PrawfsBlawg

Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?

Does the First Amendment protect lies that cause only diffuse and intangible harms? That's the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a "gross misdemeanor" to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. Though Alvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I've long been interested in this topic (see my essay, Where's the Harm?), so it is particularly nice to come across Christina Wells' new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.

Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value--whether they make any positive contribution to public discourse--then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.

First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms--lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause--pollution of the stream of information available to voters about candidates and issues and p0ssible distortion of electoral outcomes--is sufficient to justify government regulation.

Even granting that lies potentially pollute public discourse, one might still question whether a governmental remedy is needed. Mr. Alvarez, who lied about receiving the Congressional Medal of Honor, was detected after he told his lie to a former Marine who uncovered the truth in "just minutes" after "a few text messages and a check of a website with information on the fewer than 100 living Congressional Medal of Honor winners." And lies during election campaigns can be "policed," albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off. Even if these alternative methods for policing falsehoods do not work as well as government action, it is still worth questioning whether government investigation of political truths might cause enough negative effects that the government cure for lies would be worse than the disease.

In her new article forthcoming in 59 UCLA L. Rev. Discourse (2012) and titled Lies, Honor, and the Government's Good Name: Seditious Libel and the Stolen Valor Act, Chris Wells uncovers new evidence of negative consequences flowing from governmental suppression of lies. She does so, perhaps paradoxically, by delving into the history of prosecutions for seditious libel and comparing them to the regulation of lies under the Stolen Valor Act. (Get her article on ssrn here ).

Professor Wells points out that the government's asserted justifications for punishing seditious libels are similar to its justifications for punishing false claims to military honors. "Historically, government officials justified seditious libel prosecutions by claiming criticism undermined the government's honor and authority and reduced the public's respect for it, ultimately threatening national security. . . .The government's justifications for the Stolen Valor Act are eerily similar. The government seeks to punish all intentional lies about receiving a military honor because they 'misappropriate the prestige and honor associated with the medal.'" The argument further links lies about the medals to impairment of military readiness, ultimately "punish[ing] lies because they arguably undermine respect for government or government personnel." (Id. at 1-2.)

Professor Wells then traces the English roots of seditious libel and the rise and fall of seditious libel prosecutions within the United States. She recounts, of course, the debate over the Sedition Act of 1798, but she also discusses the punishment of seditious speech under the Espionage Act of 1917, when thousands were arrested simply for criticizing the US war effort. She notes: "Courts, applying a combination of constructive intent and the 'bad tendency' test, convicted hundreds" of critics of the war effort, on the grounds that their criticisms would undermine that effort. Gradually, however, the Supreme Court came to appreciate that punishing speech based on "bad tendency" insufficiently constrained official discretion, and the "Court developed its modern low value speech framework largely in response to [this problem.]" (Id. at 12).

Under this framework, the low value categories of speech all involve "independent harms" apart from their putative effects on government reputation or prestige. As Professor Wells writes, "The harm requirement is integral to creating low value speech categories. It allows the Court to create narrow categories that do not punish speech because of its disfavored content, but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm." Under this framework, the government may not begin with the presumption that lies are unprotected because they do not involve "speech that matters." Instead, it must begin with identification of concrete harm caused by the speech it seeks to regulate, for any other approach gives undue discretion to government officials to suppress speech they dislike. Professor Wells' argument in its full form is cogent and persuasive, and I hope I've not done it an injustice in my summary. It is my hope that our Supreme Court will take note of the lessons of the history of seditious libel Chris explains, lest they doom us to repeat it.

[Full Disclosure: Christina Wells is my co-author, together with Ron Krotoszysnki, Jr., and the late Steve Gey, of an Aspen casebook on First Amendment Law. This blog post was inspired by this Adam Liptak article on Ohio's election falsehoods statute.]

Guest Post by Ken Simons: The NFL Bounty as a Teachable Moment

Ken Simons (BU) writes:

The controversy over New Orleans Saints football players paying a bounty for injuring an opposing player is a telling instance of the distinction between purpose and knowledge--specifically, between purposely causing injury and knowingly causing injury.

Why such outrage over the bounty, but not nearly the same outrage over intentional hard hits that predictably cause injury? One explanation is the general distinction between purposely causing a particular type of harm and knowingly (or recklessly) causing that harm; the first is much more difficult to justify than the second.

  

We can distinguish:   

A. Intent to injure another player.  

B. Intent to hit the other player hard, as hard as the rules allow (including an intent to cause pain to the other player), which the actor knows has a high chance of injuring the other player.

In both cases, the ultimate purpose may well be the same: competitive advantage, by intimidating the other team’s players.  But there is a significant moral and legal difference in the intended or chosen means.

In a bounty system, the player acts with intent A.  The player only obtains the bounty if the injury occurs.  His chosen means is to remove the player from the game via injury.  He must, to receive the bounty, do whatever is necessary to ensure that the opposing player suffers physical injury.  (If the first hard hit does not succeed, he must try, try again...)  This conduct is exceedingly difficult to justify, and in this context, it is indeed unjustifiable.  (In boxing and some other sports, to be sure, such an intent may be justifiable.)

By contrast, in a more typical "aggressive defense" system, the player acts with intent B: he at most has knowledge that he is likely to injure another player (or that he poses a significant risk of injuring another player).  But his chosen means is not to remove the player from the game.  Acting with this type of "intent" is much easier to justify.

This distinction is, of course, also drawn in many other contexts.  It is unjust (and contrary to international law) to target innocent civilians in wartime for killing, even if this would secure a military advantage.  It is not always unjust (and is not always contrary to international law) to bomb a legitimate military target, knowing that this will unfortunately cause some civilians casualties (subject, of course, to proportionality constraints).

I do not suggest that the purpose/ knowledge distinction is the only source of public outrage over the Saints' "bounty" system.  Another possible source is the egregiously quid-pro-quo nature of paying a bounty.  Any bounty system makes it uncomfortably clear how much the NFL rewards violence.  But I doubt that the payment of bounties is the whole explanation.  Suppose, for every "hard hit" or every successful sack of a quarterback, a player received a financial reward.  I doubt that serious outrage would be the reaction.

“Breaking and Entering” Through Open Doors: Website Scripting Attacks and the Computer Fraud and Abuse Act, Part 1

IMPORTANT: clicking through to the main body of this post may will cause unusual behaviors in your web browser.
Seriously. Please read more below before clicking through to the post!

Thank you Dan, Sarah, and the other Prawfs hosts for giving me the opportunity to guest Blawg! I will be writing about a project I am currently working on with one of my students (Nick Carey), examining common website cybersecurity vulnerabilities in the context of cybercrime law.

The purpose of this post is to examine these (potential) cybersecurity vulnerabilities in PrawfsBlawg. It is the first of what I hope will be a few posts examining how current federal cybercrime law (the Computer Fraud and Abuse Act, or CFAA) applies to certain Internet activities that straddle the line between aggressive business practices and criminal intent.

While certainly possible to analyze these without a public post, making the post public provides more opportunity to showcase these vulnerabilities in a way that brings the debate to life without the "risk" of engaging attackers set on causing damage.

As other scholars have observed, judicial references to the CFAA notably increased over the past decade. Part 2 of this post, which will be forthcoming after we identify which vulnerabilities are (and are not) present in the Blawg, will provide a more substantive treatment of the legal issues involved and a (better) place for discussion.

Bargaining Your Way Out of War Crimes

Writing book reviews may be a fading fad, but I’ve agreed to do one for Criminal Law and Philosophy on Mark Freeman’s Necessary Evils: Amnesties and the Search for Justice. Freeman argues that the push in international criminal law towards banning the amnesty, although certainly understandable, comes with some costs and, hence, isn’t self-evident. According to Freeman, some room should be left for human rights abusers to bargain away their criminal liability in exchange for peace. Ultimately, Freeman sets a very high bar on the permissibility of such bargains. His bar is so high, and his conditions so complex/onerous, that in practice under his own framework the amnesty may never be possible. In any event, Freeman’s position is an unorthodox one for an international lawyer to take. In this regard, his book is brave indeed. To be sure, political scientists routinely embrace the amnesty as a means to do business. But for lawyers, steeped in retributivist ethics, the cost of doing such business may be too much to bear. Freeman frequently turns to Dan Markel’s work in order to offer theoretical background on interplay between the deontological need to punish and the utilitarian reality that sometimes non-punishment may serve a greater good. That said, these questions are far from theoretical. In September 2011, Uganda’s Constitutional Court respected an amnesty given domestically to Col. Thomas Kwoyelo, who is among the highest level leaders of the rebel Lords’ Resistance Army (LRA), notorious for massive human rights abuses, wide-scale rape, and abduction of child soldiers. The Court ordered his release; the Court of Appeals affirmed in November; but Kwoyelo is still in custody. Kwoyelo himself had entered LRA as a teenage child soldier. In response to international pressure, a couple of years ago Uganda established an International Crimes Division in its domestic courts to prosecute LRA fighters. Kwoyelo was the first person brought to trial. These fighters, like Kwoyelo, had previously been granted an amnesty (pursuant to legislation adopted in 2000) in exchange for their renunciation of violence. The debate over Kyowelo’s amnesty therefore involves tension within branches of the same state: Uganda’s constitutional imperatives to equal treatment of its citizens, on the one hand, and Uganda’s prosecutorial obligations to punish perpetrators of serious international crimes, on the other. One angle to the amnesty debate that I have not seen much of in the literature, and which I hope to explore at greater length in the review, is how reneging on an amnesty previously granted may in and of itself amount to a rule of law denial, thereby imperiling constitutional legitimacy. In this regard, respecting a painful and unattractive bargain may signal a deontological commitment to promise and predictability. Any thoughts on how upholding ugly bargains may prettify a new constitutional order? How scuttling them, however attractive in the short term, may come to blight constitutional credibility?

Criminalizing Cyberbullying and the Problem of CyberOverbreadth

In the past few years, reports have attributed at least fourteen teen suicides to cyberbullying. Phoebe Prince of Massachusetts, Jamey Rodemeyer of New York, Megan Meier of Missouri, and Seth Walsh of California are just some of the children who have taken their own lives after being harassed online and off.

These tragic stories are a testament to the serious psychological harm that sometimes results from cyberbullying, defined by the National Conference of State Legislatures as the "willful and repeated use of cell phones, computers, and other electronic communications devices to harass and threaten others." Even when victims survive cyberbullying, they can suffer psychological harms that last a lifetime. Moreover, an emerging consensus suggests that cyberbullying is reaching epidemic proportions, though reliable statistics on the phenomenon are hard to come by. Who, then, could contest that the social problem of cyberbullying merits a legal response?

In fact, a majority of states already have legislation addressing electronic harassment in some form, and fourteen have legislation that explicitly uses the term cyberbullying. (Source: here.) What's more, cyber-bullying legislation has been introduced in six more states: Georgia, Illinois, Kentucky, Maine, Nebraska, and New York. A key problem with much of this legislation, however, is that legislators have often conflated the legal definition of cyberbullying with the social definition. Though understandable, this tendency may ultimately produce legislation that is unconstitutional and therefore ineffective at remedying the real harms of cyberbullying.

Consider, for instance, a new law proposed just last month by New York State Senator Jeff Klein (D- Bronx) and Congressman Bill Scarborough. Like previous cyberbullying proposals, the New York bill was triggered by tragedy. The proposed legislation cites its justification as the death of 14-year-old Jamey Rodemeyer, who committed suicide after being bullied about his sexuality. Newspaper accounts also attribute the impetus for the legislation to the death of Amanda Cummings, a 15 year old New York teen who committed suicide by stepping in front of a bus after she was allegedly bullied at school and online. In light of these terrible tragedies, it is easy to see why New York legislators would want to take a symbolic stand against cyberbullying and join the ranks of states taking action against it.

The proposed legislation (S6132-2011) begins modestly enough by "modernizing" pre-existing New York law criminalizing stalking and harassment. Specifically, the new law amends various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means. More ambitiously, the new law increases penalties for cyberbullying of "children under the age of 21," and broadly defines the activity that qualifies for criminalization under the act. The law links cyberbullying with stalking, stating that "a person is guilty of stalking in the third degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directing electronic communication at a child [ ], and knows or reasonably should know that such conduct: (a) causes reasonable fear of material harm to the physical health, safety or property of such child; or (b) causes material harm to the physical health, emotional health, safety or property of such child." (emphasis mine) Even a single communication to multiple recipients about (and not necessarily to) a child can constitute a "course of conduct" under the statute.

Like the sponsors of this legislation, I deplore cyber-viciousness of all varieties, but I also condemn the tendency of legislators to offer well intentioned but sloppily drafted and constitutionally suspect proposals to solve pressing social problems. In this instance, the legislation opts for a broad definition of cyberbullying based on legislators' desires to appear responsive to the cyberbullying problem. The broad statutory definition (and perhaps resorting to criminalization rather than other remedies) creates positive publicity for legislators, but broad legal definitions that encompass speech and expressive activities are almost always constitutionally overbroad under the First Amendment.

Again, consider the New York proposal. The mens rea element of the offensive requires only that a defendant "reasonably should know" that "material harm to the . . . emotional health" of his target will result, and it is not even clear what constitutes "material harm." Seemingly, therefore, the proposed statute could be used to prosecute teen girls gossiping electronically from their bedrooms about another teen's attire or appearance. Likewise, the statute could arguably criminalize a Facebook posting by a 20-year-old college student casting aspersions on his ex-girlfriend. In both instances, the target of the speech almost certainly would be "materially" hurt and offended upon learning of it, and the speakers likely should reasonably know such harm would occur. Just as clearly, however, criminal punishment of "adolescent cruelty," which was a stated justification of the legislation, is an unconstitutional infringement on freedom of expression.

Certainly the drafters of the legislation may be correct in asserting that "[w]ith the use of cell phones and social networking sites, adolescent cruelty has been amplified and shifted from school yards and hallways to the Internet, where a nasty, profanity-laced comment, complete with an embarrassing photo, can be viewed by a potentially limited [sic] number of people, both known and unknown." They may also be correct to assert that prosecutors need new tools to deal with a "new breed of bully." Neither assertion, however, justifies ignoring the constraints of First Amendment law in drafting a legislative response. To do so potentially misdirects prosecutorial resources, misallocates taxpayer money that must be devoted to passsing and later defending an unconstitutional law, and block the path toward legal reforms that would address cyberbullying more effectively.

With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Legislators may find it difficult to address all the First Amendment ramifications of criminalizing cyberbullying, partly because the term itself potentially obscures analysis. Cyberbullying is an umbrella term that covers a wide variety of behaviors, including threats, stalking, harassment, eavesdropping, spoofing (impersonation), libel, invasion of privacy, fighting words, rumor-mongering, name-calling, and social exclusion. The First Amendment constraints on criminalizing the speech behavior involved in cyberbullying depends on which category of speech behavior is involved. Some of these behaviors, such as issuing "true threats" to harm another person or taunting them with "fighting words," lie outside the protection of the First Amendment. (See Virginia v. Black and Chaplinsky v. New Hampshire; but see R.A.V and my extended analysis here.). Some other behaviors that may cause deep emotional harm, such as name-calling, are just as clearly protected by the First Amendment in most contexts. (Compare, e.g., Cohen v. California with FCC v. Pacifica).

But context matters profoundly in determining the scope of First Amendment protection of speech. Speech in schools and workplaces can be regulated in ways that speech in public spaces cannot (See, e.g., Bethel School Dist. No. 403 v. Fraser). Even within schools, the speech of younger minors can be regulated in ways that speech of older minors cannot (Cf. Hazelwood with Joyner v. Whiting (4th Cir)) , and speech that is part of the school curriculum can be regulated in ways that political speech cannot. (Compare, e.g., Tinker with Hazelwood). Outside the school setting, speech on matters of public concern receives far more First Amendment protection than speech dealing with other matters, even when such speech causes tremendous emotional upset. (See Snyder v. Phelps). But speech targeted at children likely can be regulated in ways that speech targeted at adults cannot, given the high and possibly compelling state interest in protecting the well-being of at least younger minors. (But see Brown v. Ent. Merchants Ass'n). Finally, even though a single instance of offensive speech may be protected by the First Amendment, the same speech repeated enough times might become conduct subject to criminalization without exceeding constitutional constraints. (See Pacifica and the lower court cases cited here).

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

[FYI: This blog post is the underpinning of a talk I'm giving at the Missouri Law Review's Symposium on Cyberbullying later in the week, and a greatly expanded and probably significantly changed version will ultimately appear in the Missouri Law Review, so I'd particularly appreciate comments. In the article, I expect to create a more detailed First Amendment guide for conscientious lawmakers seeking to regulate cyberbullying. I am especially excited about the symposium because it includes mental health researchers and experts as well as law professors. Participants include Barry McDonald (Pepperdine), Ari Waldman (Cal. Western), John Palfrey (Berkman Center at HLS), Melissa Holt (B.U.), Mark Small (Clemson), Philip Rodkin (U. Ill.), Susan P. Limber (Clemson), Daniel Weddle (UMKC), and Joew Laramie (consultant/former direction of Missouri A.G. Internet Crimes Against Children Taskforce).]

Rupert Murdoch and the FCPA

The Foreign Corrupt Practices Act is a controversial federal statute that was enacted in 1977 and was intended to deter and reduce bribery of foreign officials for US business. It has contributed substantially to the number of deferred prosecution agreements (DPA's) that the federal government signs (usually) with large, publicly held corporations.  Ordinarily, the corporation gets into trouble when one or more of its employees pays money to a foreign official in connection with the corporation's business transactions.  

On those occasions when the government prosecutes the individuals responsible for violating the FCPA, the results can be mixed.  For an example of a recent loss, you can see this juror's discussion at Mike Koehler's FCPA Professor Blog, which discusses how and why the government failed to secure convictions in a case that involved an undercover sting and ruse to bribe the defense minister of Gabon.  The case had been considered pathbreaking because it involved an undercover sting; now, it may be pathbreaking because it involves a massive loss and the government is considering dropping its remaining prosecutions. 

According to the conventional wisdom, FCPA convictions (at least conviction of those individuals willing to take the cases to trial) are difficult to secure because the underyling transactions are often complex and difficult to understand.  Reasonable doubt abounds. 

But that might not be such a problem if the government decides to go after Rupert Murdoch's News Corp.  The company, which is headquartered in New York, is currently the subject of a number of investigations, here and overseas.  Senators and Congressmen began calling for investigations back in July, and the FBI's FCPA investigation seems to be moving forward, as reported by Reuters today.  The FCPA investigation relates to News Corp employees' payment of money to (British) police officials.  Unlike most FCPA cases, I can't imagine jurors will have too much difficulty understanding the underlying transactions.  Perhaps this is why News Corp hired Mark Mendelson back in July 2011.  

Reading list suggestions for Crim Students

A student of mine asked me recently about books that give an inside feel of what it's like to be a lawyer in the criminal justice system. I thought I'd crowdsource and invite you to weigh in. 

Off the top of my head, I could think of a few. I haven't read them all or even many of them, so perhaps I should add them to my Amazon wish list...feel free to add more suggestions in the comments.  

David Feige, Indefensible

John Kroger, Convictions

Dershowitz, The Best Defense

Abbe Smith, Case of a Lifetime: A Criminal Defense Lawyer's Story

Kevin Davis, Defending the Damned 

Stephen Bogira, Courtroom 302

 

A Recent Illustration of Political vs. Comprehensive Retributivism

This post will exhibit fidelity to Paul's recent heuristic for determining which posts belong to which writers. Yes, this is about retributive justice, and punishment more generally. I raise it now in part because a couple of my favorite folks in the field are guesting on Prawfs, Michael O'Hear and Carissa Hessick, and perhaps they'll want to weigh in.

In some of my recent work, I've tried to elaborate the distinction between what I call political retributivism from comprehensive retributivism. I'm a fan of the former in liberal democracies but more likely to enlist with the comprehensive retributivists, to some extent, in wicked regimes. Part of the attraction to political retributivism is that it recognizes the special communicative language that state punishment speaks in, and it attempts to impose, calibrate, and justify only the liberal state's efforts at authorized punishment for criminal offenses, rather than trying to make sense of or justify the amount of suffering an offender experiences in response to his moral wrongdoing. So the emphasis is on punishment for offenses rather than suffering for wrongdoing. It's pretty difficult to tell which approach has more adherents within the retributive justice camp. I like to think the political approach is winning the hearts and minds of most criminal law theorists, at least within liberal democracies, but it's pretty clear that it hasn't happened yet. 

Criminal law theorists are not without their standard ways of drawing examples to illustrate the differences between the approaches: we often talk about the burglar who breaks his leg during the home invasion or the reckless driver who kills a family member as a passenger in his car. Should the fact of private suffering mitigate state punishment or liability, or in extreme cases, thwart liability by way of prosecutorial declinations?

Often, these examples seem abstract. Here's one ripped from the pages of the recent news. A couple weeks ago, a New York man perpetrated a crime of unspeakable cruelty: he doused a 73 year old woman in gasoline, and then lit her on fire in an elevator, and blocked her escape so she had to burn to death.  As the reporter for the Times put it:

Mr. Isaac, 47, methodically set the woman aflame, burning her alive in the elevator of her building in Brooklyn on Saturday, only a few feet from her apartment door, the police said. He sprayed the flammable liquid in the woman’s face and over her cowering body, and then lighted a Molotov cocktail to ignite the fire.

Within minutes, Ms. Gillespie was burning to death in the narrow cab, and her assailant had fled down the stairs. The attack lasted only a few minutes, all of it captured by surveillance cameras; the sheer, calculated brutality stunned even the most hardened of homicide detectives.

During the course of the crime, he experienced some severe burns himself. Now I take it as a given that his liability to murder charges shouldn't be influenced by his private suffering that he experienced as a result of his crime. (Notice that his suffering is a result of his crime but not a response by others to his crime.)  I also think I would be unmoved by any desert-grounded claim that his sentence should be reduced, even somewhat, as a result of his injuries, which don't appear to be life-threatening. But here, I constantly face challenges, not only from comprehensive retributivists, but also the various utilitarians out there who think that "extra-legal suffering" should be offset by reductions in legal penalties. To me, it's a crazy suggestion that indicates that people don't understand the social meaning of punishment correctly, but it's an intuition that remains rather obdurately.  

 

Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be an awfully small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

It understates the costs because it reflects a crude calculation: BJS merely divided the total budget of prosecutors’ offices by the number of felony cases.  However, prosecutors do much more than simply prosecute felonies.  For instance, BJS’s 2001 survey revealed that most prosecutors’ offices also handle misdemeanors, traffic violations, juvenile matters, and civil litigation on behalf of government agencies.  Close to half also do child-support collection.  If we took into account all of these other prosecutorial activities, the amount spent per felony prosecution would presumably be much less than $2,792.

Moreover, the $2,792 average also reflects all manner of overhead expenses.  To get a real sense of the scale of prosecutorial effort per case, it might be more illuminating to factor out some or all of the overhead (although this is probably much easier said than done).

Finally, the $2,792 figure reflects just the costs in jurisdictions of one million or more.  Costs probably tend to be higher in big cities than in other jurisdictions, which means that the overall national average is likely quite a bit less than the $2,792.  As I calculate it ($5.8 billion in total prosecution budgets divided by 2.9 million felony cases), the overall average would be $2,000.

But these numbers also significantly understate the societal expense in screening and adjudicating felony cases, for they omit the money spent on police, courts, and defense representation.

Still, it may not be entirely inaccurate to say that the prosecutor’s decisions are the most important ones for the criminal-justice system to get right.  Indeed, the charging decision is arguably the single most important decision in the entire process, based both on its immediate impact on a defendant’s life (stigma, risk of pretrial detention, costs of defense, etc.) and on the high rate of conviction of charged defendants (the new BJS survey indicates that 2.9 million felony cases in 2007 resulted in 2.2 million convictions).  The prosecutor’s decisions with respect to plea-bargaining and (in some jurisdictions) sentencing recommendations are also momentous.

Bottom line: the $2,792 figure misses an awful lot, but it does point to a mass-production, rough-justice quality to much felony prosecution and raises the question of whether spending more money on prosecutors would in some sense produce better outcomes.

(Of course, part of the problem with posing this question is that it is not immediately clear how one ought to measure the quality of outcomes in criminal matters, apart from avoiding wrongful convictions.)

In any event, the BJS report also gives us some insight into why felony prosecutions are cheap.

For one thing, survey respondents indicated that only 3% of all felony cases were resolved by way of a jury verdict.  This highlights how completely (cheap) plea bargains have replaced (expensive) jury trials as the dominant method of case resolution.  Again, one might pause here to question what (if anything) has been lost quality-wise by dispensing with jury trials in our criminal-justice system.

ƒƒThe BJS report also indicates that prosecutor salaries are not especially high:

The average annual salary for assistant prosecutors ranged from $33,460 for entry-level assistant prosecutors in part-time offices to $108,434 for assistant prosecutors with 6 or more years of experience in offices serving jurisdictions of 1 million or more residents.

Granted, $108,434 probably looks pretty good to many attorneys in the current legal market, but bear in mind that this is where experienced big-city prosecutors are maxing out.  Also, I wonder if this is one area in which the 2007 data are particularly out-of-date — my sense is that the last four years have hardly been kind to prosecutorial paychecks.

 

A Visit From the Ghost of Jury Service Past

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Life Sentences.

Sentencing and Institutional Coordination: A Wisconsin Example

I've posted a couple of times this month on the most recent incarceration data from Indiana, Minnesota, and Wisconsin. This post considers historical data. I’m particularly interested in the impact of a major change in sentencing law that was adopted in Wisconsin in 1998. Under the “truth in sentencing” law, parole was abolished for crimes committed on or after December 31, 1999. What impact did this have on the size of the state’s prison population? Two hypotheses occur to me. First, if judges continued to impose the same nominal sentences that they had been imposing, one would expect the prison population to grow because offenders would be serving longer real sentences. Alternatively, judges might have reduced their nominal sentences to account for the loss of parole release options, attempting thereby to achieve the same real sentences as before TIS; such discounting would presumably lead to stability in the imprisonment rate.

The data, set forth in the table below, seem to support the latter hypothesis, with the current rate of imprisonment almost exactly matching that of 2000, the first full year after TIS took effect. Indeed, since 1999, the state’s imprisonment rate has been remarkably stable. The single largest annual change since 1999 was a 5.8% drop in 2005. This makes for quite a contrast with the volatile 1992-1999 time period, when annual increases averaged 12%.

The picture becomes even more interesting if we focus on Wisconsin’s imprisonment rate relative to that of peer states Indiana and Minnesota.

 

Since TIS, Wisconsin’s imprisonment rate has dropped markedly in comparison with those of the peer states. In 1999, Wisconsin had an imprisonment rate 21% higher than Indiana’s, while the current rate is only 84% of the Hoosier State’s. Likewise, in 1999, Wisconsin’s imprisonment rate was more than triple Minnesota’s, but is now only a little more than twice that of its neighbor to the west.

Wisconsin’s strong improvement in imprisonment rate relative to its peer states does not seem merely a function of more significant gains in reducing violent crime. Although Wisconsin has reduced its violent crime rate most years (eight out of eleven) since 1999, Indiana has been no less consistently successful on this front, and Minnesota only a little less so (six years out of eleven). Indeed, Wisconsin’s rate of violent crime in 2010 was actually slightly higher than it was in 1999 (248.7 versus 245.8), while Minnesota’s (236.0 versus 274.0) and Indiana’s (314.5 versus 374.6) were much lower.

If not crime rate, what else might explain Wisconsin’s greater success in holding the line on imprisonment for the past decade than Indiana or Minnesota? Has TIS itself played a role? It is hard not to think so in light of the abrupt break that occurred in 2000 in what had been an established pattern of large annual increases in Wisconsin’s imprisonment rate.

It is not immediately clear why TIS would have put the brakes on a rapidly expanding prison population. One possibility is that sentencing judges in the tough-on-crime 1990’s were overestimating and overcompensating for the lenience of the parole board. Perhaps the parole board itself was something of a moving target, tightening up its standards in the ‘90’s in ways that were not understood by sentencing judges. If so, then the dramatic growth of the state’s prison population may have been in part due to a communication and coordination problem between the judiciary and the parole board. By taking the parole board out of the equation for new crimes, TIS may have mitigated a dysfunctional institutional dynamic.

	WI Imprisonment Rate (per 100,000)	Percent Change from Previous Year	WI Rate as Percent of IN	WI Rate as Percent of MN
1991	158.5	__	64.6%	191.0%
1992	163.6	3.2%	66.3%	191.8%
1993	174.3	6.5%	68.6%	187.4%
1994	197.2	13.1%	75.6%	196.8%
1995	218.6	10.9%	78.7%	208.0%
1996	251.8	15.2%	87.0%	227.5%
1997	314.9	25.1%	104.0%	277.0%
1998	356.3	13.1%	110.8%	302.2%
1999	388.8	9.1%	121.3%	311.0%
2000	386.9	-0.4%	116.9%	305.1%
2001	397.6	2.8%	116.2%	300.1%
2002	406.9	2.3%	115.9%	286.8%
2003	413.1	1.5%	111.0%	266.0%
2004	417.3	1.0%	108.2%	242.9%
2005	392.9	-5.8%	98.3%	227.0%
2006	404.9	3.1%	98.0%	235.1%
2007	405.1	<0.1%	94.6%	227.1%
2008	401.8	-0.8%	90.6%	228.0%
2009	397.6	-1.0%	88.7%	217.6%
2010	387.2	-2.6%	84.2%	217.8%

 

Intent and the Eighth Amendment: New Restrictions on Sentencing in Cases of Felony Murder?

The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of cases in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

The cases both involve fourteen-year-old murderers sentenced to life without parole.  In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder.  The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants.  Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:

He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.

Jackson v. Norris,  2011 Ark. 49 (Danielson, J., dissenting).  If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, the holding might have some interesting implications for Tison.  Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.

Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions.  I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.

This is in part because the way the Court performs the objective analysis has changed, and in part because several states have changed their laws since 1987.  You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where the Tison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it.  Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.

As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:

First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence.  Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis.  (1406-07)

On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework.  I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.”  (1408)  Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed.  (1404)

I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.

Cross posted at Life Sentences.

Imprisonment Rates and the Racial Threat Hypothesis

In a post last week, I highlighted a wide gap in the incarceration rates of three medium-sized, midwestern states.  The ordering of the three states from highest incarceration rate to lowest (Indiana, Wisconsin, Minnesota) corresponds with the ordering from highest rate of violent crime to lowest.  However, for reasons I explained in the previous post, I don’t think  the analysis ought to end with the simple assertion that high crime drives high incarceration.  For one thing, there is Minnesota: with a crime rate only a little lower than Wisconsin’s, Minnesota has an incarceration rate that is much lower.  There must be other factors at play besides just the crime rate to account for Minnesota’s incarceration rate.  For another, to focus on the crime-incarceration connection begs the question of what drives the very different crime rates of the three states.

In this post, I’ll explore another possible way of accounting for differences in the three states’ incarceration rates, the racial threat hypothesis.  The basic idea is this: a larger racial minority population causes the majority to feel more threatened by the minority and consequently to prefer to stronger social control measures.

Here are the key numbers from Indiana, Wisconsin, and Minnesota:

	IN	WI	MN
Black Population (2010)	591,397	359,148	274,412
Blacks as Percentage of Total Population (2010)	9.1%	6.3%	5.2%
Imprisonment Rate (2010, per 100,000)	459.9	387.2	177.8

As you can see, the incarceration-rate order tracks the order based on the size of the each state’s black population.

Interestingly, the pattern does not hold if you focus on the size of the white population.  The three states are almost indistinguishable in how white they are, and the order of “whiteness” does not follow the incarceration-rate order: Wisconsin is number one (86.2% white), followed by Minnesota (85.3%) and Indiana (84.3%).  We might hypothesize, then, that there is something about having a relatively large percentage of a particular minority group that tends to push incarceration rates higher.

A similar pattern is evident nationally.  Consider the top ten states by imprisonment rate (from highest to lowest):

	Ratio of Blacks to Whites	Rank Among States Based on Black:White Ratio	Ratio of Hispanics to Non-Hispanic Whites	Rank Based on Hispanic Ratio
LA	0.5	2	<0.1	40
MS	0.6	1	<0.1	38
OK	0.1	25	0.1	20
AL	0.4	6	0.1	34
TX	0.2	17	0.5	4
AZ	0.1	33	0.7	1
FL	0.2	11	0.3	7
GA	0.5	2	0.1	15
AR	0.2	14	0.1	27
SC	0.4	5	0.1	29

Thus, among the top ten imprisoning states, eight are also among the top ten in the proprtion of blacks or Hispanics.  A ninth, Arkansas, is only a little outside the top ten for blacks.  The tenth, Oklahoma, seems to deviate from the pattern, but is still in the top half of both the black and Hispanic scales.

Now consider the bottom ten imprisoning states (from lowest to highest imprisonment rate):

	Ratio of Blacks to Whites	Rank Among States Based on Black:White Ratio	Ratio of Hispanics to Non-Hispanic Whites	Rank Based on Hispanic Ratio
ME	<0.1	44	<0.1	48
MN	0.1	32	0.1	36
NH	<0.1	46	<0.1	45
RI	0.1	29	0.2	13
MA	0.1	27	0.1	22
ND	<0.1	43	<0.1	46
UT	<0.1	45	0.2	13
NB	0.1	34	0.1	25
WA	<0.1	37	0.1	16
VT	<0.1	47	<0.1	47

Note that not one of the bottom ten for imprisonment is among the top ten based on the proportion of either blacks or Hispanics.

A possible explanation for these patterns comes from scholars who write about the “racial threat” phenomenon.  I’ll crib a little bit from a fascinating new article by Christian Breunig and Rose Ernst, “Race, Inequality, and the Prioritization of Corrections Spending in the American States,” 1 Race & Justice 233 (2011):

“Racial threat,” in the most simplified terms, describes a group of theories positing a relationship between the sizes of the Black population in one area to the extent of social control measures aimed at that population.  Broadly speaking, this theory posits that the presence of a racialized “other” in a population increases fear and/or hostility among White Americans toward this other group which, in turn, provokes support for social control policies.  Social control policies include but are not limited to social service policies such as “welfare,” as well as a host of criminal justice policies.  For example, Pamela Irving Jackson’s work in the area of policing has found a connection “between minority group size, competition for sociopolitical dominance, and the level of policing resources.”  (235)

In order to test the racial threat hypothesis, Breunig and Ernst have studied data from all fifty states over a fifteen-year time period and attempted to control for many different variables.  Their focus was on corrections spending, not imprisonment rates per se (my focus), but one would expect a correlation between the two.  More specifically, their dependent variable was what they call the “corrections priority index” (CPI), which is simply the percentage of state spending that goes to corrections.

Surprisingly, Breunig and Ernst found that CPI does not seem to be determined by any of the obvious political factors, such as which party is in power or whether the population is more liberal or conservative:

An intriguing aspect of our analysis is that we did not discover any evidence that institutional and political factors, including partisanship, divided government, referendum, and citizen ideology, influence the prioritization of corrections spending.  (243)

If not those factors, then what?

On the whole, our analysis suggests that structural factors, specifically racial threat and inequality, are the dominant forces in determining the prioritization of corrections spending. . . . We also find that the number of people incarcerated in state prisons as well as murder rates are statistically significant but have only small effect.  (243)

Breunig and Ernst more precisely quantified the racial effect as follows: “[A] 1% increase in the percentage of the African American population in a state leads to at least a 0.2% increase in the CPI.”  (244)

One potential response to this research is that race per se may not matter since we know that race is closely correlated in this country with poverty.  In other words, one might wonder if the “racial threat” theory should be recast as a “poverty threat” theory.

However, Breunig and Ernst also considered the effect of economic inequality on the CPI, and found that the racial variable had a distinct effect.  At all levels of inequality, increasing the black percentage of the population also increased the CPI.  Breunig and Ernst did find that inquality mattered, but only in states with relatively low black populations.  They suggest that “racial cleavages” are the primary social division that politicians exploit, but that class cleavages become salient in their own right in states in which there is little racial threat (238).

Putting all of this together, we might hypothesize that one explanation for Indiana’s high imprisonment rate (relative to Wisconsin’s and Minnesota’s) is that Indiana has a much larger black population, which triggers racial threat dynamics and a more powerful demand in the political system for social control.

But, if that’s right, how do we account for the fact that Indiana has much lower racial disparities in its prison population than its two neighbors to the north?  If Indiana’s whites feel more threatened by blacks, shouldn’t that translate into more vicious racial disparities?

Not necessarily.  This is all quite speculative, but let me suggest three possible reasons why strong racial threat dynamics might not necessarily produce high racial disparities.  First, the political demand for more aggressive social control must be mediated through a legal system that may be more committed to racial equality norms than the population at large.  Second, a relatively large black population probably means not only stronger racial threat effects, but also a greater voice for blacks in a state’s political and legal systems.  Blacks may not be able to (and indeed may not wish to) blunt the state’s demand for penal severity, but may be able to exercise some influence in minimizing the extent to which the demand is met through racially discriminatory policies and practices.  Finally, racial threat dynamics may serve to undermine social trust generally across a state’s population, leading to relatively higher white crime rates.

To be clear, I don’t think anything in my analysis here demonstrates that racial threat dynamics play an important role in explaining the relative imprisonment rates of Indiana, Wisconsin, and Minnesota.  But, to my mind, the racial threat hypothesis remains an intriguing possibility that may warrant further research.

The next post in the series will examine how imprisonment rates in the three states have changed over the past twenty years.

Cross posted at Life Sentences.

Interesting Questions About Shaming and Accountability

I recently returned from a wonderful visit at the IDC in Herzliya, where I taught a mini-course on punishment theory; it was a good opportunity for me to test out some materials from Criminal Law Conversations (which I now highly recommend, by the way). All that is background to a question I just received from a student of mine there who asked, on behalf of her friend, of a possible campaign to hold deadbeats responsible for their delinquency. 

 

"Here is the rundown: My organization wants to come up with an innovative project that furthers women's rights in some way.  My boss came up with the idea for a website that would allow women who have gone to court and won a judgment against their ex-husbands for child support or whatnot (which the ex-husband is not paying or complying with) and post their picture and a summary of the judgment on the internet. The point being to hold these men publicly accountable and maybe shame them into paying up. This sounds like it has a potential of being illegal and crossing some confidentiality boundaries. In the U.S. are family court decisions open record?"

 

My student raised another question regarding shaming for child support issues. She said she thought that in Seattle one can be held in contempt of court and incarcerated for failing to pay child support. If contempt of court is a crime, then would it become part of the public record or would that be a private family court decision? 

Although I've written on public shaming sanctions, I don't know the specific governing law as to this issue in Washington or Israel for that matter. But the issue here is private shaming, not public shaming. It makes me think of the story about the South African radio station trying to stigmatize men who, on account of their philandering, were introducing HIV to their spouses; the radio djs called out the men for bad behavior on the radio station. My intuition would be that free speech principles coupled with private actors and public records would be sufficient to prevent legal recourse by these "shamed" men both in the US and in Israel, but I'd be curious to hear if others disagree as a practical matter, putting aside the normative issues of whether such men should be shamed. For what it's worth, I have reasonably strong views against public (state-sponsored) shaming, but privately initiated exposure of wrongdoing, especially when it is intermediated by the internet and it reflects wrongdoing that has already been adjudicated, is quite different and doesn't raise a lot of the same concerns I have elaborated elsewhere.

(Only signed, verifiably addressed, and substantive comments are invited.)

 

Let 'em Roll: New Paper on Good Time

My new working paper on good time credits for prison inmates is now on SSRN.  The subtitle conveys the basic direction of my argument: "Why Following the Rules Should Get You Out of Prison Early."  I see this as a companion piece to my just-published article "Beyond Rehabilitation: A New Theory of Indeterminate Sentencing," 47 Am. Crim. L. Rev. 1247 (2011).  In both papers, I'm trying to explore my intuition that some of the old structures of indeterminate sentencing, like parole and good time--which are still common in practice, despite heavy academic criticism since the 1970's--embody or respond to certain nonutilitarian moral sensibilities.  Although parole and good time are closely linked as an historical matter with the rehabilitative paradigm of criminal law, the justification of parole and good time may not necessarily require that they demonstrably contribute to inmate rehabilitation.

The abstract for the new paper appears after the jump.  The paper includes at the end a rather lengthy chart surveying good-time laws from across the United States.  I haven't yet confirmed all of the information, and I would be especially grateful for readers to let me know if I have gotten anything wrong in the chart.  In doing the research for this paper, I've been surprised both by the great technical complexity of good-time law and by how dynamic it is--several states made significant changes to their laws between the time that I began the research and the time that I prepared the current draft of the chart.

Here's the abstract:

Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. 

Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.

In response to this important challenge, the present Essay proposes a new way to conceptualize good-time credits, specifically, as a way to recognize atonement. Drawing on increasingly influential communicative theories of punishment, the Essay argues that good time can be seen as congruent with (and not, as is commonly supposed, in opposition to) the basic purposes of sentencing. The Essay then proposes reforms that would help good-time programs more fully to embody the atonement ideal.

Imprisonment in Three States: Comparing the Data from Wisconsin, Minnesota, and Indiana

I've been doing a series of posts comparing criminal-justice data from three medium-sized, midwestern states, Wisconsin (my own), Minnesota, and Indiana. In the first post in the series, I explored the large gap between the incarceration rates of Minnesota and Wisconsin.  In the second, I discussed racial disparities in the incarcerated populations of the two states.  The disparities in both states are wide, although Wisconsin’s are somewhat larger.  In this entry, I add a third state, Indiana, to the statistical comparisons.  As a demographically and geographically similar state, one might expect that Indiana would have criminal-justice numbers that are similar to Minnesota’s and Wisconsin’s.  Indiana’s numbers, however, point to a criminal-justice sustem that is much larger and harsher than those of its northern neighbors.

As detailed in the table that appears after the jump, Indiana’s imprisonment rate (about 460 per 100,000) easily outstrips Wisconsin’s (387) and dwarfs Minnesota’s (178).  Perhaps even more surprisingly, Indiana’s probation population also exceeds Minnesota’s.  My Minnesota-Wisconsin comparison suggested that Wisconsin imprisons many defendants who would get probation in Minnesota, leading to a much smaller probation population in the former than in the latter.  But Indiana seems to incarcerate the same way that Wisconsin does, without any accompanying reduction in the probation numbers.

For that reason, Indiana’s total supervised population of 167,872 is the largest of the three states (although Minnesota, with the smallest overall population of three, still has a somewhat larger per capita supervised population, thanks to its enormous per capita probation rate).

Indiana also leads the way in crime.

Among the three states, Indiana has highest rate of violent crime, property crime, and homicide.  Higher crime rates may in some sense help to account for Indiana’s higher incarceration and supervision numbers.  For instance, to use a rough measure of the crime-incarceration link, Indiana had 1.5 prisoners in 2010 for each violent crime committed that year.  This is about the same as Wisconsin’s 1.6.  It is thus plausible to suppose that Wisconsin’s prison population would match Indiana’s if Wisconsin had the same number of violent crimes as the Hoosier state.

On the other hand, Minnesota only had about 0.8 prisoners per violent crime, suggesting that the differences between Indiana and Minnesota are not merely the result of different crime rates.

In any event, it is probably too simplistic to assume a one-way relationship between crime and imprisonment.  Imprisonment itself may be crimogenic.  The sorts of life experiences and collateral consequences that flow from incarceration may increase the recidivsm risks of many offenders.  Additionally, some criminologists argue that mass incarceration can have negative cultural effects in some communities; for instance, incarceration may become a source of pride, rather than social stigma, for young men.

For these reasons, it may be as accurate to say that Wisconsin’s lower imprisonment rate leads to its lower crime rate, as it is to say that Wisconsin’s lower crime rate leads to its lower imprisonment rate.  There is probably a certain amount of truth to both propositions.

Thus, Indiana and Wisconsin should both consider whether there are lessons that can be learned from Minnesota.  With a violent crime rate only a little lower than Wisconsin’s, Minnesota has half the rate of imprisonment.  Could Wisconsin's imprisonment rate be cut in half without any appreciable increase in its crime rate?

One potential benefit would be a decrease in corrections costs.  Wisconsin's per capita corrections costs are twice Minnesota’s.  Adding Indiana to the mix, however, creates a puzzle: Indiana’s per capita corrections costs are closer to Minnesota’s than Wisconsin’s.  Indeed, in absolute terms, even though Indiana’s prison and probation populations are both larger than Wisconsin’s, Indiana’s corrections budget is $500 million less.  This large and unexpected disparity might perhaps be due to different ways of counting the money.  Or, on the other hand, it may reflect real policy differences in the amount of money spent per offender.  If the latter, is Indiana too stingy, Wisconsin too generous, or both?

Let’s now take a look at how Indiana does with racial disparities.  Interestingly, Indiana fares much better in this regard than either of its northern neighbors.  Although it has the highest white incarceration rate of the three states, its black incarceration rate is actually much lower than Wisconsin’s.  As a result, the ratio of its black to white incarceration rates is easily the lowest at 5.5, as compared to Minnesota’s 9.1 and Wisconsin’s 10.6.  If Wisconsin could bring its black incarceration rate down to Indiana’s, the result would be a reduction in the incarcerated population of more than 6,000.

In the next post in the series, I'll consider the "racial threat" hypothesis as a potential explanation for the differences in incarceration rates. 

All of the data discussed in this post, and then some, are set forth in the table below.  Note that I used an estimate for Indiana’s 2005 prison population.  Because this number seems not to be available, I averaged Indiana’s 2004 and 2006 prison populations in order to estimate the 2005 population.

	WI	MN	IN
Population (2010)	5,686,986	5,303,925	6,483,802
Prison Population (2010)	22,019	9,429	29,818
Imprisonment Rate (2010, per 100,000)	387.2	177.8	459.9
Jail Population (2005)	14,304	7,023	17,567
Incarcerated Population (2005)	36,024	15,897	42,617
Total Incarceration Rate (2005, per 100,000)	651.7	310.1	680.1
Probation Population (2009)	47,421	121,446	130,207
Parole/Extended Supervision Population (2009)	19,344	5,453	10,527
Total Supervised Population (2005)	120,604	145,805	167,872
Supervision Rate (2005, per 100,000)	2,182	2,844	2,679
Incarcerated, as Percentage of Supervised Population (2005)	30%	11%	15%
Corrections Budget (2009, $mm)	$1,265	$521	$753
Per Capita Corrections (2009)	$233.70	$98.93	$117.23
Violent Crime (2010)	14,142	12,515	20,389
Violent Crime Rate (2010, per 100,000)	249	236	315
Property Crime (2010)	142,612	136,431	197,260
Property Crime Rate (2010, per 100,000)	2,508	2,572	3,042
Homicide (2010)	155	96	292
Homicide Rate (2010, per 100,000)	2.7	1.8	4.5
White Incarceration Rate (2005 data, per 100,000)	415	212	463
Black Incarceration Rate	4416	1937	2526
Black Incarceration Rate as Multiple of White	10.6	9.1	5.5
Juveniles in Detention (2006)	849	960	1,731
Admissions to Treatment Facilities for Drug and Alcohol Abuse (2010)	29,358	50,830	24,054

Circumvention Tourism: Traveling for Abortion, Assisted Suicide, Reproductive Technology, Female Genital Cutting, Stem Cell Treatments, and More...

This past week I was in lovely Hermance, Switzerland, as a guest of the Brocher Foundation and the International Society for Stem Cell Research's Ethics and Policy Commitee to talk to them about stem cell tourism -- travel abroad to receive treatment or be part of a clinical trial using stem cells not authorized in the patient's home country.  This is often a sub-type of what I call "circumvention medical tourism" -- medical tourism for services that are illegal in the patient's home country but legal in the destination country to which they travel.

I have just posted on SSRN a draft of my new article, Circumvention Tourism, 97 Cornell L. Rev. _ (forthcoming, 2012), which uses the real world examples of  medical tourism for abortion, assisted suicide, reproductive technology (especially surrogacy), and female genital cutting to build a bigger legal and ethical theory of circumvention tourism.

I briefly discuss the 'can' question: Assuming a domestic prohibition on access to one of these services is lawful, as a matter of international law is the home country permitted, forbidden, or mandated to extend its existing criminal prohibition extraterritorially to home country citizens who travel abroad to circumvent the home country prohibition?

Most of the Article, though, is devoted to the 'ought' question: Assuming the domestic prohibition is viewed by the home country as normatively well-grounded and lawful, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition? I show that contrary to much of the current practice, in most instances home countries should seek to extend extraterritorially to circumvention tourists their criminal prohibitions on abortion, FGC, assisted suicide, and to a lesser extent reproductive technology usage.

I then use this analysis as scaffolding to build towards a larger theory of circumvention tourism that includes examples outside of the medical context (such as prostitution, drug use, honor killings, and others)

I don't normally post drafts on SSRN until they are in page proofs (this draft is before the editors have had a chance to improve it) but am doing so early in this case because the topic is developing and I want my views to be part of the conversation. Still, it is a work-in-progress, so if you have any feedback you want to give me I always value it; though I think it makes more sense just to email me comments on the paper directly rather than post it on here so as not to clog the blog...but happy for more editorial/conversational comments to be added on here.

PS: I've already benefitted greatly from workshops of this paper at HLS, UT Austin, and by the NYU/Brooklyn Crim Law Theory Group that Dan Markel coordinates. I love workshopping papers, so if you are interested in having me present this or another paper feel free to get into contact.

Police Stops Go Up, Citizen Complaints Go Down -- What Gives?

The Milwaukee Police Department has just released some new data on traffic and subject stops.  There is a fascinating story here on policing strategy.  Since 2007, Milwaukee has experiened a dramatic increase in the number of stops: both traffic and subject stops are up close to 250%.  This has been part of a deliberate strategy to increase the number of police-citizen contacts, especially in high-crime neighborhoods.  (The MPD has also been very active over the past four years in promoting uncoerced police-citizen contacts, too.)  The objectives are to gather intelligence, disrupt criminal activity, and enhance community perceptions of safety in public spaces.  

As hoped, crime has indeed gone down considerably since 2007: violent crime is down 24%, and property crime is down 21%.  Whether and to what extent the increased-stops strategy has caused the crime drop is uncertain -- the MPD has also made some other significant changes in the past four years, and, in any event, crime has been dropping nationwide -- but the causal claim strikes me as at least facially plausible.  Providing some additional support is a month-by-month breakdown of auto theft and robbery data: in general, in months when stops have lagged, auto thefts and robberies have spiked; in months when stops have spiked, auto thefts and robberies have dropped.

But safety has a cost.  

Citizens are being stopped by the police tens of thousands more times now per year than they were in 2007.   The great majority of these stops do not result in an arrest, suggesting that most who suffer the inconvenience and embarassment of a stop are not guilty in any substantial way.  Moreover, because of the racial demographics of the high-crime neighborhoods in which stops are concentrated, African-Americans bear a greatly disproportionate share of the inconvenience and embarrassment relative to their share of the general population.

There is some risk that such racial disparities may prove counterproductive to the goal of enhancing police legitimacy and decreasing crime in the targeted neighborhoods.  (See, for instance, this post, which discusses concerns about the potential impact of racial profiling on police effectiveness.)

Yet, as far as I can tell, there has yet to be any significant backlash against the disparities or the underlying strategic choices.  In conversations and in the local media, I regularly hear complaints about the heavy-handedness of the TSA, but I almost never hear such complaints about the MPD.  Admittedly, I do not live in any of the neighborhoods most affected by the increased-stops strategy.  Yet, even in my relatively low-crime neighborhood, I can remember hearing frequent complaints about MPD racism when I first moved to the city a decade ago.

This brings us to what may be the most surprising aspect of the MPD data: despite the huge increase in the number of coercive police-citizen contacts, the number of citizen complaints is down by more than 44%.

What gives?

The cynical hypothesis would be that the MPD is doing something to discourage or impede complaints.  However, I'm not aware of any evidence of this, and, in fact, I understand that steps have been taken in recent years to facilitate complaint-filing.

Another possbility is better training and supervision of the officers in the street.  As noted above, improving police-community relations has been a major priority of the current MPD leadership, and some of that must be filtering down the ranks, which could result in greater restraint and more respectful treatment during stops.

Still another possibility is that the innocent people targeted for stops are actually willing to accept the inconvenience in view of the benefits of the MPD's strategy.  As the MPD data demonstrate, African-Americans are disproportionately victimized by crime in the city, and African-Americans are disproportionately identified as suspects.  African-Americans might thus see the increased number of stops in their neighborhoods as a rational and even reassuring response to the high rates of victimization they experience.  In turn, this positive perspective on the strategy might lead to greater tolerance of tactics that might otherwise lead to complaints.

One final possibility that I find particularly fascinating is framing effects.  The numbers are not included in the data I linked to above, but I have seen elsewhere that the number of tickets written by the MPD has stayed relatively constant, even as the number of traffic stops has increased so dramatically.  Most stopped motorists get off with a warning.   For many, this must profoundly color their emotional response to the stop (I know it would for me).  Instead of "I'm so irritated with this cop who interrupted my day because I was going a few miles per hour over the limit," the dominant feeling is "I'm so relieved that this nice cop gave me a break."  Whatever else is going on, routinely showing lenience to stopped motorists must surely contribute in some measure to public acceptance of the increased-stops strategy.  It must also help to defuse some of the anger that might otherwise lead to complaints.

Disclaimer: I serve as a member of the Milwaukee Fire and Police Commission, which is a civilian oversight agency for the police.  However, I have not had any role in the development of the increased-stops strategy.  A lengthy video of MPD Chief Ed Flynn explaining the strategy and responding to racial disparity concerns is here.

Supremes to Sort Out Harmless Error (Maybe), But Does It Matter?

I'm glad to be back for another stint on Prawfs.  Thanks to Dan for inviting me.  At the risk of not being invited back, I'll start with a post on harmless error -- a terminally unsexy topic that nonetheless is much on my mind as I prepare to teach Post-Conviction Remedies next semester.

Earlier this week, the Supreme Court agreed to hear a case that offers an opportunity to clarify a longstanding ambiguity in harmless error law.  As many scholars have observed, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.  On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

Admittedly, it requires some effort to see a difference between the standards, but I think the formulations do indeed suggest two distinct ways of performing the analysis, at least at a conceptual level.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That's because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not entirely clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.  To be sure, though, as Vasquez points out, it is not easy to reconcile this approach with the Sixth Amendment guarantee of a jury trial.

Cross posted at Life Sentences.

Another Governor Acts Against the Death Penalty. Did He Do So Justly?

I realize it's Erev Thanksgiving and so people are busy getting their yams all candied and such, but before the night closes, I just wanted to flag an article in today's NYT about the decision recently by Oregon's governor to halt all further executions, at least temporarily. Governor Kitzhaber explained his decision in the NYT but the text of the speech actually provides a fuller and more tension-replete picture.

There are lots of interesting and problematic claims about personal morality, public policy and professional identity advanced by Governor Kitzhaber. For what it's worth, when Illinois' Governor Ryan commuted the sentences of all those on death row back in 2003, I wrote a long article arguing that retributive justice concerns are advanced by decisions like Ryan's to commute death row and abolish the death penalty. I am accordingly, and unsurprisingly, heartened by Kitzhaber's decision. That said, I think his reasoning could have benefited from greater care and mindfulness about what he's prioritizing when making his decision. Does he have good reason for thinking he's acting consistently with his institutional role? Yes. Without reprising many of those arguments I've laid out elsewhere, let me just reiterate that I think he does have good reasons available to him but I think those reasons largely should have spurred him to have gone further than merely issue a temporary reprieve and a call to the legislature to revisit the issues again.

Moreover, as I've explained in my more recent work, which is at turns blandly conservative and at turns quite radical with respect to our obligations to conform to or to enforce criminal laws, I'm all in favor of officials who try to be conscientious about the workings of conscience. Consequently, I'm not at all troubled by Kitzhaber stating that he consulted "mostly [him]self" when making this decision. After all, even if you're an official within a liberal democracy, on my view, you are required to forbear from acting illiberally or in a spectacularly dumb fashion. Moreover, on this account, punishments must not flout what I take to be the animating values of retributive justice. Since, in this particular situation, the death penalty and its uneven administration are (I've argued) starkly at odds with these principles, Kitzhaber has nudged his polity in the right direction even if he hasn't quite gone far enough. 

Should the U.S. Prohibit Anonymous Sperm Donation?

In the United States, a movement urging legally prohibiting sperm-donor anonymity is rapidly gaining steam. In her forthcoming article in the Georgetown Law Journal, The New Kinship (not yet up on SSRN), and in her wonderful book, Test Tube Families, Naomi Cahn is among this movement’s most passionate and thoughtful supporters. She argues for mandatory sperm-donor registries of the type in place in Sweden, Austria, Germany, Switzerland, the Australian states of Victoria and Western Australia, the Netherlands, Norway, and, most recently, the United Kingdom and New Zealand. The UK system is typical in requiring new sperm (and egg) donors to put identifying information into a registry and providing that a donor-conceived child “is entitled to request and receive their donor’s name and last known address, once they reach the age of 18.”

In my new Article, Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, forthcoming in the same issue of the Georgetown Law Review (out in print in Jan or Feb 2012 and up on SSRN now), I explain why the arguments for these registries fail, using Cahn’s Article as my jumping off point.

I demonstrate four problems with the arguments Cahn offers for eliminating anonymous sperm donation:

(1) Her argument for harm to sperm donor and recipient parents fails in light of the availability of open-identity programs for those who want them, such that she imposes a one-size-fits-all solution where it would be better to let sperm donor and recipients parents choose for themselves.

(2) Her argument for harm to children that result from anonymous sperm donation fails for reasons relating to the Non-Identity Problem. This portion of the Article summarizes work I have done elsewhere, most in-depth in Regulating Reproduction: The Problem With Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2011) and Beyond Best Interests, 96 Minn. L. Rev. _ (forthcoming, 2012 and up on SSRN soon).

(3) She has sub silentio privileged analogies to adoption over analogies to coital reproduction. When the latter analogy is considered, her argument is weakened. I show this through a Swiftian Modest Proposal of a Misattributed-Paternity and One-Night-Stand Registry paralleling the one she defends for sperm donation.

(4) The argument may not go far enough even on its own terms in endorsing only a “passive” registry in which children have to reach out to determine if they were donor conceived, rather than an “active” registry that would reach out to them. If we recoil from such active registries, that is a reason to re-examine the reasons in favor of the less effective passive ones.

For the reasons discussed, despite my admiration for this paper and all of Cahn’s work, I am not persuaded by the argument for adopting a mandatory sperm-donor identification registry of the kind in place elsewhere in the world. Indeed, I think these registries should be eliminated, not replicated. At a moment in which the idea of these registries is rapidly gaining popularity and attention in the United States, I hope my dissenting voice will be heeded.

Status Update re: CrimProf Gathering at LSA Hawaii 2012

As I've mentioned before in this space, Carissa Hessick and I are trying to play matchmaker for crimprofs who are planning on attending the Law and Society conference in Hawaii in June 2012. If you're interested in participating but still haven't contacted us, or if you are interested and already have contacted us, then look after the jump for a status update.

Greetings everyone.

Carissa and I are pleased to say that we've now got about 30 people interested in presenting papers at LSA 2012 in Hawaii (info below) and so we should have at least seven paper panels, and possibly a couple roundtables that might emerge too.

Here's the status update:

Most of the panels have people with both overlapping subject area for papers and overlapping expertise. There are a couple other panels where everyone has overlapping expertise even if not every panelist is presenting on exactly the same sub-specialized topic.  We did our best to ensure that you would at least have good readers on your panels even if they were not writing a paper on the exact same subject. 

That said, we have a couple people who are as yet unmatched (panels require 4 papers) and we have probably one panel that might seem a little more tenuously connected than we would prefer. :-)

So, if there are any other folks who would like to present on criminal justice related issues at this conference, please let us know asap. We have some folks interested in corporate crime and crim-igration that we'd like to match up too if we could, and we might switch some of the folks around depending on our sense of best fit.

FYI, we currently have :

2 crim pro policing and punishment panels 

1 crim pro pretrial panel,

1 crim pro right to counsel

1 punishment theory

1 sex, crime and punishment

1 panel on the evolution and transformation of criminal justice institutions (the aforementioned but nonetheless interesting hodgepodge)

Accordingly: if you've not told us you're interested, we might still be able to accommodate you. Let us know asap please!

Thanks!

danny and carissa.

 

Justice Scalia and Empirical Pragmatism

The U.S. Supreme Court has discussed empirical evidence and data in many constitutional rights cases with varying results (think of Brown, Craig v. Boren, McCleskey). The use of such material in constitutional interpretation can be called empirical pragmatism. A very interesting recent case involves Justice Scalia's passionate rejection of this type of evidence.

The case is Brown v. Plata, 131 S.Ct. 1910 (2011), which upheld a broad structural injunction against the California prison system for its failure to solve severe overcrowding, and related medical care problems, for many years. In dissent, Justice Scalia wrote as follows: "...the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course, they were relying largely on their own beliefs about penology and recidivism. And of course different district judges of different policy views would have 'found' that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make 'factual findings' without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate...Yet because they have been branded 'factual findings' entitled to deferential review, the policy preferences of three District Judges now govern the operation of California prison's system." Id. at 1955.

I wonder what folks think about this argument. I find the tone to be unnecessarily dismissive, and also find irony in his ideologically based assertions that such findings are not neutral. What else could the District Judges have relied upon besides experts and data. Moreover "what occurred here" was a Court ruling that may protect the health and safety of vulnerable prisoners.

Cyber-Terror: Still Nothing to See Here

Cybersecurity is a hot policy / legal topic at the moment: the SEC recently issued guidance on cybersecurity reporting, defense contractors suffered a spear-phishing attack, the Office of the National Counterintelligence Executive issued a report on cyber-espionage, and Brazilian ISPs fell victim to DNS poisoning. (The last highlights a problem with E-PARASITE and PROTECT IP: if they inadvertently encourage Americans to use foreign DNS providers, they may worsen cybersecurity problems.) Cybersecurity is a moniker that covers a host of problems, from identity theft to denial of service attacks to theft of trade secrets. The challenges are real, and there are many of them. That's why it is disheartening to see otherwise knowledgeable experts focusing on chimerical targets.

For example, Eugene Kaspersky stated at the London Cyber Conference that "we are close, very close, to cyber terrorism. Perhaps already the criminals have sold their skills to the terrorists - and then...oh, God." FBI executive assistant director Shawn Henry said that attacks could "paralyze cities" and that "ultimately, people could die." Do these claims hold up? What, exactly, is it that cyber-terrorists are going to do? Engage in identity theft? Steal U.S. intellectual property? Those are somewhat worrisome, but where is the "terror" part? Terrorists support malevolent activities with all sorts of crimes. But that's "support," not "terror." Hysterics like Richard Clarke spout nonsense about shutting down air traffic control systems or blowing up power plants, but there is precisely zero evidence that even nation-states can do this sort of thing, let alone small, non-state actors. The "oh, God" part of Kaspersky's comment is a standard rhetorical trope in the apocalyptic discussions of cybersecurity. (I knock these down in Conundrum, coming out shortly in Minnesota Law Review.) And paralyzing a city isn't too hard: snowstorms do it routinely. The question is how likely such threats are to materialize, and whether the proposed answers (Henry thinks we should build a new, more secure Internet) make any sense.

There are at least two plausible reasons why otherwise rational people spout lurid doomsday scenarios instead of focusing on the mundane, technical, and challenging problems of networked information stores. First, and most cynically, they can make money from doing so. Kaspersky runs an Internet security company; Clarke is a cybersecurity consultant; former NSA director Mike McConnell works for a law firm that sells cybersecurity services to the government. I think there's something to this, but I'm not ready to accuse these people of being venal. I think a more likely explanation flows from Paul Ohm's Myth of the Superuser: many of these experts have seen what truly talented hackers can do, given sufficient time, resources, and information. They then extrapolate to a world where such skills are commonplace, and unrestrained by ethics, social pressures, or sheer rational actor deterrence. Combine that with the chance to peddle one's own wares, or books, to address the problems, and you get the sum of all fears. Cognitive bias matters.

The sky, though, is not falling. Melodrama won't help - in fact, it distracts us from the things we need to do: to create redundancy, to test recovery scenarios, to deploy more secure software, and to encourage a culture of testing (the classic "hacking"). We are not going to deploy a new Internet. We are not going to force everyone to get an Internet driver's license. Most cybersecurity improvements are going to be gradual and unremarkable, rather than involving Bruce Willis and an F-35. Or, to quote Frank Drebin, "Nothing to see here, please disperse!" Cross-posted at Info/Law.

A Quick Update on the Fugitives Story

Last week, I blogged about the four part series in the Chicago Tribune detailing the crisis in enforcing orders to track down fugitives. The reporters, Jackson and Marx, now have a new piece up that details Senator Dick Durbin's response to AG Eric Holder: Fix It!

According to Jackson's email to me earlier this morning, Durbin might question Holder about it during today's hearings.

 

Incendiary Speech and Social Media: An Essay

A draft of my essay, Incendiary Speech and Social Media, is now available on ssrn.  The abstract is below:

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

Constitutional Pragmatism

I am working on a long term project regarding the use of pragmatism as a method of constitutional interpretation. Perhaps Dan Farber and Richard Posner are the most well known pragmatists, but they certainly don't agree on many things. Indeed one major criticism of pragmatism is that it is vague. Another is that it amounts to nothing more than consequentialism, and thus lacks any moral component. Yet several noteworthy and disparate scholars agree that the U.S. Supreme Court's interpretive approach is best described as pragmatic, despite all of the focus in constitutional debates on originalism or on variants of living constitutionalism (though critics could argue that pragmatism is a default conclusion, in that the Court does not employ any single method in its majority opinions). What I've been examining is the types of pragmatism the Court actually uses because I believe there are many. For example, I believe constitutional pragmatism is not necessarily inconsistent with the Court taking account of ethical and/or moral considerations.

Last term, the U.S. Supreme Court decided a case in which important, but different, pragmatic arguments were on both sides. In JDB v. North Carolina, the Court ruled 5-4 that the police acted unconstitutionally in questioning a 13 year old boy without providing the Miranda warning. Authorities had removed the boy from his school classroom, and questioned him in a conference room for about 30 minutes before he confessed to a theft. Justice Sotomayor wrote the majority opinon and said that "commonsense" supported her view. She used the term several times (always as one word, despite other Justices sometimes using two words). For example, she wrote that "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis." She used empirical data and precedents to support her conclusion as well.

I call Somayor's approach "commonsense pragmatism," and the Court has used such a method (for good or bad) on many occasions. Think of "I know it when I see it." In dissent, Justice Alito criticized Sotomayor's "reality-based approach." He explained that Miranda had actually reversed the Court's prior case by case approach to determining custody, and had replaced that method with a clear and simple instruction. He then argued that Sotomayor had muddled things by requiring case by case inquiries into the situations of specific minors. I call Alito's argument "efficiency-oriented pragmatism" (other efficiency types would include administrative convenience, and slippery slope arguments). I will discuss several other types of pragmatism in future posts.

4th Annual Law and Society CrimProf Shadow Conference: Logistics and Nov. 12 deadline

The following is an email I sent out earlier on the CrimProf Listserv. 

Dear crimprof friends, 

The Law and Society conference will be taking place on June 5-8 at the Hilton Hawaiian Village, Honolulu, HI, USA. Some background and the call for papers can be found here. 

For the last few years, we have used the LSA conference as a vehicle for hosting  a series of shadow gatherings. I'm excited to announce that Prof. Carissa Hessick (ASU) and I will do our best to organize another similar event. We plan on having both paper panels and book panels. The paper panels will cover a range of subjects so that you can get people working in your area to be on your panel and to read your work in progress. Past panels have covered topics such as: substantive criminal law, crim pro (investigation); crim pro (adjudication); punishment theory; race, class, gender and criminal justice; white collar issues; privacy and criminal law; national security and policing; etc.

We will do our best to match you up with other people working relatively closely in your area 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. Not only will you get the synergy, but by participating in a paper panel, you'll receive the feedback of other panelists (since you'll circulate your draft a week in advance to the other panelists) and, concomitantly, you'll also be obligated to tender feedback to the other panelists. This is a great way to have more in-depth connections with scholars working in your area. 

In addition to conventional paper panels for works in progress, we are also open to organizing a few mini-workshops on book manuscripts that are nearly complete but still have time to make revisions post-conference before submission to the publisher.

 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're interested in an author-meets readers panel for an already published book, then you can let us know about that too, but I think we'll focus on works in progress than already published books, depending on demand.

In sum, if you're interested in participating in this shadow conference, there will be different 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  "number of participations allowed" policy.Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant. 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 won't 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're 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.

Logistics:
By Nov. 12th, 
you must send Carissa (cc'd) and me:
a) an expression of interest that tells us what you'd like to do. paper panelist? book manuscript author? if so, on what subject (send us an abstract if possible)? can you also serve as  discussant or moderator? let us know.  (Please edit the subject of your email to read: LSA 2012 Crimprof Conference)
b) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we'll assume you're indifferent to the timing and day of the panel

Shortly after Nov. 12, 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. So, Carissa and I basically serve as matchmakers and we'll have a bit of a role in interfacing with LSA's Judy Rose to make sure the panels are going to occur roughly in the same room and not in conflict with each other.

Feel free to contact me and Carissa with any questions you might have in the interim. Last, please make sure all your crim colleagues know about this information by forwarding the link to them since not all of them are necessarily readers of Prawfs or on the crimprof listserv. 

Fugitive Justice

Last week, I had the chance  to revisit some of the empirically oriented policy arguments advanced in Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book Ethan Leib and Jennifer Collins and I wrote a couple years ago. I've been meaning to find some time to write up those those thoughts and the reactions they generated at NYU's Goldstock Criminal Justice luncheon series, but I haven't yet succeeded.  But on the subject of criminal justice and the family more generally, I wanted to point your attention to a really cool series of articles on fugitives that is appearing this week in the Chicago Tribune by Pulitizer-winner David Jackson and Gary Marx.

One of the most interesting things we discussed in our book, and which Jackson and Marx used to great effect in their reporting, is the fact that in about 14 states (including Illinois), harboring or aiding fugitives is not a crime if the fugitive is a close family member. (In four other states, it's downgraded from felony to misdemeanor.) Pointing to the costs of this policy, from a criminal justice perspective, is not easy. But this recent story by Jackson and Marx is able to give at least a decent picture of the human dimensions of this conflict between family loyalty and criminal justice. You can read more of their important work on the failures of pretrial release and fugitives over here. 

Mississippi's Personhood Amendment

The NY Times has just run this op-ed I authored (along with Jonathan Wills) on Mississippi's proposed Personhood Amendment 26, which is up for a vote on November 8. Here is the initiative's official description:

Initiative #26 would amend the Mississippi Constitution to define the word 'person' or 'persons', as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

Jonathan and I argue in the op-ed that whether one is pro-life or pro-choice, the amendment is a bad idea because it is ambiguous in two key ways: (1) that "fertilization" could mean anything from the moment sperm penetrates egg to the moment the fertilize egg implants in the uterus (or does not, in the case of IVF embryos that are not used), thus it is unclear whether it sweeps in some forms of birth control, IVF embryo discard, and stem cell derivation along with abortion. (2) It is unclear whether the Amendment is self-executing and thus updates the criminal code among other pieces of law, or whether it instead would require legislative action to do so piece-by-piece. We argue that without a clear amendment, Mississipians can't know what they are voting for. Moreover, if courts are inclined to read the ambiguities in a way to avoid raising federal constitutional questions, even pro-life groups hoping to offer the courts an opportunity to revisit Roe may not get what they want with an ambiguous amendment.

I will have more to say about this Amendment during my blogging stint this month, but I just want to make one observation based on my experience in a public debate in Mississippi that I participated in.

Here I should make clear I am speaking only for myself, and not Jonathan:

During the debate, it felt a good deal like the pro-life groups seemed to want to have it both ways on the self-executing question when I pushed them on this during the debate. If it is not self-executing, if it just a statement of "policy" or "principle" without legal effect, it is unclear why they are pushing this amendment so hard politically and financially. They accused me of “fear mongering,” and I am too close to this to be objective on the issue, but I do harbor this fear I want to share (if not "monger"): I fear some groups are pushing an ambiguous amendment they hope they can slip by Mississippi voters by protesting against its likely implications as to IVF and abortion, only then to press the courts to rely on the amendment as having altered criminal other laws in the state once it is in effect, impacting  a good deal of reproductive practices. I am not trying to cast aspersions on the views of those supporting this amendment. I am sure their motivations are complex, heterogenous, and in some cases overdetermined. I think abortion is actually a hard question from a bioethics perspective, and understand where disagreements on the subject come from. But I found the positions they took on the self-executing question downright peculiar, and I have yet to hear a straight answer from supporters of the law that they do not think it self-executing. Until they publicly take that stand, I will continue pressing (if not "mongering") this fear.

 

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

If you are in or about New York City on November 4, please consider attending The Retributivist Tradition And Its Future at St. John's University School of Law. The conference will take up many of the chapters in Retributivism: Essays on Theory and Policy (Mark D. White, ed., 2011). My own contribution to the conference will have to do with an essay I wrote called, What Might Retributive Justice Be?

The conference description follows and the program is after the jump.  Hope you can make it. 

Retributivism as a justification of punishment is a very old idea, with sources in ancient codes of religious law and morality. After a period of dormancy in the 20th century, retributivism is now ascendant again as a theory of punishment, as scholars have reinterpreted the commitment to just desert in novel and provocative ways.

This conference, The Retributivist Tradition and Its Future, brings together leading thinkers in punishment theory to reflect on retributivism's past and present, with an eye toward what retributivism and punishment theory generally might become. Many of the speakers are also contributors to the recently published volume, Retributivism: Essays on Theory and Policy (Mark D. White, ed., OUP 2011), which will also be considered at the conference.

8:30-9:00         Registration/Breakfast

9:00-9:15         Welcome: Dean Michael Simons (St. John’s University School of Law)

9:15-10:45       Panel I: Conceptualizing Retributivism

    Panelists: Michael Cahill (Brooklyn Law School)

    Dan Markel (Florida State University School of Law)

    Kyron Huigens (Cardozo Law School)

    Discussant: Youngjae Lee (Fordham University School of Law)

     Moderator: Matt Lister (Villanova Law School)

10:45-11:00     Break

11:00-12:30     Panel II: Philosophical Perspectives on Retributivism

    Panelists: Sarah Holtman (University of Minnesota, Philosophy)

    Jane Johnson (Macquarie University, Philosophy)

    Mark White (CUNY, Political Science, Economics, Philosophy)

    Discussant: Ekow Yankah (Cardozo Law School)

    Moderator: Larry Cunningham (St. John’s University School of Law)

 12:30-1:30       Lunch

 1:30-3:00         Panel III: Retributivism and Policy

     Panelists: Mark Tunick (Florida Atlantic University, Political Science)

    Luis Chiesa (Pace Law School)

    Marc DeGirolami (St. John’s University School of Law)

    Discussant: Adil Haque (Rutgers School of Law – Newark)

    Moderator: Elaine Chiu (St. John’s University School of Law)

 

The Myth of Cyberterror

UPI's article on cyberterrorism helpfully states the obvious: there's no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It's all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that's a far cry from train bombings or shootings in hotels. 

The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet's core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don't require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)

Why, then, the continued focus on cyberterror? I think there are four reasons. First, terror is the policy issue of the moment: connecting to it both focuses people's attention and draws funding. Second, we're in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown. Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category). Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.

So what should we do at this point? For cyberterror, the answer is "nothing," or at least nothing that we wouldn't do anyway. Preventing cyberattacks by terrorists, nation states, and spies all involve the same things, as I argue in Conundrum. But: this approach gets called "naive" with some regularity, so I'd be interested in your take...

Courts-Martial for Contractors: U.S. v. Ali and the Path to the Supreme Court

A couple of years ago, I blogged about a habeas petition seeking collaterally to bar the trial by court-martial of a civilian contractor for his alleged role in destroying by arson a Predator drone in Iraq. The government dropped that case, and so the habeas petition went away...

But the underlying issue--the constitutionality of a 2006 amendment to the Uniform Code of Military Justice that authorizes the trial by court-martial of "persons serving with or accompanying an armed force in the field" during a "contingency operation" (in addition to the preexisting jurisdiction during "a time of declared war")--is back again, thanks to the federal government's trial by court-martial of Alaa Mohammad Ali (a civilian contractor) for offenses committed in Iraq. Ali pled guilty while preserving his right to appeal of the constitutionality of the military's assertion of jurisdiction. In July, the Army Court of Criminal Appeals (ACCA) affirmed, resting on the conclusion that:

[W]e can discern no manner in which the exercise of military jurisdiction over a non-U.S. citizen who knowingly accepted employment supporting U.S. forces in a combat zone during a declared contingency operation would be fundamentally hostile to either military or civilian due process, nor have we found any Supreme Court precedent that specifically precludes the exercise of such jurisdiction.

My own view is that the ACCA's opinion is dancing on the head of a series of pins given the Supreme Court's near-total repudiation of military jurisdiction over non-servicemembers in a host of decisions culminating with the January 18, 1960 trilogy--Kinsella v. United States ex rel. Singleton, Grisham v. Hagen, and McElroy v. United States ex rel. Guagliardo. That doesn't mean, of course, that this Supreme Court will feel the same way; only that I suspect this case is headed that way, and in a hurry...

Of course, the Court of Appeals for the Armed Forces would have to grant review first, since the Supreme Court lacks certiorari jurisdiction over the military courts in cases in which CAAF denies review, but one constitutional problem at a time!

Greetings.

I'm grateful to Dan Markel for inviting me to be an October guest blogger on PrawsBlawg. I am primarily interested in talking about my new book, BREAKING THE DEVIL'S PACT (NYU Press 2011), but your responses and breaking news may well take me in other directions as well.

Breaking the Devil's Pact is a case study of DOJ's effort, by means of Civil RICO, to purge the International Brotherhood of Teamsters (IBT) of organized crime's presence and influence in the union. U.S. Attorney Rudy Giuliani brought the lawsuit in 1988 against the president (Jackie Presser) and general executive board (GEB) memberts of the IBT and some two dozen Cosa Nostra bosses. The complaint alleged a "devil's pact" between the union and organized crime defendants to exploit the union and its pension and welfare funds and to violate the rights of rank and file members. The massive complaint cited scores of past criminal prosecutions for theft, embezzlement, fraud and violence. None of these allegations came as a shock.

Labor racketeering in the IBT had been notorious for decades. Indeed, in 1957 the AFL-CIO expelled the IBT from the labor federation on account of corruption and racketeering. However, there was no positive change in the next 30 years. In 1986, the President's Commission on Organized Crime (PCOC) called the Teamsters (then the nation's most populous labor union) the most "mobbed-up" union in the country and called for a civil RICO lawsuit to impose court monitorship.

You'll recall that in 1988, Ronald Reagan was president. You may not recall that the IBT was the only major labor union that had endorsed his presidential candidacy (twice). Shortly before the lawsuit was filed, 300 members of Congress delivered a petition to Attorney Gneral Meese, exhorting the DOJ not to file the rumored civil RICO lawsuit because it would be harmful to a "free and independent labor movement." (How's that for cynicism?) All the candidates, Democrats and Republicans, except George H.W. Bush, promised not to file the lawsuit. Nevertheless, the DOJ (via Giuliani) did file it, an impressive statement about DOJ's political independence at that time.

U.S. v. IBT was settled in 1989 on the eve of trial. The consent decree stated that there should be no organized crime presence in the union, that association with organized crime would constitute a disciplinary offense, that for the next 5 IBT elections, the president and GEB members would be selected via one person one vote secret balloting by the rank and file supervised by a court appointed elections officer, and that the IBT disciplinary machinery would be wielded by court appointed investigators and adjudicators. The lawsuit in its remedial phase is now in its 22nd year, with no end in sight. The disciplinary prong of the remediation has expelled 500 IBT officers, including some of the most powerful figures in the union. The election prong has produced the most democratic union elections in American history. I argue that by any standard of assessment, U.S. v. IBT must be regarded as one of, if not, the most important organized crime case in American history. A case could also be made that it is the most important labor litigation of the last 50 years. Nevertheless, it has attracted little if any attention from criminal law or labor law scholars. Students are likely to finish a course in federal criminal law without having heard about the case. Similarly, labor law casebook authors apparently do not see it worthy of much, if any attention. Perhaps you have some thoughts about why this is the case?

James B. Jacobs
NYU School of Law

 

Isn't there an actus reus problem with the prior pot arrest policy in NYC?

The other day, the NYT reported that the NYPD was going to stop arresting individuals who had a small amount of pot on their persons, pot that became apparent during a stop and frisk:

Just over 50,000 people were arrested on marijuana possession charges last year, a vast majority of them members of minorities and male. Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

The important background here is that NY a while back decriminalized private pot possession but permitted arrests and prosecution for public use of pot. To my mind, this change in policy by Commish Kelly is a massive improvement.  Today's editorial page lauds the change and also invites more scrutiny.

Ok, here's some scrutiny.

Not knowing if this argument has been made before, I want to suggest that, from the perspective of conventional criminal law principles, there's a deep actus reus problem afflicting all those arrests made prior to the new memo. 

In the casebook I use for crim law (Dressler), one that is widely used, we begin the semester discussing, among other things, the need for an actus reus (sometimes translated as bad act), which is a voluntary or willed act. The actus reus requirement exists for most crimes; the exception is omissions liability, a point that is irrelevant here.  Crimprofs typically teach this principle through a cased called Martin v. State, 31 Ala.App. 334 (1944). In Martin, the defendant had been convicted for being "drunk on a public highway." The problem is he was drunk in his home and then taken to a public street by cops, where he acted boisterously. The appellate court reversed the lower court's conviction of Martin and noted that there had to be a "voluntary appearance" in public in order for the conviction to stand.

Now, if NY follows this canonical rule, it would seem that not only were the arrests bad policy, but also illegal for being contrary to the actus reus principle. The only way I could see one slicing the actus reus baloney more thinly (in defense of the legality of the arrests) is to say that the mere act of bringing and possessing pot into a public space is the sufficiently voluntary act. But it strikes me that this is an implausible understanding of what it means to possess or use pot in public view.  (Put aside the X-ray glasses, Superman.) If persons take precautions to obscure the pot from public view and are not using it in public, then that should end the inquiry; the fact that, pursuant to a stop-and-frisk, they extract the pot from their pockets and place it in public view is not sufficient to satisfy the voluntary act requirement because they only do so at the behest of the frisker. True, the stopped persons are not having a spasm or seizure when they extract the pot from their pocket, but the conditions are such that it would be mistaken to think that the actus reus requirement is satisfied in any meaningful way when the cops are telling you to empty your pockets.  That's my sense at least. Am I wrong?

P.S. Orin has a very sharp reaction to this news from the perspective of criminal procedure. Check it out.

Weekend reading in criminal justice and an idea for other areas

My crim law friends at Rutgers have embarked on a very neat new project that I hope will be replicated across fields so as to address the vanishing book review problem.  Here's the announcement:

We are delighted to announce the launch of our new free website, Criminal Law and Criminal Justice Books, which features high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice. 

The website can be found at: clcjbooks.rutgers.edu 

Please peruse it at your convenience.  We welcome your comments and suggestions.  Please subscribe to the site to receive notice of all new postings, and feel free to forward the link to anyone you think would be interested. Our hope is that, before long, CLCJ Books will become an indispensable resource for scholars, students, and others interested in the field. 

With all best wishes,
Jim Finckenauer and Stuart Green 

Co-editors of Criminal Law and Criminal Justice Books

Check out in particular George Thomas' review of Brandon Garrett's new book and Adil Haque's review of the volume on Retributivism (and don't forget about the upcoming conference tied to that book at St. John's.)

Retributive Justice and the Demands of Democratic Citizenship

As some of you may know, I've been preoccupied the last 9 months or so on a big project called Retributive Justice and the Demands of Democratic Citizenship. I've thrilled to say that I've finally uploaded a draft of it to SSRN. You can download it here. The piece represents my early efforts at thinking through some of the relationships between political obligation and decisions regarding crime and punishment. In particular, I try to argue, contra crim law gurus like Doug Husak and Michael Moore, why it is that appropriately scaled punishment may, under the right conditions, be justly imposed on offenders for crimes involving conduct that is itself morally neutral (prior to or independent of law). If I'm right about that claim, then the underlying arguments also generate a raft of unusual implications, some of which are detailed in the abstract.

Sadly, the piece is long. Still, if you plod through it, I would be very grateful for comments as my hope is to turn this (and some other) material into a book tentatively entitled Rethinking Retributive Justice. The abstract and some more background about the piece appear after the jump. 

This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective. 

If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status. 

Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.

By way of background, the paper was the invited "launch" paper of a new journal devoted to criminal justice issues at UVA's law school, the Virginia Journal of Criminal Law. I am very grateful to Darryl Brown and the student editors of that journal for making possible the chance to come to Charlottesville to begin a dialogue with some of my favorite voices in criminal law theory: Josh Bowers, Michael Cahill and Antony Duff. When the first issue comes out, it will comprise my paper, the response essays by Bowers, Cahill and Duff, as well as a reply essay by me whose final touches I'm currently procrastinating via this blog post. While this project has been difficult for me at times to work though, I confess it's been a delight to have the opportunity for this conversation in criminal law theory to unfold both in person and in print.

Does the federal government prevent terrorist plots or invent them?

N.B. The following post is from Petra Bartosiewicz.

Hello everyone! Dan introduced me as one of your guest September bloggers. I’m happy to be with you. I’m a freelance journalist and have been covering the domestic front of the war on terrorism for the past couple of years, with a particular focus on federal terrorism prosecutions. I’m working on a book on the subject, “The Best Terrorists We Could Find,” to be published by Nation Books. 

In addition to highlighting some of the 9/11 anniversary coverage in the media this month, I’ll be blogging about the investigation and prosecution of terrorism cases in the Article III courts over the past decade. Please feel free to weigh in on any of my posts!

Since 9/11 the U.S. has prosecuted over 1,000 individuals on terrorism-related charges. Mostly these have been fairly low-level cases involving immigration violations, such as lying on a visa application, or denying knowing someone who is on a terrorist watch list. But the government’s highest profile cases – involving groups like the Miami Seven, or the Fort Dix Six, or the Newburgh Four – follow the FBI’s strategy of trying tocatch the terrorists before they next strike. The result of this has been a series of preemptive sting operations, most of them against individuals with no history of terrorism or violence, wherein agents ensnare would-be terrorists by inducing them to participate in make-believe Islamic terrorist conspiracies invented by undercover agents who invent criminal plots, furnish weapons, and deploy paid informants to the federally suggested plot.

These prosecutions against people who seem to act only at the suggestion of the government itself suggests an obvious question:  Is the government preventing terrorism or inventing it?

Defense attorneys in many of these cases have argued their clients have been entrapped. This defense has not yet been successful in a post-9/11 terrorism case. One of the first cases I covered in 2005 involved a claim of entrapment. The defendant, a British businessman named Hemant Lakhani, had been approached by an FBI informant and asked to procure a stinger missile that he was told was intended for a terrorist group. To his discredit, Lakhani, who had once assisted on a legal arms deal involving armored personnel carries, said yes. But despite his best efforts he turned out not to be capable of illegally procuring the weapon. So after a year of trying, the FBI grew impatient, and partnered up with Russian law enforcement agents, who posed as the fictitious sellers of the missiles.

 

At trial Lakhani’s attorneys argued that with law enforcement on both sides of the deal, as both the fictitious buyers and sellers, Lakhani had been entrapped. The jury disagreed and found Lakhani guilty. He was sentenced to 47 years in prison. (For more on Lakhani’s case, here’s a link to a radio piece I did on the case for the program This American Life). I mention Lakhani here because his case follows a template for high-profile terrorism prosecutions over the past decade. Although Lakhani proved himself to be willing to engage in a criminal scheme, he possessed neither the extremist ideology nor the logistical capabilities of an actual terrorist. So should the government have expended multiple years of resources to bring him down?

 

My take on these preemptive style cases is summarized in a recent article I wrote for the August 2011 issue of Harper’s Magazine, “To Catch a Terrorist: The FBI’s Hunt for the Enemy Within.” (Full text here) The article tells the story of a terrorism case in Albany, New York involving two Muslim immigrants, men with no prior criminal records and no history of violence. In 2005 the pair became the focus of an FBI informant who engaged them in what later was alleged to be a money laundering scheme designed to hide the proceeds of the illegal sale of a missile destined for a terrorism group. But the missile turned out to be fake and the terror plot a story concocted by the FBI, and it’s not entirely clear the two defendants knew they were engaged in money laundering, let alone terrorism.

 

No Refusal Checkpoints

Up until the end June, I had been in England for two years. As I was sitting on the couch catching up on my television watching, I noticed a string of commercials warning about an upcoming "no refusal" weekend (which have apparently been going on for some time). On doing a little research, I found out this meant that if you refused a breathalyzer test at a police checkpoint, a judge on hand would issue a warrant for a blood test to determine your blood alcohol content. So I got to thinking, how is this constitutional?

I know of two constitutional cases relevant to this discussion: Michigan State Police v. Sitz, which upheld random checkpoints for the purposes of detecting drunk driving, and Schmerber v. California, which upheld blood tests for those suspected of drunk driving. But in order to make an arrest at a checkpoint in Sitz, police officers still needed probable cause. Likewise, in Schmerber, the blood test was permissible only because there was probable cause to suspect the defendant had been driving under the influence.

If a judge at a no refusal checkpoint orders a blood test, however, it is clear that he is doing so without probable cause to suspect the driver is under the influence, because if there were probable cause, the police officers wouldn't need the judge at all. This leaves two alternatives. Either the judge issues the warrant without probable cause, or the judge finds probable cause somewhere else. But that somewhere else can only be the exercise of a constitutionally protected right (whether we want to call it a Fourth Amendment right against unreasonable searches and seizures or a Fifth Amendment Right against self-incrimination), and surely the exercise of a constitutional right cannot be a sufficient condition for a judge to find probable cause.

Maybe courts will accept the above analysis but find a substantial government interest in preventing drunk driving. But I don't see why states have a lesser interest in, say, waging the war on drugs, with the result that a refusal to consent the search of one's home would also provide probable cause for that same search.

Naturally, I accept that drunk driving is a serious problem worthy of the government's time. But I don't agree that the method some states follow to prevent drunk driving--predicating probable cause on the exercise of a constitutional right--is a legitimate way to combat that problem. Still, I'm willing to admit that this is not my area of expertise, so I welcome comments from those more knowedgeable than I.

Fall Schedule for Criminal Law Theory Colloquium at NYU and BLS

For those of you writing in criminal law theory/philosophy of crime and punishment, you might be interested in the information that I just circulated BELOW via email. Let me know if you want to be on the email list for future updates and paper drafts.

 

Folks,

Mike and I just wanted to let you know of the upcoming schedule for the Fall 2011 Criminal Law Theory Colloquium. Also, Mike's paper is attached, which is short and provocative. Kyron Huigens' paper will be circulated soon.

A. Dates/Places, etc.

1) Tues August 30th (next week!) 6pm-830 at Brooklyn Law School.  BLS, located at 250 Joralemon St. in Brooklyn, will provide snacks and drinks during the get together, and then will also generously host us for dinner at a nearby place. Mike Cahill will provide more info on logistics. If you can, please RSVP to me and Mike so we can make a rough headcount for the reservation.

We will have papers by Mike Cahill and Kyron Huigens. Mike's paper is attached and it includes a cover note. Kyron's is forthcoming... 

Papers by: Mike Cahill (BLS) and Kyron Huigens (Cardozo)

2) Thurs September 15th 3-530pm at NYU (as a warmup to the wonderful conference on Vice and Crime that Stuart Green and friends at Rutgers Newark are hosting on Sept. 16, and to which all on this list are invited. More info from Stuart is available at the link. We will go from our gathering to the  dinner for the Vice-Fest. Please let me or Stuart know if you're interested in joining for the dinner and travelling with us from NYU.

Papers by: Glenn Cohen (Harvard) and Dan Markel (FSU)

3) Tues Oct 25th at 3-530pm at NYU (as a precursor to the Hoffinger dinner at NYU featuring Brandon Garrett)

Papers by: Kim Ferzan (Rutgers/NYU) and Chad Flanders (SLU)

4) Thurs Nov. 3 at 3-530pm at NYU (as a precursor to the "The Retributivist Tradition and Its Future" conference at St. John's Law on Friday Nov. 4 to which all on this list are invited to attend; if you're interested in attending that conference, please also contact Marc DeGirolami at St. John's (cc'd)). 

Papers by: David Gray (UMaryland) and Adil Haque (Rutgers)

5) Spring 2012:

We have set out the following dates and times for our spring gatherings, which are all timed to precede the NYU Hoffinger dinners. We have not confirmed everything yet but we will have a stellar lineup for the spring including Vera Bergelson (Rutgers), Alon Harel (BU/Hebrew U), Matt Kramer (Cambridge), Stephanos Bibas (Penn) and Rick Bierschbach (Cardozo), and some newer voices too. Stay tuned and mark your calendar. Unless we indicate otherwise, except for the first meeting this August, we'll be meeting at NYU.

Monday, January 23, 3-530pm

Tues, Feb 28, 3-530pm
Monday, March 26, 3-530pm
Monday, April 23, 3-530pm

B. Papers

We plan on keeping to the two papers per session routine. As mentioned in earlier emails, we're doing something different also to open things up a bit and make this a bit more of a national (or at least regional) crim theory colloquium. There are a number of you who cannot regularly attend the colloquium b/c of teaching conflicts or geographic constraints. Those presenting who are not able to make it to each of the meetings during the semester are expected to provide timely and written comments to the other persons who are presenting during the semester (and preferably the year if you are able to). 

Drafts will be circulated 7-10 days before the gathering in a Word Doc, and then we'll share it with the list, and those of you who can show up in NYC will be treated to the finest company and coffee/cookies/fruit available.

Now that we're opening it up a bit more, please feel free to send this information to other colleagues or friends in crim law theory that might be interested in participating.

C. Opt-Out 

Last: if you'd like to be taken off this email list, just let me know. And if there's someone who you think should be added to this list, please let me know also.

best wishes,

Danny and Mike.

 

The Retributivist Tradition...and its Future: A Conference on Friday Nov. 4, 2011

Please mark your calendars for this exciting conference of which  I'm thrilled to be a part. If you're interested in attending please let me or Marc DeGirolami (St. John's Law) know.

The Retributivist Tradition and Its Future

A Conference Considering:

Retributivism: Essays on Theory and Policy (Mark D. White ed. 2011)

St. John’s University School of Law 

Friday, November 4

8:30-9:00        Registration/Breakfast

9:00-9:15                    Welcome

9:15-10:45      Panel I: Conceptualizing Retributivism

Panelists: R.A. Duff (University of Stirling, Philosophy)

Michael Cahill (Brooklyn Law School)

Dan Markel (Florida State University School of Law)

Discussant: Youngjae Lee (Fordham University School of Law) 

10:45-11:00    Break

11:00-12:30    Panel II: Philosophical Perspectives on Retributivism

Panelists: Sarah Holtman (University of Minnesota, Philosophy)

Jane Johnson (Macquarie University, Philosophy)

Mark White (CUNY, Political Science, Economics, Philosophy)

                        Discussant: Ekow Yankah (Cardozo Law School)

12:30-1:30      Lunch 

1:30-3:00        Panel III: Retributivism and Policy

Panelists: Mark Tunick (Florida Atlantic University, Political Science)

Marc DeGirolami (St. John’s University School of Law)

Thom Brooks (Newcastle University, Philosophy)

                        Discussant: Adil Haque (Rutgers School of Law – Newark)

                        Moderator: Elaine Chiu (St. John’s University School of Law)

 

Should Prisons Run on a Voucher System?

A few weeks ago I had the chance to read Sasha Volokh's interesting papers concerning prisons and innovation. The paper I want to discuss briefly in this post is his paper on Prison Vouchers forthcoming in the U. Pa. L. Review.

Sasha offers us a nearly perfectly executed thought experiment paper centered on the idea: what if prisons were run on a voucher system? It's such a quirky and seemingly off-the-wall idea. But he does what good academics should do: he unsettles our intuitions and takes creative arguments out for a walk.  

Notwithstanding my admiration for the paper, I had a few random thoughts/reactions that I shared with Sasha and he permitted/endorsed my sharing these reactions more broadly. So what follows threatens to make sense only after one reads his actual paper!

First, though prison vouchers and prison privatization are not the same thing, I thought the paper might engage more of the critics of prison privatization because I sense that they would register similar concerns.  So, I could imagine there being more discussion of the non-instrumental critiques made by folks like Mary Sigler & Michael Walzer, and to some degree Sharon Dolovich.  Perhaps surprisingly to some (b/c I'm a retributivist), I have written in qualified defense of the careful use of private prisons (see the last 30 pages or so of my 2001 piece).  

Second, along those lines, I found the discussion of retributivism in the piece a bit on the crude side. That's because I think Sasha is guilty here of equating retributivism with the philosophy of MORE (offender suffering), and that might in fact be what some political figures or lay persons believe themselves or believe that's what retributivism amounts to, but there is now a long tradition of academic theorists who identify as retributivists and see retributive justice as an essentially humanitarian corrective to the teeming and squalid pestholes of prisons. I count myself as one of those. Chad Flanders and David Gray are others who have written recently on retributivism as a progressive force for criminal justice reform. So, Sasha could probably avoid alienating readers like me (on this overall relatively small point) simply by dropping a footnote or sentence in the text that indicates that his usage of retribution is really more related to a populist vengeance theory, and then cite some dumb politician who embodies the MORE school of punishment. 

One other point, somewhat related. I've often described retributive punishment as a coercive condemnatory deprivation, and in so doing, rejected the suggestion that offenders should get to choose say, between shaming punishments, and a period of incarceration, on the idea that prisoner preferences are of little to no normative significance. To the extent this derogation of prisoner choice matters to the punishment's social meaning, Sasha deftly avoids that problem by arguing that the prisoner's choice can be simply instrumental toward goals extrinsic to respecting the offender's autonomy. That was a nifty argument.

In the conclusion Sasha worries that prison vouchers will reduce the deterrent effect of prisons. The truth is that this concern is ultimately quite speculative; indeed if the work of folks like Tom Tyler or Robinson and Darley is correct, then the possible reduction in  marginal deterrent value attributed to prison vouchers is likely to be negligible.  I realize this skepticism toward the achievement of marginal deterrence might be heresy to some economists interested in punishment design but if one were in fact sensitive to the facts and not just incentive theories, and if marginal deterrence is incredibly difficult to achieve let alone measure (as some credibly believe), then there's less reason to be concerned about the costs to deterrence of this plan.

 

This is the last point: it's commendable of Sasha that he's basically running the thought experiment and expressing ambivalence and caution in the conclusion, but some parts of the article seem less ambivalent. If the paper is really intended to be less than full-throated support for the thought experiment at its core, then perhaps the best signal is to slightly adjust the title to: "Prison Vouchers?"

Sundry: SEALS, scholarship updates, and the writer's studio

The annual SEALS conference is coming up next week, which I'll be excitedly attending. Our crew will be staying next door to the Marriott at the Palmetto Dunes--so please message me if you're there and want to celebrate Benben's 2d bday on the 29th.  Notwithstanding the happy hour the night before, the (sincere!) motivation for the trip is a panel I'll be doing with Larry Solum, Usha Rodriguez, and Dave Fagundes on the question(s) of: (How) Can Blogging Build Community in the Legal Academy? I think blogs like ours (particularly Bodie's wonderful book club series) have done some great things toward cultivating community (at least defined in some ways), but Usha is right to ask her readers what else can be done. So...as a new school year awaits in the shadows, I thought I'd ask for readers of this blog to share thoughts they might have (either via email or in the comments) about what more Prawfs can do to build a warm and engaged community in the legal academy. After all, I'll need something to talk about on the 29th at 10:15am!

While I'm typing on the intertubes, let me take this moment to conclude my recent short series of posts with updates on what I've been working on. Mercifully, this will be the last of the batch for a while. 

First, the other day I put up on SSRN the final version of a chapter entitled What Might Retributive Justice Be?, which appears in the recently published volume, Retributivism: Essays on Theory and Practice (edited by Mark D. White).  As the piece is, for me, relatively short, it's worth mentioning that this chapter might be somewhat helpful as an introduction/overview of contemporary retributive justice theory for those (1) less familiar with punishment theory and (2) tasked with teaching (or studying) criminal law or sentencing law in the coming year. By the way, there will be a conference at St. John's Law in NYC on Friday Nov. 4th devoted to discussing the chapters and themes in the volume. If you're interested in attending, let me  or Marc DeGirolami know. 

Second, thanks to a teaching leave made possible by the good folks at the Searle foundation and FSU, I've spent much of the last five months working on a piece trying to connect the literature on political obligation (ie., is there a moral duty to obey the law) to criminalization and punishment theory. The resulting marriage is a paper entitled Retributive Justice and the Demands of Democratic Citizenship. Not sure why, but I'm still holding this one back from SSRN right now. Nonetheless, it's now in a sufficiently complete draft(!) form that I'd be happy to share it with any folks who want a sneak preview and a chance to help me avoid various errors.  

Third, I've also just put up a short essay (entitled A Judge for Justice) on related themes of disagreement, deference, and democracy in the context of crime and punishment (and in particular shaming punishments). By looking at the somewhat famous Gementera case carefully, the piece is intended as an homage to my former boss, Judge Michael Hawkins on the Ninth Circuit, who transitioned to senior status recently. To mark that transition, the editors at the ASU LJ convened a celebration/symposium earlier this year with some of his former clerks who are now prawfs; accordingly, the issue in Volume 43 with my essay also includes thoughtful reflections on Judge Hawkins' jurisprudence from Profs. Lenni Benson,  Thomas Healy, and Carlton Larson.

I was going to include something about our new "writer's studio" at FSU in this post, but I'll save that for a separate post, as this one has probably gone on long enough. More later. Happy Thursday.

An Update (Part 1)

I've finally had a few hours to clear some stuff off my plate, and that includes updating some drafts on SSRN. I'll do a few of these self-promotion information-dissemination posts over the next week or so. The first thing I'll report is that there's now a final version of a couple papers having to do with punishment theory and the subjectivity debate up there. I'll put the abstract of the more recent of the papers below the jump after a little background on a funny and trivial matter.

The first one, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice , came out last summer or fall, can't remember. Anyway, and oddly, the good folks at the law review wouldn't allow my co-author (Chad Flanders) and I to include a Table of Contents and Abstract in the published version because at the time, they had a policy of no abstracts or TOC's. We were kind of upset about this as it seemed like a ridiculous policy to have in the first instance--who doesn't love a good TOC and abstract? Moreover, we had submitted our piece with a TOC and abstract (and were not told at acceptance that we'd have to jettison it).  It was even weirder, we thought, for them to not budge, even though they acknowledged it was a silly rule, on the grounds that others were stuck with that rule in the volume, and so, we should be stuck with it too.  (Not sure how many complained though...) Anyway, after publication, one of the editors there was nice enough to format a TOC and abstract that we had written, and the version that's up on SSRN now has the published version following that TOC and abstract. Phew. 

To our delight, a few of our interlocutors in that project (Professors Bronsteen, Buccafusco & Masur) wrote a response to our article, and we wrote a reply (inviting along David Gray from UMaryland, with whom we had a shared interest on the merits of this debate). Our essay, Beyond Experience: Getting Retributive Justice Right, which is now up on SSRN, appeared in a new volume of the law review, and I guess because folks boortched about it previously, the editors of the new volume allowed and even encouraged TOC's and abstracts. Mirabile dictu.

Here's the abstract for "Beyond Experience: Getting Retributive Justice Right," the final version of which is now on SSRN.

How central should hedonic adaptation be to the establishment of sentencing policy? 

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment. 

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone. 

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain unpersuaded by their conceptual and normative responses. We also use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment. 

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886 

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600 

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

Feedback loops - applications?

A recent Wired article "Harnessing the Power of Feedback Loops" tells the story of how such mechanisms can be used in a variety of ways to affect human behavior - to essentially get us to 'do the right thing'. Here's an explanation of how they work from the article:

A feedback loop involves four distinct stages. First comes the data: A behavior must be measured, captured, and stored. This is the evidence stage. Second, the information must be relayed to the individual, not in the raw-data form in which it was captured but in a context that makes it emotionally resonant. This is the relevance stage. But even compelling information is useless if we don’t know what to make of it, so we need a third stage: consequence. The information must illuminate one or more paths ahead. And finally, the fourth stage: action. There must be a clear moment when the individual can recalibrate a behavior, make a choice, and act. Then that action is measured, and the feedback loop can run once more, every action stimulating new behaviors that inch us closer to our goals.

A number of examples are provided, the most prominent being feedback loop signs that tell you how fast you're driving next to the posted speed limit. This reminds me of theories of athletic coaching that I've read about - how good coaches use low-key constant correction advice to get their players to change their performance in real time (or close to it). Apparently, now is the time for feedback loop devices as a public policy method, as the costs of one of the primary means of providing feedback loops - sensor technology - continues to sink.

While not all feedback loop applications require sensors, the rise of such technology should perhaps give us pause to consider how such mechanisms might be used in a wide number of settings. For instance, can it be used effectively in teaching (perhaps, not too different from coaching)? I occasinally use real time quizzes via powerpoint, but I never really thought of it as a feedback loop although I imgaine that there are similarities.

But, what about legal applications? Can we use it for more than just speeding? Will such mechanisms make us more likely to obey the law? Why do they work in the first place? Well, here's what the article said on that point:

So feedback loops work. Why? Why does putting our own data in front of us somehow compel us to act? In part, it’s that feedback taps into something core to the human experience, even to our biological origins. Like any organism, humans are self-regulating creatures, with a multitude of systems working to achieve homeostasis. Evolution itself, after all, is a feedback loop, albeit one so elongated as to be imperceptible by an individual. Feedback loops are how we learn, whether we call it trial and error or course correction. In so many areas of life, we succeed when we have some sense of where we stand and some evaluation of our progress. Indeed, we tend to crave this sort of information; it’s something we viscerally want to know, good or bad. As Stanford’s Bandura put it, “People are proactive, aspiring organisms.” Feedback taps into those aspirations.

With all of this in mind, I invite readers to suggest potential applications :-)

[H/T Tim Ferriss]

Inside Job

 

Last night I finally got around to watching the academy award winning documentary "Inside Job." I had been planning to watch it for some time, but somehow ended up finding other things to watch instead. I enjoyed it and found it to be very interesting, but I imagine that readers of prawfs might be split on its merits. A good number of professors (primarily business/economics ) get skewered pretty well in the interviews.

Here are some of my favorite quotes from the movie:

Andrew Sheng: Why should a financial engineer be paid four times to 100 times more than a real engineer? A real engineer build bridges. A financial engineer build dreams. And, you know, when those dreams turn out to be nightmares, other people pay for it

Michael Capuano: You come to us today telling us "We're sorry. We won't do it again. Trust us". Well i have some people in my constituency that actually robbed some of your banks, and they say the same thing.

(My paraphrase) "As I recall I was revising a textbook." (You'll have to watch the movie for context on this one)

Is deliberation overrated?

I'm not saying that deliberation is necessarily overrated, but I'm starting to wonder about its relative value. In recent years I've read a number of books and articles on the decision making processes of groups such as James Surowieki's The Wisdom of Crowds (2005) and Cass Sunstein's Infotopia: How Many Minds Produce Knowledge (2008), and found them to be very interesting and insightful. Both of these books at least suggest the possibility that group decision making may not always be better with group deliberation.

Of course, to suggest that something is 'overrated' typically implies that it is somewhat highly rated in the first place. When I look around, I see deliberation everywhere - government decisions, academic committee decsisions, tenure decisions, where to eat lunch, jury outcomes, Supreme Court outcomes (ok, only to a degree on that one). I think it's fair to say that deliberation is cherished in this country. But is it all that it's cracked up to be? What are its attributes? How do we evaluate its worth (relative to other systems)?

For a bit of class fun last semester, I tried a class exercise that was suggested by one of my readings on this subject.

I divided the class into three groups of equal size: 1) The deliberation group, 2) The secret vote group, and 3) the list vote group. I then held up for the class to see (all had roughly equal views) a glass container of paper clips. They were able to view the container for 30 seconds. I then asked the groups to decide how many paper clips were in the container. The secret ballot group was to do just that - each person would make a guess, write it down in private and their estimates would be averaged. The list  group would use a list - the first person to decide would write their estimate on the top of the list and then the estimates would go from there (everyone could see the prior estimates)- and they were averaged. The deliberation group deliberated on the best estimate and used a consensus decision rule on the number of paper clips.

The results? The best estimate was by the secret vote group, followed by the list group, and the worst estimate (by far) was by the deliberation group. Of course, this little exercise is hardly ready for scientific peer review and was done primarily for fun and to introduce the class to varying decision methods. However, given the prevalence of deliberation in our society, might it give us pause to think about whether it's 'overrated'? I'm not sure. Certainly there are other considerations at issue (e.g. how the process makes participants feel). But I thought I'd see what Prawfs readers thought.

Kansas and the Mexican Question

In my last Prawfsblawg entry titled Feral Pigs, Communist Pigs, and Incitement to Genocide, I stressed the point that vocabulary matters enormously in the context of explaining and attempting to justify violence against human beings.  In a marginally well adjusted society, one might hope, it should be more or less axiomatic to most people that killing fellow humans cannot be justified by likening persons or groups to animals, and that killing explained by no more convincing rationale than the victim classes’ alleged pig-like or cockroach-like attributes is morally repugnant.   Yet international and inter-ethnic conflict and oppression today appear as closely intertwined with the false science of dehumanization as were their antecedents in the medieval and ancient worlds.   The rhetoric of extermination deployed in Rwanda or Nazi Germany seems as little touched by the sensibilities of the Age of Enlightenment as were the primitive impulses of hate and fear that shaped the deontological opposition of Muslims and Christians in the Middle Ages.   Barbaric sensibilities might be cabined or controlled in modern culture, but they awaken all too quickly in all too many people when summoned to support inhuman projects by evil or unthinking speakers.

Kansas state representative Virgil Peck, who Wikipedia lists as Chairman of the Republican Majority Caucus, recently suggested machine gunning illegal immigrants from helicopters as a useful public policy option, given the reported successes in thinning the state’s feral pig population by similar means.  A decade before champions and opponents of slavery’s expansion into Kansas fought the infamous prelude to the American Civil War known as Bleeding Kansas, the slaveholding United States fought free Mexico in a two year war leading to the annexation of one third of Mexico’s territory into the United States.   Some cultural imperialists justified the War principally by invocations of Manifest Destiny and articulated arguments that allegedly stronger races were destined to conquer allegedly weaker ones.   But for President James K. Polk and then Congressman Abraham Lincoln, at least as a matter of public discussion, the war’s justice or injustice hinged  not on the politics of race, but on decidedly U.N. Charter-era considerations that today would be cast in terms of illegal aggression and lawful self-defense.  In his speech in the United States House of Representatives on January 12, 1848, Lincoln characterized his dispute with Polk as follows: "The President [Polk], in his first war message of May, 1846, declares that the soil was ours on which hostilities were commenced by Mexico, and he repeats that declaration almost in the same language in each successive annual message, thus showing that he deems that point a highly essential one. In the importance of that point I entirely agree with the President. To my judgment it is the very point upon which he should be justified, or condemned.”

Lincoln and other war skeptics took it for granted that only self-defense could justify collective violence.

  Alleged animal attributes or racial inferiority did not figure in his calculus. Looking back on the Mexican War in his post-presidential Memoirs in 1885, Ulysses Grant offered a similar assessment.  By the standard that aggression was illegal and that only self-defense could justify violence, Grant measured the U.S. decision to wage war against Mexico in the balance, and found it wanting:  “[T]o this day [I] regard the war . . . as one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory. . . . The occupation, separation and annexation were, from the inception of the movement to its final consummation, a conspiracy to acquire territory out of which slave states might be formed for the American Union."

The first generations of G.O.P. leaders had a far sounder understanding of basic principles underlying the illegality of collective and individual killing than the leader of the Kansas Republican Caucus does today.  Lincoln and Grant’s Whig forbear Daniel Webster spelled out these fundamental principles memorably in the context of the Caroline Dispute from 1838-42, and Webster’s insistence that defensive force was justified only when necessary and proportionate to repulse an existing or imminent attack accurately represents both municipal and international law to this day.  Virgil Peck would have done well to internalize the basic maxims understood so clearly by Grant, Lincoln, and Webster and to disown forever the politics of racist incitement.   The fact that Peck has so far not resigned his position and his seat is troubling, for it signals to the world that a man willing to endorse profound evil can ascend to high office in the United States.   From this writer’s perspective, the fact that the people of Kansas and of the United States have not been adamant in demanding his resignation is more troubling still.

Of Feral Pigs, Communist Pigs, and Incitement to Genocide

Yesterday’s Lawrence (Kansas) Journal World featured a front page spread commemorating ten noteworthy and/or outrageous developments in the just concluded Kansas legislative session.  Coming in near the top of the list were remarks made by state representative Virgil Peck, who suggested back in March that shooting feral hogs might serve as a useful model for addressing a perceived problem of illegal immigration to the state.   Peck’s comments are disturbing on any number of levels, not least because their surreality and shock value; nonetheless, they have generated little national reflection about the central role of animal metaphors (particularly pig-centered metaphors) in propaganda and incitement to genocide.  In context, Peck’s remarks are stranger still, as the program he endorsed as a suitable model for immigration culls involved the Palinesque prospect of machine gunning feral hogs from helicopters. 

Peck’s precise language -- “It looks to me that if shooting these immigrating feral hogs works maybe we have found a problem to our illegal immigration problem” -- becomes truly gut-wrenching when one realizes that he obviously meant to use the freighted term “solution” in place of his first invocation of “problem.”   Wrestling seriously with genocide, crimes against humanity, and incitement as offenses that have been and can be perpetrated by Americans as well as alien peoples may not particularly burden the national attention span, but shooting feral pigs on grounds of racial purity has, it seems, become a minor obsession in a least some quarters of the country.  A few weeks ago I stumbled across a documentary (mockumentary?) on the Discovery Channel titled something like “Pig Bomb” and “Russian Boars” exploring the alleged explosion of the wild hog population in the Southeast.   The thesis of the show was that American farm pigs and their feral prodigy are well meaning and seldom uppity, but that in recent decades giant immigrant wild pigs from Russia and Ukraine have infested the native American population and made it dangerous by cross-breeding.   I suspect the show was meant to be taken seriously, but it might as well have been a Canadian or European spoof of overblown American xenophobia and anti-communism.  

Peck’s remarks tap into a long vein of nationalist discourse about the dangers of foreign pigs and commie pigs.   A half-hearted apology issued under pressure a day later does not dispel my sense that Peck is no mere unconscious racist (to borrow Charles Lawrence’s phrase).  When challenged on the obvious racist valance of his remarks, Peck was hardly in a position to feign outrage as Newt Gingrich recently did when called to account for labeling Barack Obama the Food Stamp President.   Peck’s approach is naked, direct, and dehumanizing.   It is the approach of Joseph Goebbels and Radio Mille Collines.  It is incitement to genocide.   The Rome Statute treats incitement purely as a modality of genocide, a means of attributing liability after the crime of genocide is completed.   The Genocide Convention, more soundly in my view, treats incitement as an independent offense that can be completed absent any actual killing.   Peck’s commentary goes well beyond group libel.   It is criminal and should be of grave concern to thinking citizens of the United States and the world.