Monday, October 07, 2013

Law and Society 2014 CrimProf Announcement

For the last five years or so, I've been involved with planning a "shadow" crimprof gathering at the annual Law and Society conference. Carissa Hessick (Utah) has been my partner in crime the last couple years, and the endeavor has gone very well, with this last year's event including over fifteen panels and something like seventy participants or so.  

Sadly, Carissa and I are deciding to not play much of an organizer's role this year for the upcoming gathering in Minneapolis. There are a few considerations at play. We've always chafed under the somewhat peculiar participation rules that limited our sense of what number of panelists made optimal sense.  But aside from that, we now have to deal with the unwillingness/inability of LSA to coordinate more than four panels for us or for any other group that would like to ensure that we could attend each other's panels without conflict in time and place. We might reconsider in future years, but for now, we figured that we'd let crimprof type people who want to go to LSA in Minneapolis this spring use the comments to this thread as a vehicle for putting together panels.  

I should add: while we may return to LSA in the future, we are also considering just having a stand-alone crimprof conference at a law school, probably in May or June also, so that early drafts can be shared and repaired over the summer.  (In my own head, it would like something like the ImmProf biennial gathering about which you can read here.) If your law school is interested in hosting this, either this year or in future years, let Carissa and me know. We anticipate that we would keep costs down by requiring participants to pay their hotel, perhaps most meals, and airfare. 

In any event, if you're a crimprof and want to go to LSA, please feel free to include an expression of interest and abstract that you'd like to present. Remember that panels need to be packaged within the next week or so (october 15 is this year's early deadline).


Posted by Dan Markel on October 7, 2013 at 03:54 PM in Criminal Law, Life of Law Schools | Permalink | Comments (0) | TrackBack

Friday, October 04, 2013

Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness

For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.  

I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)

Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.

 Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).

Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells.  Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!)  pace my friend Adam Kolber in Against Proportional Punishment).

When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by  the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.

Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).

This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of  folks, e.g., the sexually violent  predator types in Kansas v. Hendricks.  I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).

To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.

And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise.  Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.

Posted by Dan Markel on October 4, 2013 at 03:29 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

Monday, September 16, 2013

Longer Sentences and Prison Growth, Part 1

Over several future posts, I am going to argue that despite all the academic, political, and media attention they receive, long prison sentences are not driving prison growth. Sentences are not that long, and time served has been fairly stable over the years. It is a counter-intuitive and contrarian position to be sure, but I think I have the data on my side.

I want to start, though, with a very simple argument for why we should be skeptical of the longer-sentences-are-central-to-prison-growth argument. And it is one that requires almost no real statistical digging at all.

It’s this graph:

Screen Shot 2013-09-16 at 11.18.05 AM

All this graph plots is total annual admissions to prison in blue, and total annual releases from prison in red. Intuitively, if states were forcing entering cohorts to serve longer and longer sentences, we should expect to see the red releases line flatten relative to the admission line. And maybe that happens to some degree around the late 1980s/early 1990s, but it disappears by the end of the 1990s.

This at least suggests, with some strength, that any sort of lengthening was short-run in duration, and thus that increases in time served in prison--regardless of whatever the legislatures have done to the sentencing--is not at the heart of prison growth. And I think this is generally the right way think about prison growth.

But I don’t want to oversell this point. In fact, let me undermine it a bit right out of the gate. I decided recently to run a simulation. I assumed that a state used one release schedule for all prisoners and then made a permanent one-time change to that schedule, and plotted the admissions and releases trends for this hypothetical jurisdiction.

Specifically, I initially assumed that all inmates were released over 6 years: of all the inmates admitted to prison in year t, 40% are released in t, 20% in t+1, 15% in t+2, 15% in t+3, 5% in t+4, and 5% in t+5. I then assumed that the state toughened sentencing laws so that it took 11 years for all inmates to be released: of those admitted in t, 35% are released in t, 15% in t+1, 12.5% in t+2 and t+3, 5% each in t+4,t+5, and t+6, and 2.5% each in t+7 through t+11.

In other words, under the first sentencing regime, the median time served in prison is 1 year and the mean 2.4 years, while under the second regime the median is exactly 1 again and the mean 3.375. 

Then, to make my simulated admissions data track the actual admissions data more closely, I assume that admissions increase every year by 100 (from an initial value of 1000) for the first 13 years, by 200 for the next 7 years, and then again by 100 for the rest of the years. This is to capture the admissions increase that appears in the real data from the mid-1980s to 1990.

Here are the simulated results:

Screen Shot 2013-09-16 at 11.20.11 AM

What immediately stands out, of course, is that this simulation seems to produce a bulge similar to the one we see in the real data in the 1990s. So close-tracking/bulge/close-tracking can arise in the presence of toughening sentencing lengths. 

In other words, the real data is not a slam-dunk argument for the fact that tougher sentencing laws are not behind prison growth.

But I have three major caveats to my caveat:

  1. In the simulation, even though the admissions and releases lines return to tracking each other closely in the end, as a result of the tougher sentencing regime the gap between them has grown. We don’t see that in the real data, where the gap actually narrows in the mid-2000s.
  2. I have other approaches using other data that all seem to substantiate the idea that tougher sentences are not driving prison growth. I’ll being working through all these in future posts.
  3. The simulation may suggest that tougher sentencing has contributed more to prison growth than I sometimes give it credit, but that does not necessarily imply that it has been more important than admissions.

All of which is to say the following: I don’t think tougher sentences are driving prison growth. And I think I have the data to back up that claim in the main. But I also want to fight off epistemic closure and confirmation bias, and to keep an open mind to the possibility that sentence lengths are playing a bigger role than I sometimes acknowledge.1

So, it seems pretty clear to me that we overstate the importance of longer sentences. Even more, I feel that the data appear to strongly support the claim that admissions increases are doing most if not close to all the heavy lifting. But the complete story will almost surely be a (fair?) bit more confusing and convoluted. 


1I think it is too easy, when one finds oneself sincerely convinced of a contrarian position, to oversimplify it (“your argument that time served matters is completely wrong. It is just admissions!”) and then defend it to the death. That’s what gets people’s attention. “The conventional wisdom isn’t entirely right, though often it does have its merits” just doesn’t excite people at all.

I don’t want to do either, despite the fact that refusing to fanatically defend an extreme position must violate some part of the Law of Blogging.


Posted by John Pfaff on September 16, 2013 at 11:30 AM in Criminal Law | Permalink | Comments (3) | TrackBack

Friday, September 13, 2013

Do any studies explore increased (or decreased) violent crime or unemployment (or other undisputed social ills) in medicial marijuana states?

Perhaps to the chagrin and annoyance to students in my "Marijuana Law, Policy & Reform" seminar, I keep pushing our class discussion to try to figure out and precisely specify what could be considered undisputed and undisputable harms from any drug legalization regime --- especially if one views simply increased drug use alone, even by young people, to be a social good or at least not clearly a social harm.  (This prior post raised some of these issues and ideas.)  The question in the title of this post is prompted in part by our most recent class discussion, where a rough consensus emerged that increases in violent crime and/or unemployment might be undisputed metrics of a failed social policy.

Thus the question in the title of this post, which also builds a bit off a prior post which asked "Two decades into experimentation, what is really known about medical marijuana practices?".  Specifically, I am wondering if anyone has yet tried (or if it really would even be feasable) to develop effective and sophisticated empirical studies to explore if there have been any statistically significant changes in violent crime rates or unemployement rates in states that have legalized medical marijuana.  

As a relative agnostic (with libertarian leanings) on lots of marijuana reform issues, I believe I would be moved significantly by serious data showing (or even just suggesting) causal links between medical marijuana legalization and violent crime rates or unemployment rates.  Of course, like research on incarceration and crime rates, the results of any such empirical study linking medical marijuana to an increase or decrease in social ills could be disputable and would be disputed by partisan advocates in the reform policy debate.  But for those without a predetermined perspective on various marijuana law, policy and reform issues (which likely describes a majority of Americans), even tentative or partial data showing the positive or negative impact of medicial marijuana and violent crime or other undisputed social harms could and would likely "move the needle" considerably.

This post is intended not only to inquire as to whether anyone is aware of any modern studies exploring these issues in states with medical marijuana laws, but also to ponder whether there are other clear empirical metrics of undisputed social ills that ought to be a central part of the medicial marijuana reform discussion and debate.

Cross-posted at Marijuana Law, Policy and Reform

Recent related posts:

Posted by Douglas A. Berman on September 13, 2013 at 10:52 AM in Criminal Law | Permalink | Comments (2) | TrackBack

Friday, July 26, 2013

The Sky Is Falling (Less Quickly). Yay!

Good news from Erica Goode at the NYT. Third year in a row of declines in prison population across the country. Let's hope the conventional wisdom becomes a Bayesian updater.

Posted by Dan Markel on July 26, 2013 at 11:09 AM in Article Spotlight, Criminal Law | Permalink | Comments (0) | TrackBack

Wednesday, July 24, 2013

Petition: Save Federal Defender Services

[At the suggestion of a commenter on my last post, I offer this petition:]

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel.  In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.

Funding for prosecutors is apparently headed in the opposite direction.  The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.  This radical imbalance threatens the fundamental right to counsel.

Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. 

Update: Thanks to all for the strong support so far. Please send me an email ( with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.

Fredrick Vars

Associate Professor, University of Alabama School of Law

Birmingham, Alabama

Posted by Fredrick Vars on July 24, 2013 at 01:38 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (70) | TrackBack

Things you ought to know if you're about to teach criminal law

I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.

Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.

Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.

So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.

For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused,  b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.

Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.

There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent. 

There's a crimprof blog you might want to bookmark:

And Doug Berman's sentencing law blog is indispensable too:

For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.

From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class.  Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.

Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.


Posted by Dan Markel on July 24, 2013 at 12:12 PM in Criminal Law, Dan Markel, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack

Tuesday, July 23, 2013

Could FACs induce retirement of government officials? A "Corruption" Work-around?

Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?

We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.

Posted by Dan Markel on July 23, 2013 at 06:23 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Friday, July 19, 2013

Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling

As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force.  The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research.  The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:

 There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.

Read the whole case here.

The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime."  The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases. 

The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."

Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information.  Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.  

I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.

This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.


Posted by Lyrissa Lidsky on July 19, 2013 at 04:03 PM in Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink | Comments (1) | TrackBack

Thursday, July 18, 2013

Is there a Case Against Angela Corey?

So much has been written about the Zimmerman verdict that I was reluctant to join the fray, but I've decided to do just that, having found few extended discussions of the prosecutor's mishandling of the case, the bizarre nature of her press conference, and whether any ethics violations could potentially be brought against her with the Florida Bar.  

First, as others have written, the prosecution -- led by controversial veteran Angela Corey -- did a lousy job.  But, given the many years of trial experience of the lawyers for the state, the types of errors they made have struck me as more than just the result of mere sloppiness or oversights. Isn't one of the most basic lessons of first year trial advocacy to prepare your witnesses?  How could it be that the state in a high-profile murder prosecution allows a critical "ear witness" to the incident, Rachel Jeantel, to testify with so little obvious preparation?  How could it be that the state could allow their medical examiner, Dr. Shiping Bao, to testify in such an confusing, halting, and ill-prepared manner (particularly under cross-examination) -- not to mention the contrast between his shaky performance and that of the defense's smooth and confident forensic pathologist, Dr. Vincent Di Maio?

Much has been said about the charges Corey's office brought against George Zimmerman, but indulge me by considering them again.  Why on earth would the DA bring second degree murder charges after a six week investigation in which the police concluded that the suspect had legitimate grounds for a justifiable homicide defense?  Even if Corey had disagreed with their estimation, she should have known that the investigating officers would fight tooth and nail on the stand to support their initial analysis of the evidence -- particularly given that she and her colleagues were "special" prosecutors appointed from another county and, therefore, had no history or relationship with these cops? Also, why not just charge manslaughter from the outset, thereby shifting the prosecution's focus from the nearly impossible-to-prove (given the evidence), "hate in his heart," to the more palatable, "reckless actions that led unfortunately to a death"?  In fact, why not give the state the cover provided by first presenting the case to a grand jury, rather than proceeding by means of criminal information and a bare bones probable cause affidavit?  

Yes, I used the term "performance" when describing the witness testimony, as every litigator knows that trials are more akin to theater than to an actual search for the truth.  Your witnesses must know their lines, maintain the right affect, and have the preferred style of delivery.  Not only do you prepare them for direct examination by rehearsing the questions you intend to ask and the answers you expect them to offer, but you bring in another lawyer to conduct a moot cross-examination, so that they are ready and confident before facing the other side.  I find it difficult to believe that this actually happened in the state's case.  And, if it did not, what was the reason?  Lack of time, motivation, concern?  If so, could any of these serve as the basis for an ethical violation against Corey and her associates?    

Related to this point is the failure of the prosecution team to anticipate and thereby counter the age-old defense strategy of putting the victim on trial.  It should have been no surprise that Zimmerman's lawyers would urge the jury to put themselves in their client's shoes and view the scenario from his perspective (Scary black male wearing hoodie!  Threatening presence in the neighborhood!  And he was high on weed!).  Why did the prosecution make this even easier for the defense by readily admitting into evidence Zimmerman's statements as well as the VIDEO of him at the station house when he walks the detective through his seemingly reasonable version of events? Why not keep that out and try to force the defense to put Zimmerman on the stand to get these exculpatory facts into evidence?  Similarly, what of Zimmerman's completely self-serving claim that Trayvon Martin told him, "You're going to die tonight"? Does this have any ring of truth to it?  And if not, why not make the defendant take the stand to assert it himself, when the state could then cross-examine him?

I was perplexed by all of this, gravely disappointed though not surprised by the acquittal, and then I watched Angela Corey's surreal press conference following the verdict  First of all, what of her smile?  Why is she smiling when the defendant was found not guilty?  She claims that she has "brought out the truth on behalf of Trayvon Martin."  If she believed in the prosecution, in the commission of second degree murder by George Zimmerman, how was the truth brought out?  She is proud to be part of the "historical aspect of the case."  What makes it historical from her perspective -- the degree of press attention?  She says that the jury has carefully "gone over all the facts and circumstances," has worked "very hard," and rendered a just verdict.  And then she admits to reporters that she has not yet spoken with Trayvon Martin's parents or family but immediately made herself available to the media.  It just doesn't add up.

Where does this leave the Martin family?  It seems unlikely that there will be a federal prosecution of Zimmerman on different criminal charges, and as for civil rights charges, proving racial animus via the Hate Crimes Prevention Act would be extremely difficult.   A wrongful death civil suit against Zimmerman is another possibility, though despite the lower standard of proof and likelihood that Zimmerman would have to testify, if he wins his hearing under the Stand Your Ground law, he'd be immune from civil action.

All of which brings me to Angela Corey and her future as a state prosecutor.  Rule 4-3.8 of the Rules of Professional Responsibility regulating the Florida Bar calls for prosecutors to adhere to the following:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.   

From what I've read, it does not appear that (b) or (c) apply, but could subsection (a) be provable against Corey?   If not, is there any redress under any of the other Rules?  Is there any equivalent of ineffective assistance of counsel by the prosecution?

I acknowledge that this may seem to be a strange inquiry coming from a criminal defense lawyer, but I'm not convinced that if the prosecution had been handled differently, the verdict would have been the same.  Trials are crap shoots, as there are so many unknowns, but they are crap shoots in which the skill of the gambler does matter.  The state of Florida was clearly out-lawyered in this case, which is always possible in a jury trial.  What troubles me is that it almost seemed too easy for the defense, as though the other side had decided to throw the game . . . and that's not a fair or just result for anyone.  

Your thoughts?  Please share in the comments.   

Posted by Tamar Birckhead on July 18, 2013 at 01:55 AM in Criminal Law, Current Affairs | Permalink | Comments (67) | TrackBack

Tuesday, July 16, 2013

A Not Quite Post-Script on Zimmerman, etc.

Interesting exchange I though I'd share.  I just rec'd an email from a stranger (to me):

Prof Markel,
You write here -  - that "I fear that if the races had been turned around, we might have a different verdict."

Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?

My answer:
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.

Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.

My correspondent wrote back:

Thanks for your quick -- and equally respectful -- response.

1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.

2)  The jury seemed to be meticulous (14 hours of deliberation, etc.).  According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something."  But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black.  Also bear in mind that white guilt, as well as white racism, can play a role.  But this is just my opinion.

At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.

Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.

Posted by Dan Markel on July 16, 2013 at 11:37 PM in Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (17) | TrackBack

Much Worse than Making Sausages

When I first moved to North Carolina nine years ago, I remember being shocked when I learned that juvenile court jurisdiction ended at age 16 for all purposes and with no exceptions.  This means that if your 16-year-old son or daughter were to intentionally push another kid in the hallway of a public school with a zero tolerance policy, the school resource officer (SRO) could bring assault charges against them in adult criminal court.  I know because I have represented young people facing this very scenario.  

It also means that the collateral consequences of a criminal charge and conviction are potentially borne by every 16 and 17 year old alleged to have violated a criminal offense -- misdemeanor or felony -- regardless of their criminal history, the nature of the injury or harm (if any), personal circumstances, etc.  As you know, a criminal record makes it harder to get a job, to get accepted into college, to receive financial aid, to be licenced in such professions as nursing, and to become a naturalized citizen of the United States.  16 and 17 year olds held in adult prisons are more likely to be raped, assaulted, and to commit suicide than are adult offenders.  

North Carolina is the only state in the country to have such harsh jurisdictional age caps.  One other state ends juvenile court jurisdiction at age 16 -- New York -- which, unlike North Carolina, has mechanisms for "reverse waiver" or removal of a case from criminal court to juvenile court under specified circumstances.  About ten states cap jurisdiction at 17, and the remainder -- the vast majority -- end it at 18.  The numbers of teenagers impacted are significant -- over 65K 16 and 17 year olds are processed in the criminal courts of North Carolina each year, about 26K of whom are only 16.  Stats show that only four percent of this cohort are convicted annually of felonies against people, with the remainder being property crimes or misdemeanors.    

I thought about all of this the other day when reading that Illinois raised the cap on its juvenile court jurisdiction from 17 to 18, thereby joining the majority.  The governor and the bipartisan contingent that supported the bill recognized its value -- that by giving original jurisdiction over all minors to the juvenile court, those who are amenable to its rehabilitative offerings will not be saddled with the burdens of criminal convictions and imprisonment with adults.  Lawmakers also acknowledged that the change would bring significant cost savings in the long run, no small factor given the broken state of the economy and the overflowing numbers of those incarcerated.

The bill's passage is the second step in a reform process in Illinois that began in 2010 when 17-year-olds charged with misdemeanors were moved from adult to juvenile courts. Earlier this year, the Illinois Juvenile Justice Commission released a 2-year study of the impact of the misdemeanor change that found a decrease in the recidivism rate, and it recommended that Illinois join the other states that place 17-year-olds charged with felonies in juvenile court.  Of course, this does not mean that those minors charged with serious offenses cannot be transferred to adult criminal court -- only that all criminal cases against minors must originate in the juvenile forum.  Connecticut has successfully raised the juvenile court age cap from 16 to 18 in recent years as well, also reducing recidivism rates.    

Five years ago, I wrote an article on the history of the movement to raise the age of juvenile court jurisdiction in North Carolina.  I researched the legislative history, looked at reams of old newspaper accounts, studies on adolescent development, commission reports and committee minutes from the various periods during the past century when attempts to raise the age had failed.  The pattern was clear -- with the powerful opposition of the sheriffs' lobby and the backing of state prosecutors, few bills had ever made it out of committee.  The arguments that the cost was too much, that the juvenile court system was already overloaded, and that the result would be a mere "slap on the wrist" to young offenders consistently prevailed in the General Assembly.

Yet, I was naively optimistic that progress would soon be made in my state.  I joined other advocates in writing op-eds, appearing before state legislative commissions, serving on task-forces, and protesting at rallies.  With each step forward, however, we've had at least two steps back.  During the past year, I was heartened that even when our General Assembly is in the grips of conservatives bent on tearing down the little that's left of the social safety net, there are still Republicans willing to sponsor yet another bill to raise the age -- incrementally, of course, but even just moving 16 year old first-offenders charged with misdemeanors into the juvenile system would be a victory.  Now the bill has "run out of steam," and those in the know have shared that it doesn't look like anything will happen with it during this legislative session.  In other words, the pattern continues, and this time I'm a (small) part of the narrative of failure.  

So, what have I learned?  Making sausages is, apparently, nothing like making laws.  In sausage making, there is generally only one person -- the wurstmeister -- who's in charge of the business and makes all the decisions.  Sausages are made according to a recipe that specifies the exact amount of pork, while the inedible parts are discarded. Everyone at the factory is committed to producing a good product, and they strive for uniformity.  The bottom line?  If I were a sausage maker, I'd be insulted by the comparison.  As an advocate trying to bring about change, it only saddens me.

Your thoughts?  Experiences with legislative reform (or with making sausages)?  Please share in the comments.  



Posted by Tamar Birckhead on July 16, 2013 at 12:53 AM in Criminal Law, Law and Politics | Permalink | Comments (1) | TrackBack

Sunday, July 14, 2013

Some more thoughts on self-defense, Stand Your Ground, and Zimmerman

The point of this post is to extend some reflections of ambivalence on some difficult questions regarding self-defense. First, Stand Your Ground (SYG) laws are found in over 20 states including Florida. So, although Florida's getting a lot of heat in my FB thread, I'm not sure it's right to castigate FL as uniquely bizarre in its embrace of SYG. More importantly, it's worth noting that, although the SYG instruction was given here, it wasn't a critical part of the overall case. GZ wasn't claiming a right to deadly force at a moment when he had avenues of retreat. GZ's claim of self-defense was invoked when he (putatively) was on the bottom and shot upward at TM. Might it have framed the defense nonetheless? Perhaps. But given that the forensics were completely consistent with GZ's claim that he shot while he was on the bottom, I'm not sure we should think SYG (in place of a duty to retreat instruction) polluted the jury's decision-making here.

One way in which the FL law did play a role is by shifting the relevant burden regarding self-defense to the gov't. Specifically, the gov't bore the burden of showing beyond a reasonable doubt that GZ did not act in self-defense. In Ohio some states, and historically, self-defense is an affirmative defense, meaning that the defendant shoulders that burden.* Professor Joshua Dressler notes that FL has the burden of disproving SD BRD in the WSJ, but apparently he lumps this burden-shifting point with SYG, which seems mistaken.  In other words, a legislature could make the defendant bear the burden of self-defense while still allowing SYG or requiring a duty to retreat and a state could still have the burden of disproving self-defense claims while allowing SYG or requiring a duty to retreat. (In fact, since 49 of the 50 states, including Florida, make the government bear the burden of disproving SD if the Def't is able to produce some evidence supporting SD, it's probably misleading to suggest that FL's law here is an outlier regarding who bears the burden. I don't think Dressler directly said that, but it's possible some might infer that from his comments.) 

The verdict unsurprisingly seems to be renewing hostility to SYG. There are some powerful reasons to welcome this hostility.

One of the reasons cops don't like it is that it makes it harder to prosecute drug dealers who kill rivals and claim self defense because they were the last ones standing. Some have stressed that SYG hurts minorities. Here the response is typical: it depends. Inasmuch as SYG is a general boon to defendants, and most crime occurs intra-racially, it's not obviously racially biased against minorities in terms of its impact on defendants. That said, analogous to the McCleskey dynamic in the death penalty, there is cause for concern based on the racial impact on victims in inter-racial crimes, and this is what seems to be raising lots of people's hackles, for good reason. But according to the study that I've seen getting circulated for trumpeting this effect, the inference of bias is unproven for two reasons:

The disparity is clear. But the figures don’t yet prove bias. As Roman points out, the data doesn’t show the circumstances behind the killings, for example whether the people who were shot were involved in home invasions or in a confrontation on the street. Additionally, there are far fewer white-on-black shootings in the FBI data — only 25 total in both the Stand Your Ground and non-Stand Your Ground states. 

One last point about SYG's apparent vices. The SYG notion stands in tension with the common law duty to retreat when safe avenues of avoidance are available because we don't want the streets and floors piled with dead bodies on the ground. As mentioned before, I have a lot of sympathy for the common law rule of requiring retreat when feasible. But a principled commitment to the duty to retreat would require revision to the laws allowing the equivalent of SYG in the home. There's a pretty deep sociological commitment to the castle doctrine that works as an exception to the duty to retreat, and thus allows you to prevent being dispossessed of your home. I'm not sure the castle doctrine is net-net justified if there really are safe avenues of avoidance for everyone in the home, but regardless of whether I'm right about that, I do think it's a tough issue. Accordingly, one must bear in mind that self-defense law has to be drawn in a way that takes into account a cluster of complicated moral commitments: do we want to maximally protect home-owners? do we want to make S-D easier for battered women? do we want to maximize lives saved? do we want to maximize only non-culpable lives saved? Do we want to facilitate people feeling safe wherever they have a lawful right to be? Those who proclaim in righteous thunder against SYG have to be confident of their views in at least a couple troubling situations: domestic violence and racist intimidation.  Here's a hypo from Dressler's casebook that I've altered somewhat to make the salience of SYG a little more obvious, despite my concerns about it.

One day Arthur, the resident racist homophobe, informs Dina that if she brings her "trashy gay black ass" that way again he will kill her. Dina could just as conveniently walk along another street, but believing that ‘‘I have every right to walk where I choose,’’ she decides the next day to arm herself with a licensed gun and walk along the now fraught route with her weapon visible to onlookers, as she is permitted to do. Arthur appears and, because of a bum leg, he hobbles toward her, but menacingly, raising his fists and says, "I'm going to get you now." Dina is an olympic class runner, however, and she knows she could run away without problem. Arthur hobbles toward her and is about to punch her. So Dina shoots him because she fears that if she doesn't run, Arthur's strength will overpower her completely.  

Notice that here Dina has several avenues of avoidance: she could have walked along a different road altogether that day, she could have called the cops after receiving the menacing threat, and, ex hypothesis, she could have run away to safety even at the moment prior to Arthur's instigating the violence. Duty to retreat laws would require Dina to avoid this conflict and SYG laws allow her to shoot. I'm inclined to believe that she should have retreated, but I'm also not sure I want to argue that when my fellow citizens vote these laws in place that they are committing some form of moral reasoning malpractice. Anyway, I want to stress, before I close, that I'm not saying Dina and GZ are similarly situated at all.  We have precious little information about the beginning of violence between TM and GZ. My point is simply that there might be a case for SYG that appeals to some "progressives" at least in some cases. 

I'll close with one link to a very interesting recent article on self-defense by Larry Alexander; it is intellectually rich with examples that will stimulate and challenge most people's intuitions. 

*Eugene Volokh notes here that 49 of the 50 states (all but Ohio) put the burden of disproving S-D beyond a reasonable doubt on the state once the defendant has put forth some evidence.

Posted by Dan Markel on July 14, 2013 at 03:32 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (13) | TrackBack

Saturday, July 13, 2013

Zimmerman's Not Guilty

The jury just returned an acquittal on all counts in the George Zimmerman case. I have been expecting this verdict from before the trial when I looked at the evidence that had been produced in the state's discovery. Martin's death is an unfortunate loss, but this case had close to zero evidence to support the goverment's charge of murder and only a bit more evidence to support a finding of manslaughter under a standard of beyond a reasonable doubt. As an ethical matter, the government should be ashamed to have even brought the murder charge, even though over-charging is routine. It's an ethical problem hiding in plain sight.

When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence. In this case, there was very strong evidence supporting the defendant's innocence, so much so that Zimmerman's lawyer expressed a desire for something approximating the Scottish verdict for the jury: guilty, not guilty, and innocent.  That confidence was one that he exhibited early on in the process since Zimmerman decided to press for a trial instead of go to a pre-trial self-defense immunity hearing.  He wanted to show his innocence. I'm not sure he could show his moral innocence, but for reasons Jack explained the other day, there was nothing provably unlawful about Zimmerman's following Martin, and there's also no evidence about who was the aggressor, which is a distinct and critical aspect to whether one forfeits one's privilege of self-defense. Being a provacateur is distinct from being an aggressor. 

I will note, hastily, and in closing, since I have to go catch my flight, that I fear that if the races had been turned around, we might have a different verdict. Inasmuch as that is true, it is an indictment of sociological realities, not a prescription for what should have been done in this case, under the BRD standards afforded to defendants in our criminal justice system. And for what it's worth, I am optimistic that the public will get this, and that predictions of violence or mob justice will prove to be mistaken.

P.S. I will be moderating comments on this thread carefully. Signed, specific, and substantive comments will usually get a response.


Posted by Dan Markel on July 13, 2013 at 10:27 PM in Criminal Law, Current Affairs | Permalink | Comments (39) | TrackBack

Tuesday, July 09, 2013

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   


Posted by Tamar Birckhead on July 9, 2013 at 07:52 AM in Criminal Law, Current Affairs, Film, Judicial Process, Law Review Review | Permalink | Comments (11) | TrackBack

Monday, July 08, 2013

"Stalking", George Zimmerman and Curry v. State

Many commentators, some in response to my earlier post, have suggested that GZ was "stalking" Trayvon Martin.  GZ admittedly was "observing," "monitoring" or "watching" Mr. Martin, at least for some period of time, but the implication of "stalking" is that, assuming GZ was following Mr. Martin as closely as he possibly could, he was doing something inappropriate or illegal.  This seems incorrect, because GZ's conduct was not unlawful. 

First, although I am not an expert in torts, it seems in the absence of stalking statutes, a person is free to follow any other in public in a non-threatening manner.  I invite correction if I am wrong.  (And, of course, in a state which allows the carrying of weapons by license, the lawful exercise of that privilege simpliciter cannot be a threat).  I get this from Prosser and Keeton, as quoted by the Alabama Court of Civil Appeals: “[o]n the public street, or in any other public place, the plaintiff has no legal right to be alone;  and it is no invasion of his privacy to do no more than follow him about and watch him there."  Similarly, the U.S. Supreme Court explained in United States v. Knotts, "When [defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."  That is, it was not that the police could follow the defendant because they were the police and had special powers, it was that the police could follow the defendant because any private person could follow anyone in public.  Although Knotts involved a car, the principle is equally applicable to pedestrians.

This common-law tradition, of course, has been changed by stalking statutes; Florida's is Fla. Stat. Ann. 748.048.  It requires that the misconduct (which clearly can be conduct which would be legal in the absence of the stalking statute) be without a "legitimate purpose."  The key Florida case on "legitimate purpose" is Curry v. State, which reversed a conviction for aggravated stalking.   Not surprisingly, it involves a dispute among neighbors.  The Court found that "A report to an arm of government, concerning a matter within the purview of the agency's responsibilities, serves a "legitimate purpose" . . . , regardless of the subjective motivation of the reporter."  The Court also found that reporting to the government was constitutionally protected as a petition for redress of grievances.  Gathering information for use in a possible report to police seems covered by Curry and similar cases.

By a quirk of Florida law, arrests by on-duty police outside the officer's jurisdiction are treated as citizen's arrests.  Such officers, accordingly to the Florida Supreme Court, have no "greater power of arrest outside their jurisdiction than private citizens."   Yet, they may follow suspects, and, if probable cause develops, make arrests.  (However, under the "color of office" rule, if they use their police authority to investigate, i.e., show their shields to get statements or consent to search, the out-of-jurisdiction action is invalid).  It is clear, then, that citizens are not categorically prohibited from investigating crimes and making arrests in public.  Therefore, I see no per se illegality in GZ following Trayvon Martin even if he intended to investigate and, if warranted, make an arrest.  This puts in a different light the statement by the dispatcher to GZ that "we don't need you" to follow Mr. Martin. 

The wisdom of every legal doctrine affecting the case is debatable, including the permissibility of citizen's arrests and neighborhood watches, the liberal granting of concealed weapons permits, limited stalking statutes, and broad self defense doctrines.  Particularly in a former Confederate state, taken together, these doctrines have the whiff of the slave patrol.  But GZ's conduct must be evaluated given the law on the books at the time, which, in my view, quite favors him.

Posted by Jack Chin on July 8, 2013 at 02:33 AM in Criminal Law, Current Affairs | Permalink | Comments (16) | TrackBack

Thursday, July 04, 2013

When Police Question Young Suspects

Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection.  When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends).  Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there.  DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.  

Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed.  Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc.  At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators.  Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.  

About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued.  At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not?  Suppose the officer just isn't sure.  What terrible thing happens?"  He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning."  To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?"  Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school.  In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.

I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time.  In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.

I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess.  The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.  

Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary?  Was the right to counsel invoked?  Was the confession coered?), but the critical questions remain the same:  should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects?  If so, what should be different?  The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts.  Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children.  Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.  

Your thoughts?  Please share in the comments. 


Posted by Tamar Birckhead on July 4, 2013 at 01:55 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (9) | TrackBack

Monday, July 01, 2013

Sneak and Peek

Thanks to Dan & Co for having me.

My main topic for the month:  Sneak and Peek searches, aka Delayed Notice Search Warrants, aka Black Bag jobs.

What’s a sneak and peek search?  Simple:  the police conduct a covert search of a home or business when the occupant is away.  Sometime later, they give the occupant notice of the search—maybe days, weeks or months (today, 90 days is most common).

Covert government surveillance is all the rage these days, but most of the discussion focuses on high-tech surveillance that involves packet switching and $2 billion NSA data centers in the Utah desert.  Sneak and peek searching is old school—any fool with a crowbar can break into your house while you are gone and look through your stuff.  Even the smug Amish have to worry about the FBI secretly looking through their handcrafted cabinets. 

So check this out—the government has discovered that "breaking into people's homes while they are away" is a very useful tool.  There's been a (largely unnoticed) explosion in sneak and peek searches in the past 6+ years:

  Figure 1 Delayed Notice Search Warrants Issued

The chart is from my forthcoming article, Jonathan Witmer-Rich, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here on SSRN.  (Data for FY 2012 will be available sometime this month; I'll share it with you when I have it; I'll bet anybody $37.33 that the number goes up not down.)

Back in 2005, in a speech at U. Richmond Law School, James Comey—President Obama’s nominee for FBI Director—said that “[w]e in law enforcement do not call them [sneak and peek warrants] . . . because it conveys this image that we are looking through your sock drawer while you are taking a nap.”  James Comey, Fighting Terrorism and Preserving Civil Liberties, 40 U. Rich. L. Rev. 403, 410 (2006). 

Ha ha!  What a ridiculous image!  Of course police do not do this while you are taking a nap.  You might wake up and discover them!  Otherwise, this is a pretty good description of a covert search—police secretly looking through your sock drawer, when you are away.  Police do not like that image.  It's alarming because it's accurate.

Here's what I will be doing in my posts this month:

1.  Giving a more detailed empirical description of the rapid rise of sneak and peek searching.

2.  Looking at the history of sneak and peek searching (aka "black bag" jobs).

3.  Arguing that notice is part of Fourth Amendment reasonableness, and so delayed notice warrants require serious Fourth Amendment scrutiny.  Most lower courts to date have rejected this proposition, at least in the context of delayed notice search warrants.

4.  Arguing that the current statutory regime is a total failure, and is facilitating the explosive growth in covert searching.

5.  Giving some solutions to limit the number of covert searches that can be done, while still preserving this tool for when it is really important.


Posted by Jonathan Witmer-Rich on July 1, 2013 at 10:12 AM in Constitutional thoughts, Criminal Law | Permalink | Comments (3) | TrackBack

Monday, June 24, 2013

A Zombie in the Wild

I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the "Standard Story" that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I'd spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.

Gunderman starts with the standard it-isn't-crime explanation:

Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.

His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that's 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2

Screen Shot 2013-06-24 at 10.41.18 AM

But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can't just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.

Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don't necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters. 

Gunderman's conceptually and factually misleading number misses all of this, and thus understates the direct and indirect roles that crime can play. Sadly, this is not an unusual problem in the literature.

Next he moves on to sentencing:

New sentencing guidelines have been a key factor. They have reduced judges' discretion in determining who goes to jail and increased the amount of time convicts sentenced to jail spend there. A notable example is the so-called "three-strikes" law, which mandates sentences ranging from 25 years to life for many repeat offenders. 

First, let's start with the strike laws. While a majority of states have them, according to Frank Zimring about 90% of all strike sentences are handed down in California. So states have them, but don't use them. 

Moreover, guidelines are used in a minority of states, and some data suggests that guidelines are negatively correlated with prison growth: states adopted them to rein in prison populations. Now if we are talking about the federal guidelines, maybe Gunderman is right. But the story is much different in the remaining 89% of the system.

Even more important, it simply isn't the case that longer sentences has caused prison growth. This is the biggest zombie idea of them all, and I will be dedicating several posts to it down the line. But it simply is not the case. I'll give Gunderman a pass on this claim, though. It is almost accepted as gospel inside and outside the academy. I've had people tell me that my results must be wrong because of the conclusions I reach, a complete inversion of the (social) scientific process, and one that must make Thomas Bayes and Pierre-Simon Laplace spin in their graves.

Up next, an oldie-but-goodie:

Perhaps the single greatest contributor has been the so-called "war on drugs," which has precipitated a 12-fold increase in the number of incarcerated drug offenders. About 1.5 million Americans are arrested each year for drug offenses, one-third of whom end up in prison. Many are repeat offenders caught with small quantities of relatively innocuous drugs, such as marijuana, a type of criminal activity often referred to as "victimless."

Do I even need to say anything more at this point? Maybe just two small things. First, the ratio of drug inmates to drug arrests is about 23%, not 33% (see here and here). And 1.5M arrests is a large number, but keep in mind we arrested almost 12.5M people in 2011. It would be surprising if just 12% of all arrests drove everything. The back-of-the-envelope calculations don't seem to work.

Gunderman then turns his attention to crack/powder sentencing in particular:

Some sentencing laws seem little less than perverse. For example, in the 1980s, crack cocaine received a great deal of public attention. In response, the U.S. Congress passed legislation imposing a 100 to 1 sentencing ratio for possession of crack cocaine, as compared to its powdered form. ... From a medical point of view, this makes little sense.

First--again!--we should focus on state sentencing, not federal. And apparently most states do not punish crack and powder differently, and those that do use lower ratios.

Moreover, the medical argument is tricky. What matters is not the chemical form but the method of delivery: oral ingestion is more addictive than smoking or IV use, and smoking and IV use are more addictive than inhaling. Since crack is generally smoked and powder frequently inhaled, the form did make a difference. Moreover, there were real social costs associated with the introduction of crack, though these were almost certainly linked more to the destabilizing effects of the crack markets, not the drug itself, since crack use appears to remain at about 70% of its peak use level.

Now perhaps targeting form rather than method of distribution, or targeting the drug rather than the social ills directly, were bad policy decisions. But the issue is far more complex than the glib "little less than perverse" implies.

Next, Gunderman turns to the costs of prisons, arguing:

The costs of incarceration are high. For example, the state of California spends approximately $9,000 per year for each public school student it educates but over $50,000 per year for each inmate it keeps incarcerated. The proportion of the state budget devoted to imprisonment has been increasing at a rate much faster than that for education. Moreover, despite California's huge prison expenditures, its prisons recently held 140,000 prisoners in facilities designed for only 80,000.

First, all fifty states are different, and when it comes to penal policy California is a distinct--albeit large--outlier. So it does not necessarily make sense to use California as a stand-in for the US. As my own work has shown, Census data on expenditures suggest that prison spending as a share of the budget has been flat since crime started dropping in the 1990s. States have become much richer during that time, and they have chosen to spend on everything. There may be some crowding out going on, but it is not immediately clear.

Screen Shot 2013-06-24 at 12.07.29 PM
(In the figure, don't worry about the three lines: they are just different ways of thinking about a state's budget. But no matter how we define "budget," the same pattern holds.)

Moreover, at a national level, spending on schools greatly exceeds that on prisons. Perhaps on a per-student and per-prisoner basis the prisons get more, although the implications of that are not immediately clear--there are a host of assumptions about the correlation between spending and outcomes that underlie Gunderman's point. These assumptions may be true, but they need to be supported (or at least acknowledged).

Finally, note that the $50,000/prisoner number--which is one of the highest levels in the country--is just an average cost measure, not a marginal. Cutting one prisoner will not reduce costs by $50,000. After all, releasing one prisoner does not reduce heating, staffing, maintenance, or other costs at all. The best estimate of marginal costs that I have seen, using data from Maryland, suggests that marginal costs are half of average costs.

Then, he turns to the other side of the prison-crime problem:

Does prison do any good? This is a surprisingly difficult question to answer. 

He's absolutely right: given the endogenous nature of prison and crime, disentangling any sort of causal story is incredibly hard. But he uses this difficulty to basically just throw up his hands and admit that there may be some incapacitative and retributive benefits, but that's about it. Perhaps. But while complicated, there is a lot of data out there, and the more-methodologically sound studies do find that prison growth reduced crime. We may be well past a point of declining--maybe even negative--marginal returns, and our focus on prison likely distracted us from what would have been a much more efficient focus on police. But again, these are much more nuanced arguments than the usual "prison doesn't stop crime" argument that gets trotted out as part of the Standard Story.

He goes on:

Yet it is difficult to make the case that so-called correctional institutions do much in the way of correcting, reforming, or rehabilitating inmates. The recidivism rate at 3 years post-release is about two-thirds, of which over half end up back in prison. The most important factor in preventing recidivism is not the amount of time people serve in prison, but the age at which they are set free. The older inmates are at the time of their release, the less likely they are to return.

First, an "amen." The age-profile of offending is a hugely-overlooked issue in our criminal justice system. Offending does not occur randomly over the life-course. Those who offend repeatedly start in their early teens with property crime, graduate into violent crime in their late teens and early 20s, and start to ease out of offending in their late 20s and 30s. Of course, there is a lot of variation in these trends, and sadly we cannot seem to predict who will follow what trajectory in advance. 

But our policies clearly ignore this fundamental fact. Offenders generally get their harshest recidivist-enhanced sentences just as they are most likely to start aging out of criminal behavior. One could argue that such sanctions are the necessary evils of maintaining a credible threat, but the evidence about the deterrent effect of severe sanctions is weak. On the other hand, throwing the book at the young first-timer is hard because of the false-positive risk. Gunderman deserves credit for drawing our attention to this.

On the other hand, the 2/3 number is a really tricky one to understand. First, if 1/3 of all cancer patients receiving a chemotherapy treatment survived three years, would we call the therapy a "failure"? It depends on the baserate survival risk without the treatment--and we have no idea what that would be for the recidivists. If 1/3 would not have recidivated no matter what happened, then prison does not reform well. But if all would have recidivated but for incarceration, then maybe 1/3 is a remarkable success, given the challenges of changing human behavior later in life.

Instead, we should look to prison programs directly. And here there is a huge literature which suggestst that a lot actually works, although context, design, etc., etc. all matter significantly. Again, a much more complicated picture than the Standard Story is equipped to handle.

His next point is that incarceration hurts the families of inmates, and this is a good point to make; I don't really have anything to criticize. In our debates over prisoners-vs-victims, it is important to remember that many family members of inmates--particularly their children--are themselves now victimized by the process.

His turn to community harms, though, again reflects the unnuanced perspective of the Standard Story:

Incarceration also takes a big toll on communities. Its costs, both direct and indirect, are high, and it draws resources away from other equally or more worthy needs, such as education and healthcare. Some communities, particularly in inner cities, are devastated by incarceration.

True, but since crime is geographically concentrated, these are also the communities devastated by crime. As James Forman has pointed out, much of the demand for tougher sentencing laws during the 1980s came from inner-city black communities, which have also borne the brunt of their enforcement. Crime policy is not just some disinterested state imposing its will on politically powerless inner-city communities. 

That's enough (and the end of the Atlantic article). Sadly, this is what I am used to reading: this is the Standard Story in a nutshell. And it is wrong in so many ways. It undersells crime, it oversells harsh sentences, it focuses too much on drugs and not enough on the complicated politics of a disaggregated criminal justice system. It looks at the harms to inmates and families--perhaps because its focus on drug crimes leads it to think of average offender as someone who committe a "victimless" crime--but ignore the victims of crimes. And, in particular, ignores how the victims of crimes are generally the neighbors of the victimizers, making the community story a tough one to describe empirically.

And as long as we accept the Standard Story, it is unlikely we will implement reforms that really target the heart of the problem.

1Gunderman is a pediatric radiologist who writes primarily about bioethics. So I have no idea why he feels qualified to write about prison growth, and why the Atlantic decided to publish his writings. His primary hook seems to be that mass incarceration has serious public health ramifications, which is indubitably true. But that does not automatically make a doctor qualified to write about such a complicated social process (nor an epidemiologist, for that matter). All I can think of is this xkcd cartoon.

2Violent crime has fallen by 37%, and property crime by 28%, since 1992. But that is just 24 years, not 40. 


Posted by John Pfaff on June 24, 2013 at 03:18 PM in Criminal Law, Current Affairs | Permalink | Comments (1) | TrackBack

Friday, June 21, 2013

Modified Categorical Imperative

I am pleased by Descamps.  Like many people to have clerked on courts with a sizable criminal docket, I have spent a lot of time thinking about the so-called "categorical approach" to sentencing, and what Justice Kagan calls the "not very inventively" labeled "modified categorical approach."  If you don't know what this is, it probably isn't worth your time to learn it, but the gist of it is a formalistic, frequently misunderstood approach to determining when a defendant has a prior conviction for purposes of the Armed Career Criminal Act and other similar statutes, instigated by a case called Taylor.  Anyway, in keeping with the prior format:

  • This is the most correct thing the Court has written about the categorical approach since Taylor itself.
  • That said, I am still unsatisfied with pages 16-19, where the Court tries to explain the difference between alternative elements of a crime and alternative means of committing the same crime.  The Court seems to link this test, for modified categorical approach purposes, to the rules about juror agreement on alternative theories of the crime.  ("Seems" because the dissent, but not the majority, cites Schad and Richardson.)  That might be right, but I know enough to know that it's a complicated area where the Court's precedents are unsatisfying.  And if Steve Sachs is right about how to think about alternative theories of the crime, then it's an unpromising fulcrum from which to move the modified categorical approach.
  • This is not a decision about burglary.  It's a broad statement about the modified categorical approach and a big change in what I've seen from many judges' thinking in this area.
  • I also find it moderately surprising that the opinion purports to "reserve" the question of whether to "take account not only of the relevant statute’s text, but of judicial rulings interpreting it," which many people had thought was uncontroversial.
  • If you are interested in sharp-tongued judicial rhetoric, you should be following Justice Kagan.  The opinion positively mocks the Ninth Circuit decision, Aguila-Montes de Oca, that is substantively reversed in this case. ("When assessed in light of those three reasons, the Ninth Circuit strikes out swinging." "Similarly, consider (though Aguila-Montes did not) ..." "The Ninth Circuit defended its (excessively) modified categorical approach ..." "Here is the only conclusion in Aguila Montes we agree with:")
  • For a long time, every time I thought I had a useful article to write about the modified categorical approach, the Court would ruin it with a new (problematic) decision.  For once, I feel like it is moving wholly in the right direction.

Posted by Will Baude on June 21, 2013 at 02:09 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Thursday, June 20, 2013

Two and a Half Reasons to Overrule Griffin

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas's call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant's exercise of his right not to testify).  I don't have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I'd say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there's little reason to believe that the no-commenting-on-defendants'-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.   Petitioner's merits brief in Salinas did a creditable job of finding 19th century cases that supported the Griffin rule (see the three citations on page 13 of the brief), but the record is still pretty thin.

Second, the system would probably be more legitimate-- and might even be more accurate-- if defendants testified more.  The current incentives are rigged to discourage defendants from testifying-- even defendants who have something they'd like to say.  Nobody can comment on the defendants' failure to testify, and if the defendant does testify, prior convictions or other damaging impeachment evidence can come in. (See.)  Ideally, I'd scrap the Griffin rule and the use of prior convictions for impeachment as a package, but even scrapping one or the other would be an improvement.

Third, I don't think it makes much sense for the Constitution to regulate most of prosecutors say during opening and closing argument.  Criminal cases are full of litigation about various kinds of improper comments and prosecutorial misconduct for the things prosecutors tell the jury, and the whole enterprise strikes me as misguided (with the exception of statements that describe inadmissible evidence).  The prosecutor's comments are not the law.  The defense attorney can disagree with them.  The judge can tell the jury they are not the law.  The jury should know they are not the law.  If we think the criminal trial system currently doesn't work that way-- that juries take what the prosecutors say at face value even if the defense attorney vigorously disagrees and the judge tells them that both sides are advocates-- we have much bigger problems.  After all, the prosecutor also tells the jury that the defendant is guilty, and the game is over if the jury takes that at face value.

Now, I don't mean to sound too optimistic about criminal trials.  It may well be that we do indeed have much bigger problems and that the system is rigged to make the prosecutor a functional authority in the courtroom.  But if that's true, then abolishing the Griffin rule is probably harmless.  So under the optimistic view of the process, juries can be trusted to weigh the prosecution's and the defense's explanations for the failure to testify; and under the pessimistic view of the process the jury probably assumes the defendant's guilt anyway.

This third argument, to be sure, only applies to comments by the prosecution; comments by the court are more complicated.  Griffin involved both, though most of the subsequent cases have been about prosecutors.  I think there would be some wisdom (whether or not there would be some constitutional legitimacy) in retaining the Griffin rule for courts, even if prosecutors are allowed to comment.

But all of these thoughts are quite provisional, and some of them rely on quasi-empirical guesswork. I'd welcome any thoughts about why I am wrong.

Posted by Will Baude on June 20, 2013 at 01:55 AM in Criminal Law | Permalink | Comments (16) | TrackBack

Wednesday, June 19, 2013

Can We Justify How Criminal Justice Authority is Allocated Across Jurisdictions?

Blogging, young kids, and flu season: apparently only two of the three can co-exist at one time, at least in my house. Anyway, in my last post, I asserted that the decentralized nature of our criminal justice system has played a major role in driving up prison populations. In this post, before looking at the problems with decentralization, I wanted to think about whether we can justify such a system, and ask whether the problematic decentralization seen in criminal law is prevalent elsewhere as well.

As an economist, the strongest justification I can see for federalism1 relates to externalities. At least as a starting point, issues should be dealt with by the smallest jurisdiction that completely contains the problem. Obviously, there are clear counterarguments—economies of scale, coordination problems, etc., etc.—against having too many levels of government. But since here I’m basically looking at city, county, and state governments, it seems like a reasonable place to start.

The division of labor we see is basically this: local communities such as cities are responsible for enforcement, counties are in charge of bringing cases and incarcerating misdemeanants, and the state is responsible for incarcerating felons and, via the state criminal code, defining the basic substantive and punitive rules.

Yet what is striking is how remarkably local and concentrated crime is.

Nearly half of all crime in the United States takes place in just 75 counties (see the codebook here)—or just over 2% of the 3,143 counties in the country. Within these counties, crime is concentrated in the urban areas. And within these urban areas, crime is heavily concentrated at the block-by-block level. One study of Seattle, for example, revealed that over a fourteen year period, over 50% of all crime took place in just 4% to 5% of city blocks each year, and 100% of crime each year took place in just about half of all city blocks; over 22% of all city blocks never experienced a crime during the whole sample period. Similar results have been found in other cities as well.

Screen Shot 2013-06-19 at 11.02.22 AM

Yet even the idea of “good” and “bad” neighborhoods understates the concentration of crime. As David Weisburd explains elsewhere:

In what are generally seen as good parts of town there are often streets with strong crime concentrations, and in what are often defined as bad neighborhoods, many places are relatively free of crime.

In fact, so concentrated is crime that Lawrence Sherman has argued that we should think more about “wheredunit” than “whodunit”: tell me that a mugging happened, and I am better able to guess where it happened than who did it.

Furthermore, not only is crime quite local, it seems to be fairly immobile: evidence suggests that for most crimes displacement is not a major concern. Weisburd and others have shown that even within a high-crime neighborhood, concentrated enforcement at a particular crime hot-spot does not appear to displace crime to other, nearby blocks. The hotspot is a hotspot for a reason: there is something about that block—its architecture, its lack of light, etc., etc.—that makes if favorable for, or even encourages, criminal conduct.

Of course, some crimes are more displaceable than others. The low-level drug dealer may not move a few neighborhoods over to sell more drugs, but cartels will reroute their distribution networks through entire new countries if need be. (This perhaps suggests why we see many regional drug enforcement task forces.) And the fact that a majority of violent crime victims know their attackers suggest that much violent crime is localized, while something like terrorism is perhaps much more likely to respond to changing enforcement patterns.2

But, in general, crime is a fairly local, stable (if destabilizing) problem.

Given this, it is hard to immediately justify the way in which we have allocated responsibility for criminal justice issues. Why should county officials decide which offenses deserve prosecutorial attention? Why should state officials decide what crimes deserve longer punishments—and should we even want such one-size-fits-all sanctions? Should crimes in Utica face the same sanctions as those in New York City? (Or is this a defense of plea bargaining, which allows local officials to craft local sanctions from state-level starting points?)

Even California, the one state to seriously rethink this allocation of powers via its Realignment program, does not seem to address these questions well. Realignment will require counties to incarcerate “triple-nons”—non-violent, non-serious, non-sex-offense-registered offenders—in county jails, even for long terms. But what exactly is the relationship between severity and externalities? I can see traces of complicated arguments that could provide some support, but nothing like a slam-dunk.3

There may be some normative arguments for our current system, but these do not feel all that appealing either. Maybe we think it would be offensive if Utica set a much lower punishment for, say, domestic abuse than New York City. But we let the various states set different punishments for such crime, so what is the difference between Utica/NYC and New York/New Jersey?

And it is hard to see a real efficiency argument, either. Perhaps criminal codes are expensive and difficult to write. But then why not have the state write the code and allow local communities to adopt and amend as they see fit, at least for those offenses that seem least displaceable?

But this is an issue that I have not given as much thought to as others, so I would love to hear about justifications that I’m missing. And I’m curious: how big a problem is misdesigned federalism (again, at the local-state level) in other areas of law? Is this a big concern in, say, environmental law (where the externalities seem more obvious and pervasive to me) or labor law? I’d love to hear from people who study other areas of law about whether similar concerns arise there, or if criminal law has a uniquely poorly allocated division of responsibility.


1I’ll use “federalism” here because it is easy. Given the central role of states in criminal justice policy, “statism” is probably more accurate, but more confusing as well. So the “federal” divides I’m looking at here are city/county and county/state far more than state/federal.

2For a cynical take on this, see Robert Wright’s 2002 column about the need for the US to keep its allies close in the wake of the September 11, 2001 attacks: the less our allies are associated with us, the more likely terrorist retaliations will be concentrated on US targets. His title says it all: “Friends as Flak Jackets.”

3And there could be a serious problem here. As David Ball’s work has shown, Californian counties differ greatly in their innate “punitiveness” towards all offenders, violent and otherwise. And as I’ve shown here, the incarceration of violent offenders has been the majority cause of prison growth. So Realignment appears to fail to realign costs and benefits for the very offender class most responsible for rising incarceration rates.

Posted by John Pfaff on June 19, 2013 at 03:24 PM in Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (1) | TrackBack

Monday, June 17, 2013

What Does Justice Stevens Think of Gant?

Justice Stevens's remarks at ACS this weekend have gotten some attention in the blogosphere.  But one interesting point I haven't seen noted has been what appears to be a slight revision in his view of Arizona v. Gant.  Gant restricted the ability of police officers to search the entire body of a vehicle after arresting somebody who had been it.  That broad search ability had been thought justified by a case called Belton, written by Justice Stewart, in which Justice Stevens concurred in the judgment.

In Gant, the majority opinion by Justice Stevens went out of its way to claim that the new, narrower, rule was how Belton should have been understood all along.  The Court's opinion said that there was "the textual and evidentiary support" for a narrower reading of Belton; it described itself as rejecting a "broad reading of Belton," not overruling it; and it explicitly noted that Justice Stevens had once concurred in the judgment in Belton.  Justice Scalia wrote separately to call Justice Stevens's construction of Belton implausible ("I read those cases differently"), though he ultimately "acced[ed] to what seems to me the artificial narrowing of those cases adopted by Justice Stevens," and joined the majority.

Justice Stevens's comments on Gant in his speech sound very different.  He now says that he "dissented from Potter Stewart's opinion in the Belton case," (not technically true -- though maybe this is merely an infelicity in the prepared text).  He says that he "enjoyed" reading Justice Scalia's footnote that suggested that Gant had rejected Belton, and says that "in the Belton case, I remember being particularly offended because the majority's rule allowed an arresting officer making a traffic stop to search through the driver's briefcase," which is precisely the kind of search that the broad reading (rejected in Gant) would had allowed.

Now, these passages are not pellucidly clear, but it seems like Justice Stevens is now closer to Justice Scalia's view of Belton.  If Stevens meant what he wrote in Gant, one would expected him to say that Belton was a good decision that had been misunderstood, not that it was offensive and led to bad results.  And recharacterizing his Belton concurrence (as Gant had emphasized) into a dissent seems like another clue.  Maybe I'm reading too much into this, but I thought it was noteworthy.

Posted by Will Baude on June 17, 2013 at 03:25 AM in Criminal Law | Permalink | Comments (2) | TrackBack

Tuesday, June 11, 2013

Obeying Judges

Acquiescence is in the news.  The Obama administration has announced that it will make Plan B available in a single pill, over the counter, for women of all ages, assuming that will comply with a district court's prior ruling.  Meanwhile an Illinois has prosecutor has announced that he will start allowing Illinoisians to carry concealed weapons, even though the legislature has not yet repealed Illinois's public gun ban.  A Seventh Circuit decision had held the law unconstitutional, but the Illinois courts have so far disagreed.

I am not sure whether either decision is the right one, although both may be.  As for Plan B, it's a little odd for the administration to let a single district court make regulatory law for the entire country without even an appeal.  (Remember all of that talk in the administration's DOMA briefs about how important it was for the issue to be resolved nationwide rather than left to the lower courts?)  On the other hand, perhaps the administration was inclined to make the pill more widely available, and the court simply set the agenda or provided a political excuse.

As for the Illinois prosecutions, the disagreement among the prosecutors and the disagreement between state and federal courts suggests that a higher power will have to resolve this sooner or later.  And the case for acquiescence until then is not obvious.  The Seventh Circuit doesn't sit in review of state prosecutions, and under AEDPA the court of appeals decision is irrelevant to collateral attack.  If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks.

Posted by Will Baude on June 11, 2013 at 06:00 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (7) | TrackBack

Monday, June 10, 2013

Judges Gone Wild?

I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is  a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.

Cf. some of the problems of judicial discretion more generally.  And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.  


Posted by Dan Markel on June 10, 2013 at 05:50 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel, Sports | Permalink | Comments (15) | TrackBack

The Law and Economics of "The Purge"

"The Purge" is the number one movie in America -- by a healthy margin!  People are pretty surprised.  Perhaps it's because it stars Jesse and Cersei.  Or perhaps it's because of its concept.  As Box Office Mojo says: "The fact that The Purge wound up so much higher can be attributed to the movie's unique, intriguing premise—what if all crime was legal for 12 hours once a year?"  You can check out the trailer here.

I haven't seen the movie, but it seems to focus more on one particular home invasion than it does on the broader implications of its premise.  (Cf. "Panic Room.")  But I want to focus on that frankly unbelievable premise.  First, what does it mean that there is no enforcement of the law during the twelve hours of the purge?  Do norms still exist?  The father in the trailer indicates that he has "no need" to engage in the atavistic free-for-all, because he has no violent urges to purge.  But is society endorsing those urges, or simply acknowledging they exist?  I'd be curious to know how the movie treats it.  (Of course, it looks like our heroes have to get violent to save themselves in the end, which is how most of these movies have their cake and eat it, too.)

My second question -- and the basis for the somewhat silly title for my post -- is whether the film's premise has any tether in criminal law theory.  Basically, the idea is that the purge -- or, The Purge -- allows the nation's criminals to beat up on each other for a night and kill each other off.  The lawlessness is justified by its overall effects -- crime rates go down, unemployment goes down, the other 364.5 days are better.  I don't know if a purer faceoff between consquentialist and deonotological theories could be devised.  Let's assume that a lawless 12-hour period would reduce overall crime, and that the primary victims would be the criminals themselves.  Would that justify such a period?

Of course (and again, I haven't seen the movie) I think part of the movie's philosophical bent is that the purge leaves the wealthy elites better off, since they have their fortresses to retreat to, but society as a whole is not better off, particularly the poor.  And from there you could argue that the purge is not so unlike the everyday reality of Rio de Janeiro or even -- name your U.S. city of choice.  So the faceoff is really a false faceoff -- which is the attack that a lot of law & economics critics have leveled against that form of utilitarianism.  Again, I'd be interested to hear whether the movie explores these themes, but even if it doesn't -- there's always The Purge 2.  Perhaps our blogfather could be a script consultant.

Posted by Matt Bodie on June 10, 2013 at 11:56 AM in Criminal Law, Current Affairs | Permalink | Comments (3) | TrackBack

Thursday, June 06, 2013

If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"

One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences.  In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be. 

This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration. 

But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.

--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.  

Posted by Dan Markel on June 6, 2013 at 11:33 AM in Article Spotlight, Blogging, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (2) | TrackBack

Wednesday, June 05, 2013

Some Reactions to Maryland v. King, and a Question for Barry Friedman and other 4A Friends

I have done only a bit more than skim Maryland v. King, and because I'm not really a Fourth Amendment guy, I'm preserving my strategic ambivalence about the outcome as a matter of doctrine. But I have a policy question for NYU's Barry Friedman along with a few other hasty reactions.

First, Barry writes the following in Slate, :

"Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly."

It seems to me that Barry's posing either a specific or a general empirical question, neither of which I possess excellent knowledge about, although I bet there are good proxies out there for saying we know more than nothing.  In fact, I bet the reason law enforcement wants access to DNA of arrestees is because of their view that arrestees provide, on the margin, a better pool to capture DNA from than a random selection of the population at large.  Law enforcement interests here are driven by Big Data patterns that suggest that felony arrestees are likelier to be tied to other crimes than non-felony arrestees.  That's an empirical claim and Barry doesn't provide any links or data to suggest that we should doubt that claim's truth.

From a crime control perspective, would it be better if we had a DNA swab of every person and new baby? Sure, assuming the integrity of the collection. Indeed, Friedman thinks this would be permissible under the 4A (were Congress to pass it) but it's not likely to be authorized by Congress anytime soon.  (Btw, would a nation-wide DNA registry itself be unconstitutional under the 4A? Distributed benefits and costs might save it from the suspicionless problem. Curious for thoughts.)

But as long as a) we are not swabbing every new baby and all existing persons to create a national DNA database, and b) we are taking the time to inventory and identify felony arrestees, can anyone doubt that someone arrested for a felony is, on the margin, more likely to be guilty of some other offense that's out there?

I'm not saying there aren't doctrinal or other reasons that should restrain the DNA swabs. But simply as a matter of statistics or common experience, I'm left wondering  what supports the pretty heterodox view Barry offers that felony arrestees are not in fact more likely to have ties to other crimes than a randomly selected individual? Yes, I recognize that the value of the signal of a felony arrest is not the same as the signal of a felony conviction, but ... if we were going to block the swabs for crime-control purposes on constitutional grounds, let's at least be aware of what's being traded off in the name of constitutional fidelity.  And while we're at it, let's not forget that wide DNA access has the capacity not only to reduce Type II errors, but also to exonerate and thus redress Type I errors too. Fixing false positives is a constitutional value as well as a moral imperative for state officials. I'm not sure the 4th amendment claims advanced by the dissenters and their supporters are adequately sensitive to that, even if the majority implies this is happening already as a matter of fact.*

2.  I agree with Scalia's dissent that  the "identification" arguments on behalf of the DNA swabs are more make-weight than the straightforward though constitutionally more tricky arguments in favor of clearing cases and fixing mistakes. That's because the police could always use the DNA swab to promote their administrative needs (e.g., ensuring that the offender doesn't have a record of violence toward prison officials or communicable diseases that would have to be taken into account for housing him) without using the DNA swab to scope out possible relevance to other crimes.

3. The Court's special needs doctrine allows for suspicionless searches of the public in order to regulate safety or achieve other non-crime detection goals of certain policy weight. Here are two reasons for thinking that the majority's result is correct even if not its reasoning.

a) It's not that far a stretch to say that given the criminal justice system's interests in ensuring that the institutions of punishment are taking adequate care and precaution for the wellbeing of inmates and officials, that the population of felony arrestees is distinct from the population at large, and thus the goal of using DNA to ferret out possible dangerousness or illness is one that should pass muster on special needs grounds. But the reason I  don't love this argument is because if taken on good faith, it would not permit allowing the DNA information to be used to exonerate previously convicted offenders. That would probably be too close to the crime-detection purposes that the special needs doctrine is supposed to be attentive to. However, one might slice the constitutional baloney very thinly and say: DNA swabs are constitutional for administrative purposes pre-conviction, and they are also constitutional for purposes of exonerating others, but they can't be used as the basis to clear other cases against the defendant whose cheek is being swabbed.

b) Speaking of slicing constitutional baloney thinly, I didn't see this argument and it seems worth consideration too--though I detest it because I'm doubtful of the constitutionality and morality of the underlying practices. Here goes: Crime detection is distinct from calibrating punishment. In indeterminate sentencing regimes as well as structured sentencing that allows for "real offense" sentencing instead of (my preferred) charge offense sentencing, the admission of the DNA evidence as a tie to other crimes should be permitted for purposes of sentencing offenders on an individualized basis on the basis of conduct not proven to the jury beyond a reasonable doubt.  So, say King is in Texas and convicted of aggravated assault, which leaves him open to  a 5-99 year spread under the statute for first degree felonies.  The sentencing judge/jury/parole folks can all take into account that he's been tied via DNA to other rapes, even though not convicted of those rapes.  Poof. The sentence for the assault goes up, we don't bother with charging and convicting King for the rapes, and we rest our heads on the pillow of Williams v. New York.  Sentencing is distinct from crime-detection. Right? How awesome is that. Ick.



*Scalia notes in his dissent (fn.2) that the Type I error redress option is not currently available b/c of the way the FBI runs its DNA databases. That could be fixed of course, and should be.




Posted by Dan Markel on June 5, 2013 at 03:54 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (10) | TrackBack

(When) Was Fingerprinting Unconstitutional?

One of my main items of business during this blogging stint is to write about this month's Supreme Court cases as the term wraps up.  So the first order of business is Monday's cases.  I fear I don't have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as "the most preempted law ever."  And while a lot of people have written things about Maryland v. King, I thought I'd throw in my own thoughts.

I'm more sympathetic to the dissent's reasoning than I expected to be.  When I first saw the case granted, I confidently predicted a reversal and I wasn't even sure there would be a dissent.   But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine.  It's common ground that the police can't just go search your house or your off-site car or your gym locker without suspicion when you've been arrested, so it needs a story about why DNA is different.  And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.

That said, I don't think Justice Scalia does a good job of distinguishing DNA from fingerprints.  As I read it, the dissent actually trots out three different arguments about why its view doesn't forbid the routine fingerprinting of those who are arrested.

  1. Fingerprinting is not a search. ("The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question.")  Possible, but Justice Scalia seems unwilling to actually commit to this argument, he just mentions it and moves on.

  2. Fingerprinting really is for identification purposes. ("Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).")  Possible, but this argument relies heavily on computer databases that were only created in the late 1990s, and fingerprinting has been around for a lot longer than that.

  3. Fingerprinting was unconstitutional for a long time (and maybe still is?). ("The 'great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,' and so we were never asked to decidethe legitimacy of the practice ... but it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for 'generations' before it was possible to use it effectively for identification.") Justice Scalia's views about the IAFIS database would seem to imply that routine fingerprinting was unconstitutional until it became part of an identification system.  But he is oddly non-commital.  The Court didn't "bless" it, and it was not "uncontroversial," but was it actually wrong?

As best I can tell, the dissent's view is a combination of 2 and 3, with 1 mentioned but not seriously contended.  If so, that's somewhat surprising.  At the oral argument in Hollingsworth v. Perry, Justice Scalia pestered Ted Olson with the question:  "When did it become unconstitutional to exclude homosexual couples from marriage?" and seemed incredulous that the constitutional answer could have changed more recently than the enactment of the 14th Amendment.  It seems fair to ask him the same question about the constitutionality of fingerprinting.

[CORRECTION:  I originally mistyped "affirmance" instead of "reversal" above.]

Posted by Will Baude on June 5, 2013 at 12:15 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (5) | TrackBack

Thursday, May 23, 2013

LSA Happy Hours and info on the CrimProf Shadow Conference.

Some announcements for folks attending Law and Society next week in Boston:

1) there's a crimprof happy hour on Thursday at 9pm at CityBar,

2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.

Nunc est bibendum!

3) My co-organizer, Carissa Hessick, has, in her typical god-like ways, assembled the info for the Shadow CrimProf conference. This year's shadow conference will have a fantastic turnout.

Info appears after the jump (although not in exact chronological order).

2013 LSA Shadow Conference on Criminal Justice 


Criminal Justice 01:  Sentencing

Thurs. May 30, 10:15am-12noon

Christine Scott-Hayward – Shadow Sentencing

Carissa Hessick – Enforcing Procedural Rights at Sentencing

Dan Markel: Luck or Law: Is Indeterminate Sentencing Unconstitutional?

Lea Johnston -- Vulnerability as a Mitigating Factor: A Tool of Proportionality for Seriously Ill Offenders

Moderator/Discussant: Gerry Leonard


Criminal Justice 02:  Policing and Investigation

Thurs. May 30, 12:30pm-2:15pm

Lauryn Gouldin -- The Law of Investigative Detention

Amna Akbar -- The End of Community Policing?

Seth Stoughton – Policing the Constitution

Sandra Thompson -- Defining "Independence" in Forensic Science Labs

Moderator/Discussant: Carissa Hessick


Criminal Justice 03:  Crim Theory 

Sat. June 1, 2:30pm-4:15pm

Paul Litton – Is Psychological Research on Self-Control Relevant to Criminal Law?

Vincent Chiao -- Criminalization and Liberalism

Michael Rich -- Flipping the Murder Switch: Limits on the Perfect Preventive State

Youngjae Lee -- Moral Uncertainty and Reasonable Doubt

Moderator/Discussant: Michael Cahill


Criminal Justice 04:  Substantive Crimes and Defenses 

Fri. May 31, 2:30pm-4:15pm

Avlana Eisenberg -- Criminal Infliction of Emotional Distress

Jonathan Witmer-Rich -- The Heat of Passion Defense:  Tolerable Reasons to be Angry

Michal Buchhandler-Raphael -- Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization

Steven Morrison -- The System of Modern Criminal Conspiracy

Moderator/Discussant: Eric Blumenson


Criminal Justice 05: Kids, Crime and Punishment

Thurs. May 30, 8:15am-10am

Arnold Loewy -- Juveniles and the Constitution

Mary Graw Leary -- The Role of Technology in Child Sex Trafficking

Deborah Ahrens -- Parenting Behind Bars

Elaine Chiu -- The Movement Against Male Circumcision

Moderator/Discussant: Richard McAdams


Criminal Justice 06: Punishment and the Constitution 

Fri. May 31, 10:15am-12noon

Will Berry -- When Dangerousness is Different

Meghan Ryan -- Juries and the Criminal Constitution

Beth Colgan -- Reinvigorating the Excessive Fines Clause

Todd Haugh – The Critical Mess Theory of Federal Sentencing

Moderator:  Rick Bierschbach 


Criminal Justice 07: Criminal Justice, Discretion, and Policy Challenges

Thurs. May 30, 2:30pm-4:15pm

Babe Howell: Prosecutorial Discretion and the Duty to Do Justice in an Overburdened Criminal Justice System

Jennifer Laurin: Discretion, Pretrial Procedure, and Forensic Science

Cecilia Klingele: Revocation and Law Reform

Ion Meyn: Discovery and Darkness


Criminal Justice 08: Frontiers of Criminal Justice

Thurs. May 30, 4:30pm-6:15pm

Audrey Rogers: Cyber bullying and Suicide

Alex Kreit: Drug Truce

Michael Mannheimer: The Contingent 4th Amendment

Kenworthy Bilz: Punishment and social standing of victims and offenders

Don Braman: Up Against the Wall, Democracy and Policing in Urban America


Criminal Justice 09:  4th Amendment 

Fri. May 31, 4:30pm-6:15pm

Shima Baradaran: Reconsidering Fourth Amendment Balancing

Caren Myers Morrison -- The Drone Wars: Will Technology Outstrip the 4th Amendment?

Laurent Sacharoff -- Constitutional Trespass

David Gray -- A Technology-Centered Approach to Quantitative Privacy (co-author Danielle Citron)

Tigran Eldred -- Tunnel Vision on Trial: A Review Essay on "A Wilderness of Error" by Errol Morris

Moderator/Discussant: Andrew Taslitz


Criminal Justice 10:  Socio-Legal Panels on Defense Counsel & Prosecutors 

Fri. May 31, 8:15am-10am

Ron Wright – Prosecutor Experience and the Culture of Self-Restraint (co-author K. Levine)

Jenia Iontcheva Turner – Effective Remedies for Ineffective Assistance of Counsel: A New Look After Lafler v. Cooper Cynthia Alkon -- Does your lawyer make a difference?  Plea bargaining drug cases for indigent defendants (co-author J. Marshall)

Nirej Sekhon --- Prosecutors and politics

Moderator/Discussant: Don Dripps 


 Criminal Justice 11: Roundtable on Criminal Justice in 2020 book

Fri. May 31, 4:30pm-6:15pm

Song Richardson (Chair)

John Parry

Janice Nadler

Jack Chin

Juliet Stumpf



Criminal Justice 12: Juries 

Sat. June 1, 8:15am-10am

Anna Roberts – Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions

Giovanna Shay -- In Open Court

Jenny Carroll – A Jury for All of Us                                           

Catherine Grosso -- Information Seeking in Voir Dire: Could Modifying Juror Questioning Reduce Jury Selection Racial Disparities? (Co-Author Barbara O'Brien)

Moderator/Discussant: Luis Chiesa 


Criminal Justice 13:  Difference, Crime, and Punishment 

Fri. May 31, 12:30pm-2:15pm

Kim Bailey -- Watching Me: The War on Crime and Its Effects on Individual Privacy

Francine Banner -- "You Have No Leave to Sing”: First Amendment Remedies for Retaliation in Reporting Military Sexual Assault and Harassment

Barbara O'Brien -- Discrimination and the Death Penalty:  Empirical Findings, Limitations, and Directions for Future Research (co-Author Catherine Grosso)

Kay Levine --- Romance, Education or Abuse? Media Narratives about Female on Male Statutory Rape (co-authors Emily Danker-Feldman, Brenda Smith, and Andrea Smith)

Moderator/Discussant: Frank Cooper 


Criminal Justice 14 and CRN Feminist Legal Theory group:  Vulnerability and Criminal Law

Fri. May 31, 8:15am-10am

Mary Anne Franks -- The Vulnerability Tax

Cynthia Godsoe -- Punishing to Protect

Aya Gruber -- Discriminatory Leniency in Criminal Law

Katie Oliviero -- Vulnerability’s Ambivalent Political Life: Precariousness and Law in Social Justice Organizing

Moderator/Discussant: Cyra Choudhury


Criminal Justice 15:  Adjudication

Thurs. May 30, 12:30pm-2:15pm

Darryl Brown – Free Market Ideology in the Law of Bargaining and Trials

Brian Gallini -- Bringing Down a Legend:  How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career

Greg Gilchrist – Trial Bargaining

Melissa Hamilton – Sentencing: Politics or Empiricism

Moderator/Discussant: Brooks Holland


Criminal Justice 16: Roundtable on Future of Gideon at 50

Sunday June 2, 8:15am-10am

Darryl Brown (Chair)

Don Dripps

Josh Bowers

Erica Hashimoto

Jenny Roberts




Posted by Dan Markel on May 23, 2013 at 01:06 PM in Criminal Law, Culture | Permalink | Comments (3) | TrackBack

Wednesday, April 24, 2013

Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys

The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.

Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.

I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.

I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.

Posted by Ivan Cohen on April 24, 2013 at 11:03 AM in Article Spotlight, Criminal Law, Immigration, International Law, Science | Permalink | Comments (1) | TrackBack

Tuesday, April 23, 2013

Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more. 

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course.  For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.  

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces. 

Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?).  Enjoy!

Posted by Dan Markel on April 23, 2013 at 12:26 PM in Article Spotlight, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Monday, April 15, 2013

NYU Criminal Law and the Modern Court Conference

My friends at the Center for the Adminstration of Criminal Law at NYU are having a very cool gathering this coming Friday.

Information is below and after the jump.

On Friday, April 19, 2013, the Center will host its 5th annual conference. This year's conference, entitled "Criminal Law and the Modern Court," will include panels that will survey novel judicial innovations, explore the future of drug courts and drug policy, and consider where the U.S. Supreme Court is headed on important criminal law issues. The Keynote speaker will be Professor of Practice at Harvard Law, and former U.S. District Court Judge for the District of Massachusetts, Nancy Gertner.  The full program is after the jump. You can register here.

The Center on the Administration of Criminal Law Presents

Friday, April 19, 2013 – Vanderbilt Hall, Greenberg Lounge
9:00 – 9:30 CLE Registration & Coffee
9:30 – 9:45 Welcoming Remarks

will discuss innovative models and tools being tested in criminal courts around the country,
including: mental health courts; a new and more effective approach to probation violations
(the HOPE model); and new “algorithm” tools being applied to sentencing and bail
Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Judge Matthew J. 
D’Emic, Kings Co. Supreme Court; Mark Kleiman, Professor of Public Policy, UCLA
School of Public Affairs; Prof. Allegra McLeod, Associate Professor of Law, Georgetown
Law School; Anne Milgram, Vice President of Criminal Justice at the Laura and John Arnold
Foundation; Michael A. Wolff, Dean of St. Louis University School of Law.
11:15 – 11:30 Break

The panel will look at the progression of drug courts and drug policy in New York City and
Moderator: Prof. Josh Bowers, Associate Professor of Law, University of Virginia School of
Law. Panelists: Bridget G. Brennan, New York City’s Special Narcotics Prosecutor;
Chauncey Parker, Executive Assistant District Attorney of the Manhattan District Attorney’s
Office; Gabriel Sayegh, New York Director of the Drug Policy Alliance; and Prof. Frank
Zimring, Professor of Law, Berkeley Law School.
12:45 – 2:00 Lunch Break

2:00 – 2:30 Afternoon Keynote Address by Prof. Nancy Gertner, former U.S. District Court Judge and 
Professor of Practice at Harvard Law School.

will look at where the Supreme Court has recently been and where it is headed on criminal
law issues.
Moderator: Prof. Rachel E. Barkow, Professor of Law, NYU School of Law. Panelists:
Miguel A. Estrada, Esq. of Gibson, Dunn & Crutcher; Prof. Jeffrey L. Fisher, Professor of
Law, Stanford Law School; Erin E. Murphy, Professor of Law, NYU School of Law; Prof.
Nancy Morawetz, Professor of Clinical Law, NYU School of Law; and Sonja Ralston, an
Attorney with the Department of Justice’s Appellate Section.

3:45 Reception


Posted by Dan Markel on April 15, 2013 at 02:23 PM in Criminal Law, Current Affairs | Permalink | Comments (0) | TrackBack

Monday, March 11, 2013

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers. 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better.  The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at Sentencing Law & Policy (where I do most of my blogging).

Posted by Douglas A. Berman on March 11, 2013 at 12:23 PM in Criminal Law, Current Affairs, Judicial Process, Life of Law Schools | Permalink | Comments (4) | TrackBack

Tuesday, February 05, 2013

What Mainstream Criminal Procedure Overlooks (and Why)

In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, "everyone is overlooking everything."  By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book "Ordinary Injustice," which might be thought of as a journalistic follow-up to Malcolm Feeley's pathbreaking work, "The Punishment is the Process." 

I'm going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an "elite" focus on doctrine.  First, these courts are largely invisible to "doctrine."  They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on "well reasoned opinions" (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library. 

Second, state trial and (especially) municipal courts are often bereft of "doctrine."  There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court "workgroup" (as the sociologists put it).  In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist. 

Third, in order to access the operation of these low-level courts we depend upon either anecdotal data or social science data.  The first is unreliable but emphasizes "practice-based knowledge" of the sort that is currently popular; the latter is much more reliable and useful, but emphasizes a discipline that is generally held in disregard by law faculties in the United States (but not, intriguingly, in Europe or the British Commonwealth countries). 

Fourth and finally, (as Alexandra Natapoff compellingly argues) we tend to prioritize felonies over misdemeanors, on some scale of seriousness, despite the fact that for many individuals the impact of a misdemeanor may be as severe as some felonies.  Accordingly, we have little or no knowledge about what happens to the 13 million people who cycle through the misdemeanor system and who are afforded a rough and ready sort of justice. 

While I don't think this is the whole story, I think it is a start.  [I do think that another part of the story is who is writing the scholarship: primarily scholars employed in clinical programs, low-level judges, and criminologists and sociologists working through the data.  My sense—though anecdotal—is that there is a little bit of snobbery about the producers of this scholarship, though I’d be happy to be wrong about that.  I’ll discuss this part of politics of scholarly production and recognition in a subsequent post.]

Problem-solving courts afford one window into this type of court, albeit a specialized version of the system.  What they reveal is a system of justice that is marginal, political, and administrative, dominated by the judge as much as the prosecutor, and in which the Sixth Amendment notion of rights to counsel and adversarial testing are largely absent.  Furthermore, the ideal of an administrative system of justice based on legal-rational decision-making largely absent: the decisions are made through a mixture of conflict and collaboration that is often actively non-bureaucratic (as Feeley first argued). 

Over the next few days I’ll engage a little with some of the great scholarship out there that has yet to make its way into the traditional course.  But one central point worth making is that the focus on low-level criminal courts, given the nature of the process (non-doctrinal) and the sort of issues raised is—if it is to be descriptively accurate and normatively productive—must be both inter-disciplinary and practice-oriented.  The sort of interdisciplinarity I have in mind looks at how practice happens on the ground, and how political institutions, like courts, operate.  One nice example of the latter is Lisa Miller’s book, The Perils of Federalism, which looks at crime, politics, and criminal justice at the community level in Philadelphia.

It ought to be the sort of thing that the various theories of punishment—sociological, criminological and philosophical—attend to.  Often, however, these are top-down theories, primarily concerned with the policies (actuarialism, control, risk) and officials (legislators, perhaps prosecutors, appellate judges) that are perceived as having wide political influence over the criminal justice system: but certainly not low-level judges.  What I am proposing, then, is a bottom-up look at the criminal justice system for the sorts of institutional resistances to legislation that (as criminologist Pat O’Malley argues) are often invisible from the top down perspective of governance.   Problem-solving courts offer a neat example of this sort of institution.  

Posted by Eric Miller on February 5, 2013 at 10:22 AM in Criminal Law, Legal Theory | Permalink | Comments (4) | TrackBack

Monday, February 04, 2013

Reforming the Pardon Attorney Office: Some Preliminary Thoughts

I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.

And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.

Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.

In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.

Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.

Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.

*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment. 

Posted by Dan Markel on February 4, 2013 at 02:36 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (2) | TrackBack

Saturday, February 02, 2013

Hello and Happy Groundhog Day

Thanks to Dan and the gang for inviting me to guest post on Prawfs once more.  For those who don’t know my work, my main interests are in criminal law, criminal procedure, constitutional law, sentencing, and the death penalty.  My most recent, and ongoing, research has focused on looking at the extent to which federalism constraints are built into the Bill of Rights, tying limitations on federal power to the norms of the States.  You can expect some of my posts to be on this research and other ideas I’ve had for scholarship, as well as pending Supreme Court cases, thoughts on teaching, and, well . . . my philosophy is that a blog post should be somewhere between a law review article and the "You Know What Really Grinds My Gears?" segment from Family Guy.

As has been my practice in the past, I will not respond to anonymous or pseudonymous comments.  As one prominent legal scholar recently wrote:  “If you have an argument, make it, and use your name.”

For my initial post I was going to honor Groundhog Day – the movie, not the day – by simply cutting and pasting one of my posts from last year.  However, I was concerned that no one would notice.  But I will perhaps give you an eerie sense of déjà vu by discussing my view of the Cruel and Unusual Punishments Clause in my opening post.  My main area of interest had been the federal death penalty in non-death States.  I had made the argument that the Cruel and Unusual Punishments Clause could be understood as forbidding the federal government from inflicting a type of punishment not authorized by the laws of the State where the criminal conduct occurred.

In my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012), published last November, I update my research and expand on that argument.  I think one can articulate my claims in three ways.  First, I argue that, because the Supreme Court’s jurisprudence on the Cruel and Unusual Punishments Clause as applied to carceral sentences stems from state, not federal, cases it is exceedingly deferential (except for the recent juvenile LWOP cases) largely due to considerations of federalism.  Therefore, a more robust and searching analysis is appropriate in looking at whether federal sentences of imprisonment constitute “cruel and unusual punishment.”  Second, I argue that such a more searching analysis should look to the laws of the several States to determine whether a federal punishment is “cruel and unusual.”  That is to say, if a federal defendant is punished more harshly for an offense than he could be in any State, the punishment is “cruel and unusual.”  And I give a few recent examples where this has happened.  Finally, I suggest that the proper comparator may be, not the States generally, but the State where the criminal conduct occurred.  This would mean that a federal sentence is “cruel and unusual” if it exceeds what the defendant could have received in state court for the same crime in the State where it occurred.

As in my prior work, I rely heavily on the claim that we ought to give primacy to the general views of the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as a way of preserving both individual rights and state sovereignty.  I suggest that an emphasis on the views of the Anti-Federalists should give us a more state-centered, and perhaps state-specific, interpretation of the Bill of Rights than is currently the case.

I’ll leave it at that for now, and go into some of the nitty-gritty and possible implications and further applications of these ideas in later posts.

Posted by Michael J.Z. Mannheimer on February 2, 2013 at 08:37 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (1) | TrackBack

Wednesday, January 16, 2013

Fixing Pretrial Risk Assessment (in Florida)

For those of you interested in pretrial release, I thought I'd point you to a neat roundtable hosted in part by my colleague Sam Wiseman.  Last week, FSU hosted the American Bar Association Roundtable on “Pretrial Risk Assessment and Community Supervision: Tools to Advance Public Safety.” The Roundtable featured panelists discussing a variety of pretrial tools to advance Florida public safety and reduce citizens’ tax burden. The event was co-sponsored by the Florida Sheriffs Association, the Florida Association of Counties, the Florida State University College of Law and the Florida State University Project on Accountable Justice. Video of the event is available here. The focus of the roundtable was on the collection and use of data in the pretrial process, both in individual release decisions and at the system level.  Legislators, judges, sheriffs, prosecutors, public defenders, pretrial agency supervisors, commercial bondsmen, GPS monitoring vendors, and court administrators from around the state attended or appeared on panels.  


Posted by Dan Markel on January 16, 2013 at 11:10 AM in Criminal Law, Current Affairs, Funky FSU | Permalink | Comments (1) | TrackBack

Tuesday, December 04, 2012

Disability Rights and the Insanity Defense

Thanks to Dan for inviting me back.  Happy to be here.

Last week, the Supreme Court denied cert. in Delling v. Idaho, a case that presented the question whether a state could constitutionally abolish the insanity defense.  Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented from the denial of cert.

The constitutional issues presented by Delling are very interesting, but they're not what I want to talk about.  At least for the moment, I'm more interested in the following question: What does a disability rights perspective imply for whether we should have (or must have) an insanity defense?  I will admit I've been somewhat frustrated through the years that nobody has written an article that comprehensively addresses this question -- though some folks, notably Michael Perlin, have addressed important aspects of it.  Though I keep thinking I might write that article, the project keeps moving back in the queue.  So let me just use the occasion of Delling to throw out a couple of ideas about the question.

It seems to me that there are three ways that the existence of the insanity defense might serve disability rights interests.  I have to say, though, that I find none of them fully persuasive as a reason for retaining the defense.

First, it is undeniable that efforts to abolish and limit the insanity defense have often been driven by -- and have fed -- stigma against and stereotypes about people with mental illness.  Perlin's done a great job of showing this.  Retaining the insanity defense might thus be seen as fighting the good fight against these pernicious attitudes.  But it seems just as plausible to me that the insanity defense actually entrenches stigma and the stereotypes associated with people with mental illness.  The defense arises only when an individual with mental illness has taken an act that would otherwise constitute a crime, and it requires defense counsel to prove that the defendant's mental illness caused the act to occur.  It seems to me almost inevitable that the successful presentation of an insanity defense will have at least some tendency to entrench the widely-held public view that mental illness leads to criminality and violence.

Second, one might treat the insanity defense as essentially a reasonable accommodation for people with mental illness in the criminal justice system.  The argument would be that the criminal justice system discriminates against or fails to take account of people with mental illness, so the insanity defense is necessary to "rectify the tilt" (in the words of my friend Chai Feldblum).  The analogy here would be to reasonable accommodation in employment.  Employers purchase desks with some picture of the "ordinary" employee in mind; they don't think of the employee who uses a power wheelchair and a ventilator, who needs a nonstandard desk configuration.  Requiring the employer to purchase a desk that fits that employee may cost money, but it merely rectifies an inequality of the employer's own creation.

Does that story fit the insanity defense?  Is the criminal justice system biased against people with mental illness?  Does it fail to take them into account?  To some extent, the answers to these questions are surely yes.  Many (though far from all) people with mental illness end up in the criminal justice system as a result of low-level crimes that might not trigger criminal justice involvement at all -- and almost certainly would not lead to conviction and sentence -- if they did not have mental illness.  This is the widely decried phenomenon of criminalization of mental illness, which is in part a response to disinvestment in mental health services outside of the criminal justice system.  Moreover, people with mental illness may, because of their condition, be less able in some circumstances to protect themselves against exploitation and trickery by police and prosecutors.  And finally, particularly but not only in capital cases, judges and juries may impose harsher sentences on people with mental illness based on exaggerated fears that those conditions create an increased risk of future criminality.

I think these are good reasons to bar the imposition of the death penalty on people who were experiencing mental illness at the time they committed their crimes.  (The Supreme Court relied in part on similar reasons in barring the imposition of the death penalty on people with intellectual disabilities.)  And they're also probably good reasons to take low-level offenses (certainly for people with mental illness, perhaps for others) out of the criminal justice system.  But in the broad middle range of cases -- involving reasonably serious, but not capital, crimes -- I'm not convinced that convictions of defendants with mental illness always or even mostly reflect bias.

Finally, one might treat the insanity defense as a different kind of reasonable accommodation.  Instead of responding to bias in the system of investigating and adjudicating crimes, the defense may serve to ensure that people with mental illness get served in the mental health system (which, by hypothesis, can provide effective treatment) instead of the criminal justice system (which often cannot).  The problem with this argument is that, thanks to Jones v. United States, an insanity acquittee can be immediately and automatically locked up in a secure psychiatric facility -- for longer, even much longer, than any sentence she could have served had she been convicted.  In many (though far from all) cases, individuals so committed could receive effective treatment in community-based mental health settings, but their status as insanity acquittees makes it practically very difficult to get them out of state psychiatric institutions and into community programs.  From the disability rights perspective that opposes unnecessary institutionalization, a conviction and a reasonably short sentence might well be preferable to an insanity acquittal.  A longer sentence, or confinement in a jail or prison that exarcerbates the mental illness, would change the calculus, but my point is that the insanity defense fails to serve disability rights interests in a significant fraction of cases.

I think the real problem is that the insanity defense comes far too late in the process to address the criminalization of mental illness.  Criminalization occurs because of a lack of adequate investment in community-based mental health services -- both those services that provide day-to-day support and treatment that can prevent antisocial behavior and mental health crises, and those services that respond to crises without triggering criminal justice involvement or institutionalization.  I think those are the big, key issues of mental health and the criminal justice system.  The insanity defense is, to a large extent, just a sideshow -- though one that draws disproportionate attention from scholars and others.

Anyway, these are just a few thoughts.  I'm very interested in others' reactions, in comments or offline.

Posted by Sam Bagenstos on December 4, 2012 at 09:37 AM in Criminal Law | Permalink | Comments (3) | TrackBack

Thursday, November 15, 2012

2013 CrimProf Shadow Conference at LSA in Boston

This is a note that Carissa Hessick (ASU) and I sent out recently to the crimprof listserv, which we reproduce in case there are readers who are prawfs that would like to participate. Please email me and Carissa if you're interested in participating. We usually have about 10 panels and 40-50 people involved, so it makes for a very stimulating and rewarding mini-conference within LSA.


Greetings! The 2013 Law and Society Annual Conference will be taking place from May 30 to June 2 at the Boston Sheraton in Boston, MA. Some background and the call for participation can be found here:

For the last few years, criminal law and criminal procedure professors have used the LSA conference to host a shadow conferences on criminal justice topics. This year Dan Markel (Florida State) and I will once again organize both paper panels and book panels with a criminal justice theme.

The paper panels will cover a range of subjects.  Those panels are designed to match up people working in similar areas. Past panels have covered topics such as substantive criminal law, investigative criminal procedure; adjudicative criminal procedure; punishment theory; race, class, and gender themes in criminal justice; white collar issues; privacy and criminal law; juvenile justice, and sex crimes.

We will do our best to match you up with other people working in relatively similar areas so that there are more synergies among panelists than would likely result if you were to submit a paper proposal directly to the LSA people. In addition, by participating in a paper panel, you'll receive the feedback of other panelists (we ask all paper presenters to circulate their drafts in advance to the other panelists with the understanding that all panelists give each other feedback). This is a great way to have more in-depth connections with scholars working in your area. 

In addition to paper panels, we are also open to organizing a sessions on book manuscripts. If you are working on a book manuscript and would like to have a few people give you feedback in advance of publication, let us know, and let us know who you might be interested in reading that manuscript and discussing it at LSA. If you are interested in an author-meets readers panel for an already published book, let us know about that too.

We would also like to identify people who are interested in serving as moderators or discussants for our various panels.  So if you plan to attend the conference and you are not necessarily interested in presenting your own work, please consider contacting us to volunteer to serve as a moderator or discussant.

In sum, if you're interested in participating in this shadow conference, there will be a variety of opportunities for you to present your own work or serve as a discussant or moderator of book or paper panels. Please note LSA has a stringent participation policy. Generally you are limited to only ONE participation as a paper presenter OR a roundtable participant for the entire conference. If you plan on being involved with the shadow conference, you must let us know if you are contemplating any other participation with the LSA conference so we can make sure you will not jeopardize our panel formation efforts. We will assume that, unless you tell us otherwise, you are using your "one substantive participation" with us. But if you are slated for something else, but still want to be a moderator or discussant, let us know, as we might be able to work that out with the LSA folks.

If you would like to participate in the Shadow Conference in Boston:

By November 19th, please send an email to me and Dan with the subject line “LSA 2013 CrimProf Shadow Conference.”  That email should include:

(a) an expression of interest

(b) an indication of whether you would like to participate in a book or paper panel

(c) a description of your topic (an abstract would be preferable)

(d) whether you are also available to serve as a moderator or discussant

(e) any limitations on the dates of your availability during the LSA. If we don't hear otherwise, we will assume you are indifferent to the timing and day of the panel

(f) if necessary, a heads up if you are contemplating participation on another LSA panel

Shortly after November 19, we will get back to you all with a list of folks who will be your co-panelists. You'll have to each register with LSA but we will assign a panel organizer who will oversee the logistics and ensure things go smoothly. In other words, Dan and I basically serve as matchmakers for the panels, and we also do some interfacing with LSA's Judy Rose to make sure the panels will not conflict with each other.

Please do not sign up to participate in the shadow conference unless you will definitely attend the LSA conference.  (The LSA folks get kind of annoyed with us if our participants drop out.  And each time a panelist drops out, it raises the possibility that LSA will force us to cancel the panel.)

Feel free to contact me and Dan with any questions. And please make sure all your criminal law and criminal procedure colleagues know about this email; not all of them are necessarily on this listserv. 

Thank you, and we look forward to seeing many of you in Boston.

Carissa (& Danny)

Posted by Dan Markel on November 15, 2012 at 09:59 PM in Article Spotlight, Criminal Law, Life of Law Schools | Permalink | Comments (0) | TrackBack

Sunday, September 09, 2012

Should Inmates' First Amendment Speech Allow for Media Interviews?

An interesting bill lies on Governor Brown's desk, awaiting his signature: AB 1270 would allow, and set procedures for, media interviews with prisoners. The bill, sponsored by Assemblymember Tom Ammiano, would dramatically change the parameters of free speech in prison.

 Under the new bill, CDCR would be required to allow interviews with inmates on a pre-arranged and on a random basis, unless the warden determines that the interview "poses an immediate threat to public safety or the security of the institution." The interview request should be presented within a reasonable time, and the interview itself requires the inmate's consent, as well as a notification to the victim or his/her family ahead of time. The inmate is not to receive any form of remuneration for participating in the interview, and CDCR is not to change an inmate's status or punish him or her for giving an interview.


Currently, media interviews in CDCR prisons with specific inmates are not allowed (visiting prison and speaking to inmates at random is allowed under certain conditions.). The Supreme Court's decision in Pell v. Procunier (1974) upheld this regime, arguing that the existing provisions for media contact meant that there was no First Amendment violation.


Let's think about a few potential applications of this. One of the concern folks might have is about sensational interviews providing wanton publicity for perpetrators of heinous crimes. Notifying the victim's family is not, of course, procuring the victim's family's consent. And yes, it would mean more air time for tasteless, heinous and sensationalist media coverage. But how would that be different from the tasteless, heinous, sensational television we already watch?


Think about how much good it could do an innocent inmate if reporters would pick up the cause and pursue it, and how helpful it would be if, in addition to other footage, they could speak to the inmate him/herself. It's enough to be reminded of the stunning impact that Paradise LostParadise Lost 2: Revelations, and Paradise Lost 3: Purgatory have had on the West Memphis Three case (here's a great interview with the filmmakers).


And think of how much more attention the Pelican Bay hunger strike would have received if the public got its news not just from CDCR officials, and some crumbs from what families got through letters. But under the new proposition, it's likely that CDCR would still have the prerogative to decline the interviews based on institutional safety reasons.


If you support the bill, you can let the Governor know your position.



Cross-posted at California Correctional Crisis.


Posted by Hadar Aviram on September 9, 2012 at 11:08 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Tuesday, August 21, 2012

A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium

N.B. This post is basically for crimprofs and those interested in crim theory.

Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)

As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  

For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:

September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)

October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)

November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)

January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)

February 25: Miriam Baer (BLS) and Michael Cahill (BLS)

March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)

April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.

Posted by Dan Markel on August 21, 2012 at 03:07 PM in Article Spotlight, Criminal Law, Legal Theory | Permalink | Comments (2) | TrackBack

"In retrospect, I guess we might have resorted to cannibalism a bit early"

Once again, I used "The Case of the Speluncean Explorers" in the first week of Criminal Law, as a way of "putting on the table" some of the big and interesting questions the course presents (in addition to "who brings dice on a caving trip?") -- questions about statutory interpretation, state-of-mind, clemency, justification-and-excuse, and the sanctity of human life. 

And, doing this reminded me of one of my all-time favorite pieces from The Onion:

  . . . When the six of us got into the elevator on that fateful day, we had no idea what was going to happen. We thought we were just going to take a little ride from the 12th floor to the lobby, just like every other day. Do you think we knew that elevator was going to get stuck between floors? Do you think we got into the elevator saying, "Hey, you know, we should eat our good old pal Jerry Weinhoff from Accounts Payable"? Of course not. . . .

Posted by Rick Garnett on August 21, 2012 at 11:14 AM in Criminal Law, Rick Garnett | Permalink | Comments (0) | TrackBack

Thursday, August 16, 2012

Sanchez on Broadband Deregulation and NSA Wiretapping

Thanks to round-the-clock efforts over the last two weeks to get a piece out the door this submission season, I have leaped into the running for the least-blogging-Prawfsblawg-guest-blogger ever.  Fortunately, the piece is out the door to journals as of today (into, um, the teeth of an unraveling market.)

So, to blogging… My one-time housemate Julian Sanchez has an interesting post over at Cato’s blog speculating on the back history of the NSA surveillance program. He writes:

One of the great mysteries of recent national security surveillance policy is exactly why the controversial FISA Amendments Act of 2008 was necessary . . . .  [I]n early 2007 . . . then–House Minority Leader John Boehner (R-Ohio) publicly declared that a secret ruling by the (normally highly deferential) Foreign Intelligence Surveillance Court had found a problem with a National Security Agency surveillance program . . . . Most of us at the time assumed that the issue had to do with the greatly increased breadth of the surveillance NSA was trying to conduct—but flipping through the latest edition of David Kris and Douglas Wilson’s invaluable National Security Investigations and Prosecutions, I’ve just realized there’s another possibility that fits the public facts extremely well.

The possibility, he explains in a detailed post, is broadband deregulation.   Interesting stuff!

Posted by Mark Moller on August 16, 2012 at 02:48 AM in Criminal Law, Web/Tech | Permalink | Comments (0) | TrackBack

Friday, August 03, 2012

Gotta' Love Crim Pro Federalism

I just finished teaching a summer session of criminal procedure. Sometimes, by the end of the course, I feel like I have spent more time teaching what the Fourth Amendment doesn't do than what it does do. I teach in Washington State, however, where Article I section 7 of the state constitution provides so many more privacy protections that I can't track all of them for my students as we study the Fourth Amendment—consent rules on refusal warnings and apparent authority, Leon's good faith exception, inventory searches, the automobile exception, open fields, pretext stops, pen registers, garbage searches, student drug testing, sobriety checkpoints, and I'm sure more that I'm overlooking. Here's a new Washington State Supreme Court decision, issued today, dealing with warrantless searches of students at school. Bravo to state constitutions!

Which state-specific criminal procedure rules do readers think are the most important or significant departures from U.S. Supreme Court doctrine? Personally, I always have been partial to New York State's "indelible right to counsel," particularly since the U.S. Supreme Court decided Montejo v. Louisiana.

Posted by Brooks Holland on August 3, 2012 at 12:34 AM in Constitutional thoughts, Criminal Law | Permalink | Comments (2) | TrackBack

Thursday, August 02, 2012

Unreasonable Suspicion?

The Ninth Circuit issued an interesting Fourth Amendment decision last week on the subject of reasonable suspicion, in United States v. Valdes-Vega. The "reasonable suspicion" standard dates to Terry v. Ohio, where the Supreme Court upheld limited, investigative seizures on less than traditional probable cause. Instead, following Terry, reasonable suspicion justifies the police in stopping and detaining someone for investigation sufficient to confirm or dispel their suspicion of criminality. A reasonable suspicion, the Supreme Court has held, requires "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."

In Arvizu v. United States, however, the Supreme Court, reviewing another Ninth Circuit decision, made clear that lower courts must consider the "totality of the circumstances" when evaluating reasonable suspicion. Court should not "divide-and-conquer" each fact, however common or innocent each fact may prove in isolation, if reasonable suspicion is supported by the evidence in the aggregate. This understanding of reasonable suspicion has given the police a lot of discretion to stop and investigate individuals without proof of criminality, so long as prosecutors can compile a list of non-criminal factors that, considered as a whole, made the police reasonably suspect criminality. Critics have challenged this standard as giving the police too much discretion with too little judicial review.

In Valdes-Vega, the Ninth Circuit may have pushed back, perhaps fairly hard, against this reasonable suspicion standard. This case involved a vehicle stop and drug seizure in California, about 70 miles from the U.S.-Mexico border. Interestingly, the police observed Valdes-Vega speeding and driving erratically, but they could not stop him to cite or arrest him for traffic violations, because the police here were federal border agents. So, the agents needed to articulate a reasonable suspicion of criminality to stop the vehicle. In arguing that the agents reasonably suspected drug or alien smuggling, the Government highlighted Valdes-Vega's erratic driving, the proximity to the border, Valdes-Vega's decrease and increase in speed near a closed border checkpoint, Valdes-Vega's use of a large truck with Baja California plates, the history of smuggling in the area, and the agents' training and experience. The district court found reasonable suspicion for the stop. But the Ninth Circuit disagreed, concluding that reasonable suspicion on these innocuous facts would permit seizures based on "'broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.'" The Ninth Circuit Blog recently commented on this opinion: "The Ninth, we hope, is becoming increasingly uncomfortable with the 'border exception' swallowing all Fourth rights in the West."

Truthfully, the dissent in Vades-Vega did make a good point on the law that the majority seemed to violate precisely Arvizu's no-divide-and-conquer approach to reasonable suspicion analysis. And maybe this case simply reflects "liberal" Ninth Circuit judges vying for yet another Supreme Court reversal. But on the other coast too, in cities like New York and Philadelphia, critics of the reasonable suspicion standard are challenging police "stop and frisk" programs as too discretionary, abusive, and inefficientCourts in those jurisdictions also may be attempting to toughen the reasonable suspicion standard. Are these judicial decisions, backed by vocal criticism of police action in certain communities, just blips on the Fourth Amendment radar, or a sign of coming changes to the reasonable suspicion standard, such as an increased emphasis on arrest efficiency?

Posted by Brooks Holland on August 2, 2012 at 05:54 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (2) | TrackBack

Tuesday, July 31, 2012

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Posted by Dan Markel on July 31, 2012 at 02:55 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (13) | TrackBack

Tuesday, July 24, 2012

The death penalty for Holmes, and "consultation" with victims

It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings.  It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."

I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted.  And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years.  That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.  

For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss.  (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)

Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do!  Thoughts?

Posted by Rick Garnett on July 24, 2012 at 12:17 PM in Criminal Law, Rick Garnett | Permalink | Comments (11) | TrackBack

Thursday, July 19, 2012

In Praise of Praising Legal Aid Lawyers

A brief essay on has made the rounds this week, In Praise of Legal Aid lawyers. The piece focuses on criminal defense legal aid lawyers, and why society should appreciate their work. The essay doesn't add anything too unfamiliar to this discussion. But it effectively and efficiently makes the case to both lawyers and non-lawyers for valuing public defenders--as evidence by all my current and former public defender friends on Facebook who posted and re-posted this link.

Some jurisdictions, such as Florida, still sadly seem not to get the need for a fully viable indigent defense system. I suppose funding will always be a challenge. But a lot of good indigent defense policies nevertheless have gained traction to help the criminal justice system better realize the unfulfilled promise of Gideon. For instance, the Washington State Supreme Court recently adopted indigent defense standards, including guidelines on caseload limits and attorney qualifications and a certification requirement. Seattle University law prof Robert Boruchowitz, with whom I served on the WSBA Council on Public Defense, details the Court's order here. Other jurisdictions, such as New York, have pursued similar ideas with some success.

As this patchwork of reform hopefully becomes more widespread, the question will become more pressing of what the promise of Gideon functionally should look like in individual and institutional practice. In the food for thought column, I wanted recommend a recent article, Padilla v. Kentucky: Sound and Fury, or Transformative Impact, by CUNY law prof, and former Legal Aid colleague and fantasy baseball competitor, Steve Zeidman. This article considers what Padilla should mean for the constitutional standards of criminal defense work. The bottom line I took from Steve's article: Padilla should mean getting to know your client and his or her case much better, pleading fewer cases out, especially early in the process, and trying more stinkin' cases. The trend, of course, seems quite the opposite: more guilty pleas, fewer trials.

While reading and enjoying the essay praising Legal Aid lawyers, I thought of the Legal Aid lawyers and offices modeled in Steve's article.

Posted by Brooks Holland on July 19, 2012 at 03:45 PM in Article Spotlight, Criminal Law | Permalink | Comments (2) | TrackBack

Tuesday, July 17, 2012

Is the Availability of the Insanity Defense Constitutionally Required?

Yes, or at least that's what an amicus brief I signed  argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)

The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.

First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...

So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.

Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.

Posted by Dan Markel on July 17, 2012 at 04:53 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (1) | TrackBack