that the statute also establishes. But the aggressor issue is unavoidable.
In general, the "initial aggressor" is divested of the right to use physical force in self-defense, much less deadly physical force, unless he withdraws from the encounter and indicates to the victim his withdrawal, and then the victim pursues. Thus, even in a "no duty to retreat" jurisdiction, such as Florida, the initial aggressor does indeed have a duty to retreat before resorting to deadly force. This should sound familiar to anyone who grew up with a sibling -- who can deny the innate sense of justice invoked by the words: "But s/he started it."
The trouble lies in the "it" that the other person supposedly started. What does one have to do to be considered the initial aggressor?I have always found this to be one of the most maddeningly indeterminate questions of criminal law. In the case of U.S. v. Peterson, which I use in my Criminal Law class, the victim trespassed on the defendant's land and stole the windshield wipers from the defendant's vehicle, a misdemeanor. The defendant went into his house, retrieved a gun, returned, and told the victim not to move. The victim approached the defendant menacingly with a wrench and the defendant shot and killed him. The court held that the question of who was the initial aggressor was a question for the jury, rejecting the defendant's argument that the victim's trespass and misdemeanor theft made him the aggressor as a matter of law. (Confusingly, the court also held that the defendant had a duty to retreat, even if his dwelling extended to the curtilage of his house, because he was the initial aggressor as a matter of law!) Peterson tells us that committing an unlawful act does not necessarily make one an aggressor.
But then what does make someone the aggressor? A broad reading of some of the cases indicates that if the defendant was somehow "at fault," then he is the initial aggressor. But, if that were true, Peterson was wrongly decided because certainly the victim, by committing a theft, was the first person in the confrontation to act wrongfully. A much more narrow conception of "initial aggressor" encompasses an intent requirement -- one is the initial aggressor only if one's acts are, in the words of Peterson, "reasonably calculated to produce an affray foreboding injurious or fatal consequences" (emphasis added).
So let's apply this to the Trayvon Martin case. Florida Stat. sec. 776.041(2) is decidedly ambiguous on what an aggressor is: it provides that the right of self-defense is "not available to a person who [i]nitially provokes the use of force against himself . . . ." The critical word there is "provokes." "Provokes" might imply that some intent to precipitate violence is necessary. On the other hand, "provokes" can be read more broadly as simply triggering a violent response without intent that it occur, as when, in the classic voluntary manslaughter example, a wife "provokes" a fatal attack by her husband when he catches her in the arms of her lover, even if she did not expect to be discovered. The problem with this broad a reading is that one could be said to be the initial aggressor even by engaging in behavior that is entirely innocent, such as by asking a passerby for a handout, or even constitutionally protected, such as by telling the passerby that he practices a false religion and will burn in hell for it.
According to Zimmerman's statement to the police, released today, he had lost sight of Martin when Martin approached Zimmerman and then attacked him. Obviously, under this version of events, Martin is the initial aggressor. However, Martin's girlfriend has also said that she was on the phone with Martin when he heard him say, "What are you following me for?" and someone (presumably Zimmerman) answered, "What are you doing around here?" Martin told her that the man we now know was Zimmerman was following him and that he was going to walk quickly to get away. The Martin family lawyer has said that this information "blows Zimmerman's absurd self-defense claim out of the water."
Well, not quite. That would be true if following someone to ask questions rendered Zimmerman the "initial aggressor" as a matter of law. In that case, even if Martin had been the first to launch a physical attack, Zimmerman would have had to withdraw in order to regain the right to self-defense. But does following someone, even with the intent only to ask questions, render Zimmerman the "initial aggressor?" I would think not. This seems more like the panhandler hypothetical, except that Zimmerman had to approach and follow Martin in order to engage him in conversation. But, to me, the word "provokes" encompasses something more than asking another person questions, even one has to follow him down the street to do so.
This is not to say that Zimmerman could not be initial aggressor. If he followed Martin down the street with the intent to precipitate a violent encounter, or if he initiated physical contact, he would likely be the initial aggressor as a matter of law. And even if a jury believed that Zimmerman had no such intent, and that Martin initiated physical contact, it might be the case that Martin himself was justified in using physical force because he reasonably believed that Zimmerman was about to do him harm. In such a case, odd as it may seem, both may have had a valid self-defense claim, and there might not have been an "initial aggressor." But to say that the phone conversation between Martin and his girlfriend "blows Zimmerman's . . . self-defense claim out of the water" is, at the least, an overstatement.
Thursday, March 22, 2012
Trayvon Martin and Florida's "Stand Your Ground" Law
In the wake of the tragic killing of Trayvon Martin in Florida, there seems to be a lot of misinformation about Florida's so-called "Stand Your Ground" law which critics are pointing to as evidence that such laws allows killing with impunity.
Some say that the "Stand Your Ground" law makes it exceptionally hard to win a conviction. First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. Moreover, the prosecution often has a really good witness in a homicide case: the defendant himself, if the police have arrested and interrogated him, and whose statement often will have material discrepancies with his trial testimony, assuming he testifies (and if a defendant claims self-defense and doesn't testify, the jury will hold it against him, no matter how much we tell them not to).
So what are we left with that distinguishes Florida's law? Well, obviously there is the "stand your ground" provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. That is why Anthony Sebok wrote in 2005 that it is "unlikely . . . that this change will change outcomes in particular cases."
So what is truly distinctive about Florida's "Stand Your Ground" law? It is this: while self-defense conventionally is just that -- a defense, to be raised at trial -- self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense "is immune from criminal prosecution." This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination.
Not only that, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful." Again, the law creates a Catch-22: police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense; and where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect.
The Trayvon Martin case demonstrates the flaws in Florida's "Stand Your Ground" law. But let's not lose focus over what exactly those defects are, and they are not in the decision to abrogate the common-law duty to retreat, over which reasonable people can disagree and have for decades. No, the defect in the law is in the odd provisions that grant immunity from prosecution and even arrest, preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one.
Friday, March 16, 2012
Federalist Society Event at Chase Law School on Eighth Amendment, 3/22/12
Lawyers, law profs, and others in the Cincinnati-Northern Kentucky area are invited to a Federalist Society event at Northern Kentucky University's Salmon P. Chase College of Law on Thursday, Mar. 22, 2012. The topic is "The Supreme Court, the Eighth Amendment, and the Death Penalty: In Search of a Unifying Principle." John F. Stinneford, Assistant Professor at the University of Florida Levin College of Law, and I will be discussing our respective takes on the Supreme Court's jurisprudence on the Eighth Amendment in both capital and non-capital cases.
The event will be held in room 404 from noon to 1 p.m. Please e-mail me at firstname.lastname@example.org to let me know if you plan on attending.
Monday, March 12, 2012
Social Media and the Kony 2012 Campaign
By now, you all (likely) will have come across the Kony 2012 campaign. Sponsored by a US-based charity group, Invisible Children, this campaign aims to raise public awareness about the Lord’s Resistance Army (LRA) and its leader, Joseph Kony, through a 30 minute video that has gone viral – receiving upwards of 60 million hits (and growing fast). This documentary video has caught the attention of a star-studded cast, including Justin Bieber, George Clooney, and Lady Gaga. Kony remains at large, despite having been indicted by the International Criminal Court (ICC) in 2005 and notwithstanding the weakening of the LRA. (A rebel group, the LRA has inflicted mass atrocities in Northern Uganda, but for several years now has fled the country). Kony is charged with an array of war crimes and crimes against humanity. The Kony 2012 campaign encourages his capture and supports the intervention of Ugandan
government armed forces (assisted by American special-ops). Ever mobile, Kony is no longer in Uganda, but likely in the Central African Republic. The brutal entanglement of children in the LRA, as combatants, sex slaves, and domestic helpers, has been central to the reach of the Kony 2012 campaign and its attendant calls for support.
This campaign demonstrates the power of social media to mobilize and raise awareness. But this campaign also demonstrates the ability of social media to essentialize, sensationalize, and reductively simplify. For starters, in addition to the horrors inflicted by the LRA, the government of Uganda has also been responsible for human rights abuses in the country, including massive displacement of the local population, and also outside the country. Second, in calling for armed action, the video exhorts the very militarization that, in turn, has plagued Northern Uganda and Southern Sudan for decades already. The process of peace and justice in Northern Uganda is painstakingly complex – at the national level amnesties have played a key role – and criminal prosecutions are far from a self-evident solution, especially at the ICC. The problem of child soldiering is much more complex than the video portrays. The saving grace of international humanitarianism can only go so far – the vast majority of LRA child soldiers, after all, exited the LRA not by humanitarian rescue but, instead, by escaping or abandoning the group. Reintegration, moreover, needs to occur locally. Criminal prosecutions of a handful of recruiters are not a cure-all. To be sure, the LRA has relied on brutal abduction of children. World-wide, however, and including elsewhere in Africa, a majority of child soldiers demonstrate some initiative in coming forward and enlisting in fighting forces. Child soldiering is a global phenomenon, not just an African phenomenon – the majority of child soldiers in fact are not on the African continent. Nor are the majority of child soldiers young children – most are adolescents, often older adolescents; approximately 40% are girls; some child soldiers are implicated in grievous acts of atrocity, at times against other children.
The best way to prevent child soldiering is to understand it as a composite of practices, not as a singular practice to be generalized from the LRA. A better way to reintegrate former child soldiers, and attend to restorative needs, is to humanize former child soldiers, not present them passively as devastated mindless victims or deranged cold-blooded automatons programmed to kill. Oxford University Press recently published my book, Reimagining Child Soldiers in International Law and Policy, which I wrote to advance a nuanced conversation so as to meaningfully improve preventative and rehabilitative efforts (youtube summary here). But nuanced conversations tend to lack catchy sound-bites. Does Invisible Children, then, have it right – put a simple image forward, boldly through #StopKony, and then follow up, as it does, with some texture in responsive, albeit at times defensive, posts
that parry criticism, concern, and commentary?