PrawfsBlawg

The Social Costs of Juries

Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box.  Some excerpts and reactions after the jump.

As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year.  Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee.  "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."

... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.

I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Risinger vs Allen-Laudan

As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)

I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I  floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.

 I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some  aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment.  Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note:  I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.

Is Silence the Better Part of Valor?

In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization:

A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court." He courteously sent me an email, providing an attached copy, with an expression of hope that he had not "mischaracterized" what I wrote. I thought that he had done so in a variety of ways, and at once wrote him back to say so, with a few paragraphs as merely a start to a longer reply.
After reflecting on the matter over the weekend, however, I decided against the idea. Frankly, it is too reminiscent of the endless exchanges Raoul Berger got into whenever anyone wrote something less than flattering of something he had offered in print. (It was all too much like pleadings at common law, i.e., complaint, answer, rejoinder, surrejoinder, rebuttal, surrebuttal. If nothing else, it could rightly be said of Raoul Berger that he was "indefatigable," i.e., Raoul let no critic go unanswered, determined always to have the last word, no matter what).
On reflection, it seems far better to thank Jack for drawing attention to my SSRN-posted essay, with the suggestion to the many readers of his blog just to read what I wrote, judge the matter for themselves, and leave it at that. To the extent they find it wanting, well, that's quite all right. Still, at the end of the day, it will be quite nice that it may thus achieve a wider audience than I had any reason to expect.

It's kind of a gracious reply--except for the none too subtle digs at Raoul Berger. I guess the thought is that if you're at Harvard or dead (or, better, both), the principles of generosity or charity don't much apply, even or especially to those who might simply be really committed to "getting the arguments right" (one of our mottos here, inspired by Walzer)...In any event, I would think most people who write a critique of another person's work would welcome (or if they have integrity and curiosity, should welcome) the feedback of the object of the critique. That said, I suspect that for some of these objects of critique, the task of replying to those who engage you seems tedious because it requires you to look back on your work when you might prefer to look forward, or perhaps forget you even wrote those words.

Alas, I'm reminded that I have a few things I'm supposed to respond to...but I think I hear the more urgent call to go change a diaper or six. Have a good weekend.

Cubby Markel's Got a Name! Or two... or three.

The following is the text of some remarks shared at today's "Brisening" for Baby Boy Markel.

Beloved family and friends, Rabbi Asa, thank you for joining us from far and near on this auspicious day! We extend to you our warmest greetings and heartfelt blessings.

Wow! We are so grateful and thrilled to share this moment with you. One week ago, our worlds were immeasurably enriched and at the same time turned upside down by the arrival of our beautiful son. Today, on the Eighth Day of his precious life, he has, just prior to this Baby Naming, entered into our people’s covenant with God, a covenant that began with our forebears, Abraham and Sarah.

We want to take this opportunity to say a little about the people whose memory we honor through the naming of our son. Our son’s name in English is Benjamin Amichai Markel. His Hebrew name is Lev Amichai Markel. Each of these three names is rich in significance and merits elaboration.

The Hebrew name Lev, means heart in Hebrew, and it honors the memory of Wendi’s beloved maternal grandmother Lorraine Jacobs, Donna Sue’s mom. Grandma Lorraine and Wendi had an exquisitely close relationship, and it was always a profound regret that Grandma passed away five years before Wendi and Danny began dating. There is so much to say about her that we could spend literally hours sharing stories. Suffice it to say, Grandma Lorraine occupies a magical and persistent presence in Wendi’s heart. And for that reason, and the unstinting love she showered upon her family, and especially Wendi, we have chosen to name our son with the Hebrew name, Lev. We know that if Grandma were here today in person, she would be beaming with pride and joy for all that her grand-daughter has done and become. We also know that right now, Grandma Lorraine is dancing with delight in the heavens above, and we take great comfort in sharing her sense of vitality and good humor with our son.

Lev’s middle name is Amichai, both in Hebrew and in English. The name in English is spelled A-m-i-c-h-a-i, and its Hebrew spelling is eiyin, mem, yud, khet, yud. The name is powerfully special to us for several reasons. First, as many of you may know, Danny’s Bubbie Helen, his grandmother, died just this past spring, after a rich and numinous life of 95 years. Bubbie Helen’s Yiddish name was Khashkie, which was a diminutive of her Hebrew name, Khasia. That name Khasia means “Protected by the Lord”, which is sometimes rendered as a sanctuary, a sacred place of calm and serenity. The name Amichai itself means “my people lives,” and, like the name Khasia, it also includes the letter Khet. Knowing the unwavering commitment Bubbie Helen had to the Jewish people and the Jewish tradition, we think she would take great sanctuary, that is, great calm and serenity in knowing that her people, that is, our people, live on in the name Amichai. Secondly, the English rendering of the name Amichai begins with the letter A, which we use to recall Wendi’s Papa Aaron, Harvey’s beloved father, who died while Wendi was just a sophomore in high school.

Next, we want to share some thoughts about our son’s first English name, Benjamin. The name Benjamin commemorates the grandmothers of both Wendi and Danny. Wendi’s grandmother, Betty Lacow Adelson, was her beloved father Harvey’s mother. Betty was a great mother to Harvey, her only child, and she cared for him with a loving and mighty heart.

Danny’s Bubbie, or grandmother, was Bella Schoenfeld Markel (the mother of his father, Phil). Bubbie Bella died when Danny was a sophomore in college, but he fondly thinks of the many times he spent time with his paternal grandparents in Montreal, and especially the happy times in Bubbie Bella and Zaidy Max’s kitchen, where he delighted himself with her yummy and distinctive chocolate chip cookies, her incomparable chicken soup, and most of all, her sweet and caring disposition. 

The name Benjamin also happens to be the name of Danny’s paternal great-uncle Benjamin, whose daughter Tzipi, and whose grandchildren, Shlomi, Zvika, and Elad, are cousins in Israel and the US to whom Danny maintains an extraordinary close relationship. Because Uncle Benjamin dies many years ago, Danny was deprived of a relationship with him. But in his recent trip to Jerusalem in May, Danny had the chance to hear Tzipi share many heartfelt recollections of her wonderful father, who by all accounts, was an extraordinarily gentle and kind person devoted to family and friends, the kind of person we hope our son Benjamin Amichai will emulate as he progresses toward a life of good thoughts and good deeds.[1]

Last, we want to return one last time to Cubby’s middle name, Amichai. As many of you know, the Hebrew name Amichai was the last name of the great Israeli poet, Yehuda Amichai, who died almost a decade ago. During the transformative year that Danny lived in Israel after college, Danny had the chance to meet with Yehuda several times informally, at parties, in Yemin Moshe, or on the bus, when they would serendipitously meet up en route to buy vegetables at the market. Amichai wrote poetry with an arch spareness, joyful affection for the human condition, and a deep and dry sense of humor. His poems and his personality are not only remembered but lived today, and with great fondness. We’d like to close by sharing a little bit from a poem called “Tourists,” which evokes both Wendi and Danny’s, and Amichai’s love of the present moment, a love that helps us escape the dangers of being too contained and constrained by the dark memories of our people’s often difficult and tragic past, a love that guides us toward the future with aspirations of connection and triumph.

Once again, the poem is called Tourists.

Tourists

Visits of condolence is all we get from them.
…

They put on grave faces at the Wailing Wall
And they laugh behind heavy curtains
In their hotels.
They have their pictures taken
Together with our famous dead…
They weep over our sweet boys
And lust after our tough girls
And hang up their underwear
To dry quickly
In cool, blue bathrooms

Once I sat on the steps by a gate at David's Tower,
I placed my two heavy baskets at my side. A group of tourists
was standing around their guide and I became their target marker. "You see
that man with the baskets? Just right of his head there's an arch
from the Roman period. Just right of his head."

"But he's moving, he's moving!"I said to myself:
redemption will come only if their guide tells them,
"You see that arch from the Roman period? It's not important: but next to it,
left and down a bit, there sits a man who's bought fruit and vegetables for his family."

Thank you again for joining us on this rousing and awe-inspiring day. We hope to share only continued future simchas and joyous occasions with you and our now burgeoning family that includes Lev Amichai, or Benjamin Amichai, Markel.

Feel free to call him any variation of these names, or alternatively, the nicknames we have so far deployed: Cubby (since he's joining a family of Bear and LadyBear), Bam-Bam (as his initials suggest), or Mr. Buggles, b/c he's a snuggle-buggle...there are a lot of choices, but we're pretty sure he's likely to ignore any one of these names for the foreseeable future!

Thanks again for being here. We love you.

Snapshot from today's earlier excitement.

[1] Tzipi’s mother died at an early age and Uncle Benjamin cared unceasingly to raise his daughter to become the warm and gracious matriarch who welcomed Wendi and Danny into her home during the trip to Israel in which Danny later proposed to Wendi . Danny and Wendi also have several close friends named Ben or Benjamin; their love for these fine persons is also connected to this choice of name. E.g., Ben Depoorter, who famously remarked upon taking the Markels around Belgium, You can take Wendi and Danny absolutely anywhere—but just once!

Cubby, earlier this morning, says: Ok, Rabbi Asa, bring it!

Final Version of Executing Retributivism is Now Available

Just a quick note that the final paginated version of "Executing Retributivism: Panetti and the Future of the Eighth Amendment," my recent Eighth Amendment piece, is now available on SSRN, and soon in a Northwestern U. L. Rev. near you (103 Nw U LR 1163 (2009)). Oddly, the Nw U LR has a policy of not using/permitting abstracts, which I found befuddling, since I think abstracts are pretty important, and they didn't have a really good reason for not permitting abstracts, other than consistency with the past and not wanting to irritate other authors who had asked and been denied earlier -- talk about the costs of transition rules! That said, my experience with the NW editing team was truly outstanding, and I commend their EIC Dave Baltmanis and all the other excellent editors who helped me whip this into shape, even as some were prepping for the bar...

Here's the abstract, which I took from an earlier draft.  Again, the final version is available here.

In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requirement only makes sense if there is a commitment to the view that state punishment operates primarily as a communicative retributive encounter between the state and the offender. That view of punishment, in other words, is Panetti's ratio decidendi, the implicit rationale which best explains the case's holding.

Once properly explicated, this rationale entails two profound and insufficiently appreciated consequences. First, the rationale, properly extended, would decisively erode the constitutional justification for the continued use of the death penalty. Second, this rationale would upend the Court's past Eighth Amendment cases that have required neutrality among sentencing purposes selected by the states. Instead, the rationale would elevate "negative retributivism" to a place of primary importance in constitutional criminal law. Under a commitment to negative retributivism, the Court would need to substantially revise at least three areas of law affecting: the practice of warehousing mentally ill persons in prisons; the treatment of claims of actual innocence; and assessments of noncapital sentencing proportionality. In short, once the foundations for the decision are properly understood, Panetti, a seemingly sleepy case about a doctrinally narrow issue, can change virtually everything we know about the Eighth Amendment.

baby boy markel

(Updated with pic below.) Wendi and I welcomed a little and delicious 7 lb 5 oz baby  boy into the world last night (Wed) at 1058 PM. Everyone is flourishing. The baby naming ceremony and bris will take place next week on Thursday in the Hassee. More details to follow but I'm using Facebook Mobile to pepper the world with inanities and new pics so, if you're interested, follow Bam-Bam's life journey there.

With gratitude and blessings,

Wendi Adelson and Danny Markel

Here's a pic of the little guy, dreaming of whitefish salad and other smoked delicacies to come.  

Taxing Punitive Damages, etc.

Update 8/16: We've now got a first shitty draft available for private circulation; if there are tax or torts mavens who wish to read it, please email me asap. Thanks.

It's about four days until my wife is "due." During this pre-baby period, one of my projects has been an effort with my friend and co-author, Gregg Polsky, to finish our "shitty first draft" of Taxing Punitive Damages. I'm happy to say we're almost there. This paper is actually the fourth paper on punitive damages I've been involved with the last few years. The first two came out this past spring (here and here) and I was initially planning on turning to work further on and submit the third one, Punitive Damages and Complex Litigation, later this summer.  But for a cluster of reasons, that piece is now on the back burner and has swapped places with the fourth piece -- the one with Gregg on the intersection of taxation and punitive damages. 

Unlike the earlier co-authoring work I did (and am doing still) with Ethan and Jennifer, where we had overlapping areas of expertise as well as separate ones, this piece with Gregg presents a collaboration where there's really no overlap of expertise. He's the tax guy and I'm, well, the guy who does whatever it is that I do. While I'm definitely not the tax guy -- I never took tax in law school, to my regret, so I've been trying to learn a few things while writing this paper up -- I confess I've had fun learning about all this new legal mumbo jumbo. Tax is fun.  Yeah, I said it.*

Over the next week or so and in the course of a few posts, I'll try to share some parts of the paper's main ideas. There's a rough stab at an abstract after the jump. But keep in mind that all this is tentative, so if you think we're off-base, please let us know.  By the way, we expect to have a circulable draft in the next week or two. If you're a tax person and/or interested in federalism (Brian G? Rick H?), we hope you'll be among the first to read it.

Taxing Punitive Damages
In this article, we address the important but astonishingly under-examined issues associated with the taxation law and policy related to punitive damages. For the most part, the tax consequences of punitive damages are not on anyone’s minds, and as a result of this blind spot, plaintiffs and their lawyers are likely leaving enormous amounts of money on the table in every case involving punitive damages against defendants whose torts occurred in the context of business operations. Of course, even if we assumed that decision-makers regarding punitive damages were aware of the relevant tax effects, there are still a number of other important issues affecting whether a jurisdiction should make punitive damages a) deductible from defendants’ gross income or non-deductible, and b) taxable gains to the plaintiff.  This Article examines those issues, and by doing so, spotlights the policy difficulties associated with trying to use tax law to help achieve the goals of current punitive damages law.  Contrary to a number of scholars who have flatly endorsed the move to a non-deductibility rule to simply increase the putative “sting” of punitive damages, we explain what that change in taxation would augur for a broad array of policy concerns including federalism, settlement incentives, collusion against third parties, and administrative oversight. Because we think a lot of the difficulties associated with the taxation of punitive damages cannot be readily fixed simply by tweaking tax law, we sketch out a vision for what a more attractive punitive damages regime would look like, and how the tax rules would correspond appropriately. 

*Btw, I associated the "Yeah, I said it" line with Chris Rock and his famous joke about who can and cannot be First Lady, but it seems Wanda Sykes may have laid claim to it more prominently by her book title.

Our Fourth and Final Freaky Post: Duties to Rescue and the Registry for Caregivers

Today, Ethan, Jennifer and I have our last post related to our book up on the NYT Freakonomics Blog. Here's the post, with most of it after the jump.

The Duty to Rescue and the Registry for Caregivers: A Guest Post

By STEPHEN J. DUBNER

We have recently featured several guest posts (here, here, and here) by the authors of a new book about criminal justice and the family called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is a scholar-in-residence at Columbia Law School, and an associate professor of law at theUniversity of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their final post, and we thank them for their stirring contributions.

The Duty to Rescue and the Registry for Caregivers
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

In two previous posts, we examined laws exempting family members from prosecution for harboring fugitives and laws either granting or permitting sentencing discounts on account of one’s family status, ties, or responsibilities. These are two of the benefits defendants receive on account of their family status in the criminal justice system.

Today, we explore one of the burdens defendants face in the criminal justice system as a result of their family status. Specifically, we’ll look at the phenomenon of omissions liability, a legal doctrine which places criminal responsibility on certain persons because they didn’t do anything; they’re punished, in other words, because they had a duty to perform a relatively costless rescue, and they breached that duty. We will focus our discussion on the spousal obligation in particular.

The Law and Its Rationale

Generally speaking, most American citizens are under no obligation to rescue each other from peril. Two well-known exceptions to the rule in most jurisdictions (in the U.S.) exist: parents must make (relatively costless) efforts to save children, and spouses must make the same efforts to save each other.

Hmmm. Only parents and spouses. Why not grandparents, cousins, siblings? We think the answer has something to do with the fact that parental and spousal relations are the two familial relationships that persons enter into with some degree of real voluntariness. I can’t choose to have a grandfather or a sister. But I can avoid marriage — notwithstanding the subtle pressures or inducements from Jewish mothers or the government’s social policies. Similarly, obligations to one’s child might be legitimate in part because it’s largely a choice to have a child — at least in an age and polity where contraception, abortion, and the chance to terminate one’s parental rights exist.

Thus, despite the general common law rule in favor of maximizing personal autonomy, the government’s imposition of an obligation to rescue spouses and children is not so illiberal; it reflects the fact that the underlying conduct of having a spouse or child is such that it can be avoided without much difficulty.

What are the rationales offered for penalizing a failure to rescue between spouses? Usually, they are 1) saving human lives in danger and 2) affirming the significance of marital obligations.

The problem with the first interest is that the means used here — spousal obligations to rescue each other, policed through the criminal law — is woefully underinclusive, so much so that it’s hard to take seriously the idea that this is what’s motivating the use of this family-ties burden.

The second objective, by contrast, makes relatively more sense. Although the obligation to undertake easy rescues is not specifically articulated in many wedding vows, it reasonably falls under the language that is often used in those vows.

Our Take

The problem with relying principally on wedding vows in these contexts is that the state ends up drawing weird and inexplicable lines. For example, why do the partners of a newly married heterosexual couple have duties to rescue each other but not those in the long-term homosexual couples living in states that won’t recognize their unions? If the key feature of the spousal relationship (for purposes of assigning omissions liability) is the voluntary assumption of caregiving responsibilities, then we don’t see why the breach of other voluntarily assumed caregiving obligations are not similarly subject to criminal law sanction.

As we argue in greater detail in our book, any potential prosecution of a person for failing to protect his or her spouse from harm also has the potential to have a discriminatory impact, in a different and critical sense: it treats differently those who cannot or choose not to enter a spousal relationship sanctioned by the state. For example, these laws currently do not clearly give the family members of homosexual couples the comfort of knowing that omissions liability is parceled out in a non-discriminatory fashion.

One way to see this discrimination is through analogy: if omissions liability were distributed on the basis of race, such that whites had a duty to rescue their spouses but blacks did not unless they separately contracted for that duty, what message would that send? Our sense is that it exhibits a lack of respect of the value of the spouses of black people. The same is true by restricting omissions liability along lines that are tethered to the few family status relationships recognized by the state. Why should a heterosexual man have an obligation to protect his spouse from harm while a gay man in a similarly meaningful and voluntary partnership does not? In both instances, imposing liability serves the same valuable functions: increasing safety and promoting an ethos of caregiving relations triggered by voluntary choices. Thus, limiting omissions liability to those in a state-sanctioned relationship seems plainly underinclusive; it leaves out those who cannot get married because of a plainly troubling moral choice made by the state.

For the most part, we do not have much problem with marriage being an overinclusive obligation because divorce is an option by which the obligation can be terminated. But because marriage is an underinclusive basis for imposing omissions liability, we think several options should be explored.

Some Options For Designing Policy

One solution would be to decouple omissions liability from marriage altogether, and instead ask parties to any relationship to register with a state registry. This would treat all persons the same and without favor. But a no-duty-to-rescue rule in marriage could act like a penalty default rule. On the one hand, it would probably encourage more people outside of marriage to think about whom they wish to rescue. On the other hand, it might also add needless costs associated with persons who by virtue of marriage would already be willing to undertake a duty to rescue.

A better solution, based on reducing the social costs of the scheme, would be to require duties to rescue in marriages and to create a registry for all others who want to participate in a “compact of care” such that they have a duty to perform easy rescues. Marriages would simply have the implicit term of duty to rescue built into them and others outside marriage (including those in polyamourous relationships) could opt into it. This would also allow persons to insist on seeing evidence of opt-in by another person before they decide to jointly acquire property, cohabit, or perform caregiving tasks for one another.

Some might raise concerns that we are too focused on spouses and parents as paradigmatic relationships here. The concern here would be that we are insisting that the sexual family or marriage be the normative ideal for adult interactions with each other. We respectfully disagree. Indeed, the point of our registry system is to obviate this concern entirely. People who are not married but “act” as though they are do not have to register, but they may choose to do so; or just one may decide to do so for the other since the registry is a place of declaring one’s assumption of obligation — it is not predicated on norms of reciprocity, nor does it require contractual formalities. To be sure, our slight preference for assigning duties to rescue in the context of marriage and custodial parenting is responsive to what we think of as the specific features of caregiving written into the “scripts” of marriage, but no one should be forced into those roles.

What’s more, people should be free to and encouraged to assume these obligations outside the scripts of marriage. The registry we endorse permits siblings or cousins or roommates or friends to enter into compacts of care, but the idea is not to require it through the criminal law outside voluntary choices or the specific circumstances of the parent-child or spousal relationships. Indeed, we would resist any state’s attempt to impose a legally enforceable relationship of caregiving or a duty to rescue on those persons outside the parent-child or spousal context because we simply cannot say these relationships have been entered into voluntarily.

In the context of platonic roommates, imposing a duty of care through the criminal law would be a drastic restructuring of the traditional boundaries of that relationship. On the other hand, we certainly believe that individuals should be able to choose a legally enforceable relationship of caregiving through the use of a registry. This allows individuals to signal their commitment both to each other and to those around them.

It is, of course, possible that very few individuals will choose to register; why would they voluntarily assume the risk of a legal liability that they currently do not face? But if that is the outcome, we are no worse off than we are now, as these individuals do not currently face liability. If, on the other hand, some individuals do choose to undertake an obligation to rescue, the benefits that decision conveys in terms of promoting safety and promoting an ethos of care and compassion certainly seem worth the effort.

We can also imagine the state incentivizing such registrations through small tax breaks; alternatively, perhaps norm entrepreneurs (private employers or faith groups) will start “opt-in days” to foster solidarity among members of their communities. Of course, because peoples’ relationships ebb and flow, the registry would have to permit people to withdraw from these compacts of caregiving if notice is given to the affected parties. Crazy? Feel free to let us know (gently) in the comments. Thanks again to our wonderful hosts for letting us share our freaky, if not quite freakonomical, ideas.

Should Parents Get Sentencing Discounts? Our Third Freaky Post

Yesterday afternoon, Ethan, Jennifer Collins and I had our third post up on the NYT's Freakonomics Blog, following our two earlier posts  about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Sentencing Discounts for Parents? A Guest Post

By STEPHEN J. DUBNER

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders. Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive. Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense. Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

A person who commits a crime can reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself but also his family. Extending a discount to an offender for a reason unrelated to his crime constitutes an undeserved windfall. In addition, giving benefits to defendants with family ties in the currency of sentencing discounts will also, on the margin, incentivize this class of defendants to seek out greater criminal opportunities, or they will be recruited or pressed into action by others.

Still, incarcerating a defendant with significant family responsibilities unquestionably imposes tremendous costs on innocent family members, and those costs are most severe when the defendant is an irreplaceable caregiver to vulnerable family members. Therefore, although we advance the unusual position — taken primarily and unpopularly by the federal government’s sentencing guidelines — that, ordinarily, a defendant’s family ties and responsibilities should not serve as a basis for a lighter sentence, we are sensitive to the serious arguments made by proponents of sentencing departures for those with significant and irreplaceable care-giving responsibilities. These arguments merit attention and amplification.

What About the Children?

It can be argued that depriving children of parents in order to incarcerate the parents for the purpose of punishment is itself a criminogenic (crime-creating) policy. Second, notwithstanding the culpability of the offenders and the harm suffered by the victims of their crimes, it can be argued that the harm is already done; the state should not inflict its own harms on the offender’s children or other persons benefiting from the offender’s care-giving. Indeed, if we urge offenders to bear responsibility for the reasonably foreseeable consequences of their actions, so must the social planners who create institutions of punishment bear such responsibility.

By that logic, our compassion and concern should properly extend to the harm imposed on innocent third parties by the state’s punishments of the care-giving offender. We are therefore willing to agree that compelling circumstances arise when an offender is the sole and irreplaceable caregiver for minors or for aged or ailing persons with whom the defendant has an established relationship of care-giving. Here, however, we reject the suggestion that the law should only value the traditional familial relationship in the context of any accommodations made to “irreplaceable caregivers.” What matters from our vantage point is that the defendant is actually serving a critical social role. We recognize our approach may incur slightly higher “information costs” by abandoning the simple proxy of family status, but this approach in practice is not apt to be more costly than the extant costs of verifying the reality of familial care-giving responsibilities.

Ordinarily, however, we think that harms to innocent third parties should be ameliorated through the institutions of distributive justice, not criminal justice. In an attractive polity, a child without a parent should receive state and communal aid regardless of whether the parent is not around due to sickness, death, or imprisonment. But where the state has failed its obligations of distributive justice, it would not be unreasonable to allow courts to tailor the punishment of caregiver offenders in a way that mitigates third-party harms without simultaneously elevating the offender’s status in violation of the principle of equal justice under law.

Time-Deferred Incarceration

For that reason, and assuming the crime was severe enough that some form of incarceration is deemed necessary, it may be appropriate for legislatures to authorize greater use of time-delayed sentencing to offenders with irreplaceable caregiving responsibilities. Under this proposal, then, if an offender is the irreplaceable caregiver for children, the offender in a time-delayed sentencing scheme would defer his incarceration until after the children reach the age of majority or until alternative and feasible care can be arranged. In the case of caring for aging parents or ill spouses, the incarceration may be delayed until the person receiving the care is deceased, improves in health, or is able to obtain care from another person or entity.

During the period that the incarceration is deferred, the offender would still be punished through the imposition of supervised release conditions. For example, the defendant’s freedom of movement would be dramatically limited so that only work and necessary chores (i.e., taking one’s child to the doctor) would be permitted. Electronic bracelets or other tracking devices could be used to ensure compliance. Additionally, during the time of deferral, the state could attach extensive community service obligations or other release conditions, such as drug testing. Failure to abide by the conditions would lead to more severe punishment than would be experienced absent the deferral of the sentence to minimize possible exploitation by the defendant.

Of course, as we alluded to earlier in our two previous posts, we are also worried about the ways in which the criminal law unreflectively reinforces biases in favor of heterosexual and repro-normative family units. Our view is that if it is made available, then time-deferred incarceration should not be restricted to only those giving care to those with a blood relationship or recognized marriage. That would deny the dignity of thick care-giving relationships in a number of contexts (gay families, for instance) that also warrant the liberal state’s equal respect and concern. Thus, in our view, if the offender has been in a voluntary and established relationship of caregiving, then that should be the critical issue.

As you can see, there are many issues when it comes to finally implementing the mottoes of those who wish to promote families. In the criminal justice sphere especially, privileges and burdens are distributed without a whole lot of careful thinking. Our book is an effort to start thinking about what we are doing when we too quickly use family status in our criminal justice system.

Our Second Freaky Post: Fugitives, Family Status and Criminal Justice,

Today, Ethan, Jennifer Collins and I have a second post up on the NYT's Freakonomics Blog, following our earlier post the other day about our book Privilege or Punish. I've reprinted the post after the jump. Feel free to weigh in with comments here or there.

Last week we featured the first of three guest posts by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; andJennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request.

Here is their second post.

Harboring Fugitive Family Members
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Following up on our earlier introductory post about our book on criminal justice and the family, we thought we’d start here with an examination of the same topic that initially sparked our interest in the intersection of criminal justice and the family — namely, how the law treats persons who refuse to cooperate (or actively interfere) with law enforcement on account of trying to protect a family member.

From an article in The Flint Journal:

Kelley Thomas’s 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad’s doorstep on E. Lorado Avenue in Flint, Michigan. Now, Thomas has been charged with harboring a felon. What’s a parent to do? It’s a difficult question, even to Genesee County ProsecutorDavid Leyton. “The fact that he’s the father was discussed by my staff, and we will take that into consideration as the case progresses,” Leyton said. “It’s hard to turn your back on your own flesh and blood.”

The stories of Kelley Thomas and David Kaczynski, the man who helped police apprehend his brother, the Unabomber, are just two of the better-known examples of family members grappling with the dilemma of whether to turn a family member over to the authorities.

In California, a police sergeant was suspended for helping his son evade arrest after committing a series of bank robberies. In Louisiana, a sheriff’s deputy helped his son flee the jurisdiction after alerting him that warrants had been issued for his arrest on child pornography charges. In Minnesota, a mother arrived home just after her son had shot and killed an acquaintance in her kitchen. Instead of calling the police, the mother helped dump the body in an alley and clean up the bloody crime scene. These demonstrations of family loyalty trigger significant media interest, perhaps in part because those who cooperate with law enforcement are often called “snitches” and might be regarded as people who violate “the taboo against turning on one’s family.”

Remarkably, in 14 states, the prosecution of family members for harboring fugitives is not an option, regardless of the nature of the crime or the extent of the family member’s involvement. These states typically exempt spouses, parents, grandparents, children, grandchildren, and siblings from prosecution for providing assistance to an offender after the commission of a crime “with the intent that the offender avoids or escapes detection, arrest, trial, or punishment.” (For those wondering, there is no federal law that provides a family member with an exemption from prosecution.)

In addition to these 14 state exemptions, an additional four states reduce liability for an immediate family member but do not exempt them from prosecution entirely.

Florida’s statutory exemption for family members is an interesting example. It forbids prosecution of spouses, parents, grandparents, children, or grandchildren for helping an “offender avoid or escape detection, arrest, trial, or punishment,” with one important exception; the exemption does not apply if the primary offender is alleged to have committed child abuse or murder of a child under the age of 18, “unless the court finds that the person [claiming the exemption] is a victim of domestic violence.”

Rationales in Defense of the Exemptions

What might be said on behalf of these statutes? First, legislators might think it “is unrealistic to expect persons to be deterred [by the possibility of criminal prosecution] from giving aid to their close relatives.” Under traditional Benthamite sentencing considerations, criminal punishment would therefore be unwarranted as a deterrent because it would be deemed ineffective in any event. Second, perhaps such statutes are “an acknowledgement of human frailty.” Under this view, legislatures have simply recognized that the bonds of familial love will inevitably trump any perceived obligation to the state. A third rationale is the one expressed by a Florida court: “society’s interest in safeguarding the family unit from unnecessary fractional pressures.”

Our View (Against the Exemptions)

Once we analyze these statutes under the framework defended in our book, however, we can see why these rationales are unpersuasive. In short, they fail to account for four important, and to our mind, supervening considerations.

First, the exemptions obviously contribute to a fundamental oddity, indeed an unwarranted disparity: close friends who provide assistance face prosecution, while family members do not. Perhaps even more troubling, the statutes sweep with too broad a brush in another regard as well: they protect those family members who might never have previously enjoyed a meaningful relationship with the primary offender but simply came to the aid of a relative when asked for assistance after the commission of a crime. Moreover, the laws are written only to protect those in traditional state-sanctioned familial organizations.

Further, these exemptions have patriarchal origins. Historically, the focus of these exemptions at common law was to exempt wives from liability for following their “duty” by shielding their husbands. Today these statutes have been drafted largely in gender-neutral terms by extending their protection to other immediate family members, so perhaps they should not be invalidated on the basis of their patriarchal roots alone. But if not crafted carefully, these exemptions may serve to shield from prosecution those who commit crimes in the home against other family members

Our strongest reservations, however, have to do with how these exemptions impede the core functions of the criminal justice system: the imposition of accurate and adequate punishment and the protection of the public from crime. In terms of accuracy, these exemptions do a different kind of mischief than threatening our ability to sort the guilty from the innocent; they facilitate a fugitive’s escape from punishment entirely. Allowing an individual to obstruct justice by hiding a family member obviously frustrates the critical task of capturing guilty offenders. Moreover, this immunity is granted without regard to the heinousness of the underlying crime: the exemption is generally granted whether the fugitive is a forger or a murderer.

While the government’s decision to prosecute someone for harboring a family member fugitive might pose significant stresses upon the defendant’s family, the responsibility for that burden would seem to lie squarely on the shoulders of the family member who commits a crime or decides to enlist his relatives to assist him in escaping adjudication or punishment for his illegal activities. Moreover, while we understand that citizens might agree that it is a difficult choice to turn away family members at a moment of need, we need to recognize that the fugitive might have already wronged, or might pose a future threat to, other persons and other families. Their interests, and the public’s interest, in having fair punishment accurately imposed should be respected too.

Finally, these statutory exemptions create perverse and dangerous incentives that Freakanomics blog readers should appreciate. In a state with a family exemption, there is no reason for a defendant to commit a crime unilaterally; he has every incentive to corral close family members to help him conceal evidence and hide from the authorities because those family members face no criminal consequences for their actions. Why should we create an incentive for a defendant to recruit accomplices and thereby increase the chances of success for his criminal venture? As the Supreme Court recognized 40 years ago, “concerted [criminal] action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”

For these reasons, we think these exemptions based on family status are bad policy. Are we right? Feel free to weigh in on the matter.

Sheila B. Scheuerman on Markel's "Retributive Damages"

Somewhat randomly, I just stumbled across this new essay on the Legal Workshop by Professor Sheila Scheuerman that takes my "Retributive Damages" piece in Cornell to task for a) conjuring a scheme that does not resemble punitive damages, and at the same time b) ostensibly suffers from due process questions arising from the SCT's punitive damages jurisprudence.  Hmmm.  

After the jump, I've reprinted her critique. I'll try to work up a response and share it next week. Though I guess the title of her response suggests something like I'm Alice in Wonderland, I'm nonetheless very grateful to Prof. Scheuerman for the attention she's paid to my work. I hope it withstands her scrutiny, at least when viewed in conjunction with the second piece in the series, How Should Punitive Damages Work?, which came out in final form a couple months ago. If you've read my piece(s), feel free to weigh in on the matter in the comments. Have a good weekend!

Haberman et al on Madoff

Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009
NYC
Is 150 Years Appropriate, or Just Silly?
By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss’s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. “It prompts in some people a lack of respect for the system,” Professor Cohen said. “Somebody has to be asking, ‘What is that about? What are we really thinking?’ ”

“It’s putting out something that is obviously false and fake to everybody,” he added, “and why are we doing that?”

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims’ comments and in the “boil him in oil” tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is “a dangerous factor to focus on in many cases,” said Dan Markel, a law professor at Florida State University. “It introduces a variable that is highly contingent on luck and fortuity to drive sentences,” he said, and it may steer the courts away from “considered assessments” of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims’ desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about “a tone and culture that says, ‘Hey, if the victims are really ticked, let’s give them their due.’ ”

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. “This is a blood lust,” he said, “but it’s a setting in which if ever a blood lust was justified, this was it.” He added, “This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.”

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it’s no longer about Bernard Madoff, or even concepts like retribution and deterrence. “We’re making a statement to ourselves about the kind of people we are,” he said, “and what we will not accept.”

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 

I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.

   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Some Thoughts on the Book-Writing Sentence

As promised earlier in the week, I thought I'd share some reflections on the unusual sentence Judge Urbina imposed on an offender convicted of lying to the feds: namely, that he must, among other things, write a book about what he's done.  I did an interview with Ashby Jones over at the Wall Street Journal Law Blog, the substance of which is posted here, and which I'll reproduce after the jump.

If you’ll indulge us, we’d like to circle back to a story that broke earlier in the week that we touched on briefly here. In short, on Monday, a federal judge in Washington, D.C., Ricardo Urbina, sentenced a former senior pharmaceutical executive to write a book.

According to the NYT story on the sentence:

Earlier this year the executive, Dr. Andrew G. Bodnar (pictured), a former senior vice president at Bristol-Myers Squibb, had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case. Dr. Bodnar must also pay a $5,000 fine.

The NYT story notes that it’s not the first time Judge Urbina has issued an unconventional sentence. In 1998, he sentenced a Washington lobbyist who had pleaded guilty to illegal campaign contributions to write a monograph and distribute it to 2,000 other lobbyists.

But we got to wondering about Urbina’s sentence — whether it has broader historical precedent, whether the punishment is likely to serve its purpose, and whether it’d be a good thing to see more of these creative sanctions. With that in mind, we checked in with Dan Markel, a law professor at Florida State University and one of the people behind Prawfsblawg, which has long been part of our daily reading. Markel has written extensively on the topic of punishment and is the author of a new book, along with Jennifer M. Collins and Ethan J. Leib: Privilege or Punish: Criminal Justice and the Challenge of Family Ties.

Hi Dan, thanks for taking the time. Judge Urbina’s sentence on Monday struck us as strange and provocative. Are there historical precedents for sentences like this?

Certainly there have long been alternatives to incarceration, some of which have been creative and designed to induce guilt or moral education; others that are simply meant to publicly shame and humiliate.

However, even with shaming punishments, when they were used in the colonial or post-colonial era, there were often points at which a community would hold a sort of reintegration ceremony, in which the person held in public scorn would be welcomed back into the community and told, in so many words ‘Go, and sin no more.’ I think that aspect of reintegration has been lost, though, in most modern shaming punishments.

And are these types of punishments coming into favor — or has their day passed?

I think they have had a bit of a resurgence since the early 1990s, but the evidence is largely anecdotal. Back then, some academics like Yale’s Dan Kahan became proponents of shaming punishments because they — rightly, in my opinion — thought judges should find alternatives to incarceration for many nonviolent offenders. Shaming got a quite a lot of exposure more recently in 2004, when the Ninth Circuit, in a case called Gementera, upheld, despite a strong dissent by Judge Hawkins, a trial judge’s imposition of a supervised release condition in which a mail theft offender was ordered to stand outside a post office with a sandwich board sign that read ‘I Stole Mail; this is my punishment.’ That case is now in a lot of criminal law casebooks.

Since then, at least in the academy, there seems to be a bit less support for shaming sanctions.

Okay. So what exactly is “shaming” about Judge Urbina’s sentence?

Actually I see this sentence less as a “shaming” sentence and more as what I’ve referred to as a “guilting” punishment. A guilting punishment is morally educative and is focused on having the defendant realize what he or she did wrong and why it was wrong, rather than exposing him to public ridicule or humiliation, which is a signal feature of shaming punishments. Writing a book can basically happen in private and there’s no risk that a lynch mob will form to threaten the state’s monopoly on punishment here.

Judge Urbina doesn’t seem to be requiring that the book be circulated widely — it seems to just be a long essay written to the judge, the point of which seems to be to make the defendant think about what he did and why it was wrong and why this type of act — lying to the government about something that could affect public health — shouldn’t be tolerated.

It seems like there’s a continuum between “shaming” and “guilting” punishments, right?

Sort of; I think there’s a continuum of how severe shaming can be, but I think guilting is different. Certainly the wide exposure associated with the imposition of a guilt punishment can incidentally shame someone, but that’s not really the point of the sanction imposed here.

Judge Urbina’s sanction here strikes me as more “guilting” than “shaming.” After all, there’s no state authorized attempt to hold the defendant out for humiliation and no invitation of the public to participate in that scorn the way there was in the Gementera case. In my scholarship, I’ve taken a strong stance against shaming punishments, largely because often they strike me as having to do more with vengeance than with impartial retribution. Judge Urbina’s punishment doesn’t strike me as particularly vengeful.

So you’d be okay with seeing more of these types of “creative” punishments?

I would, but with some caveats. First, I’d have some systematic concerns. I wouldn’t want to see the benefits of these types of sentences conferred only on people of a certain race or class who seem especially able to the court to be able to engage in book writing while poor folks are presumed not to have anything interesting to write or say. In other words, I wouldn’t want to see the “book-writing” sentence given only to those defendants who own a certain level of literacy or certain gifts of language.

Second, remember that there’s an important rationale behind the initial passage of the federal sentencing guidelines: namely, to try to reduce unwarranted disparity such that people who commit similar crimes are treated roughly similarly. I think if you see a proliferation of these types of creatives sentences, you run the risk of imposing sentences that vary too much across cases. That concerns me a little too.

But here, it doesn’t strike me as that much of a problem, partly because [Dr. Bodnar] was charged with a misdemeanor. I think it makes more sense to allow more discretion to judges when it’s a non-severe offense and the punishment imposed is relatively modest too.

And what about the punishment itself — having to write a book? Does it strike you as an effective punishment?

Standing alone, no, I don’t think it’s particularly persuasive. My concern with it, standing alone, is that the punishment might not be sufficiently condemnatory. Punishments for wrongdoing need to condemn, and to condemn, sentences need to register as setbacks to both the defendant and the public.

However, I think the sanction, once it’s coupled with the other measures Judge Urbina imposed [two years' probation and a $5,000 fine], that could be sufficiently condemning. And that could be useful. My concern is that you could undermine the very point of a punishment by just allowing someone to write a book, from both deterrence and retributive standpoints.

So you’d generally be okay with these types of punishments, so long as they’re applied fairly and consistently and achieve the goals associated with sentences?

Right. I’m supportive of guilting punishments when used smartly and fairly. We definitely use incarceration too much and for periods of time that are too long, especially for people who don’t pose physical harm to the community.

That said, if these are going to pick up, they need to be calibrated. The sentencing commission needs to weigh in on this, at least to ensure there’s a check on what judges are doing. Congress, too. Both need to be working in concert with the federal judiciary.

Very interesting stuff, Dan. Thanks for taking the time.

My pleasure.

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

A Bit More Bubbie Blogging and an Amichai Poem

The funeral this afternoon was brief but powerful, a testament to a life well-lived. After the jump are some reflections I had the chance to share about my extraordinary grandmother.

Bubbie Helen was a woman of valor, and thus by our tradition, someone to be cherished especially and deeply so. But more than her valor during a life of hardship, her life was marked by its incessant buoyancy of spirit. Her life, which we celebrate and commemorate today, was audacious: for how many others do we know who only lived with joy, optimism, and gentleness despite a life in which others would find turmoil, sadness and tragedy?

 

 

Piha patchah v'chochma v'torat chesed al l'shonah

She opens her mouth in wisdom, and the lesson of kindness is on her tongue. 

 

This line from Eishes Chayil reminds me of Bubbie Helen. Someone who gained wisdom over the years through grueling encounters: leaving her parents behind in

Europe

as a teenager; an immigrant to a new country and new language; an early widow of Sam. Twenty one years as a single mother before she found her second life-partner, Maurice. Working in the shmatta business many long years, and doing so as a woman, as a mother, sister, and later a stunningly effective and loving grandmother.

 

I will leave to others the task of describing the many contributions she made to our community and our people. I have only the comparative advantage of the perspective of a grandson who was best known to her, and many in this room, for his juvenile banditry – most often launched at her expense when I was a toddler chasing her with brooms and various handheld appliances.

 

As her grandson, I remember a few things distinctly.  First, my banditry was often followed by the threat (sometimes credibly exercised, but always justly so) that a putch in tuches geht arein in kopf.  And second, the imperative: Zei a Mensch! (Also said as: “It doesn’t matter whether one’s a doctor or lawyer, the important thing is: Zei a Mensch.)

 

It’s the second instruction toward menschlichkeit that I still find most powerful and in some sense most mysterious.  Most powerful because being a mensch set a standard for conduct that was high but not impossible.  It put an end to most dither and blather. Put simply: what would a decent and thoughtful person do? If I gave that matter at hand some consideration, and applied this standard, I found I often reached a pretty good resolution to whatever squabble I had somehow embroiled myself in. 

 

But over time, and especially during my twenties, I found the instruction to be a mensch was not always a self-executing concept; I wish I had Bubbie closer to ask her guidance. In matters of love, for example, one might find oneself puzzled by the demands of menschlichkeit. Would a mensch try to make one foundering relationship last a little longer or determine that it was time to cut things off?  In other spheres I often wondered: how is a mensch supposed to respond to those who unambiguously wrong him? With proportionate retribution or with disproportionate mercy?

 

But even as I struggled with this Yiddish Yoda-like instruction, I knew that, at least with matters of courtship, the kind of person I should be with was someone that would pass muster with Bubbie Helen.  I am saddened that my beloved, and now six and a half months pregnant, wife Wendi only had a chance to see Bubbie Helen as Bubbie Helen herself was seeing the dusk of her days.  But even during the period of that dimming light, Bubbie Helen greeted us with reliable joy and ebullience -- and songs of love and hope, peoplehood and peace.

 

That is how I will remember her.  Never slavish or servile to people or conventions but duly respectful of tradition; quick to kindness, even to strangers; willing to work, toil, and mend our broken world one day and one person at a time, with song and spirit to accompany the journey even through the darkest hours. This woman called Mammele, Khashki (the diminuitive of her Hebrew name Khasia), Bubbie, Bubbles – she was a ray of bright, shining light. 

 

A great Irish poet grieved upon his mother’s death: “The space we stood around had been emptied/Into us to keep.” Into us now pour our memories of Bubbie Helen.

 

I will always love her, and be inspired and consoled by the blessings of those radiant memories.

 

I’d like to close by reading one poem from my rebbe, my poet, Yehuda Amichai—it seems like Bubbie Helen might have enjoyed this, might have even shared these words were she able to right now.

 

I, May I Rest in Peace

 

I, may I rest in peace – I, who am still living, say,

May I have peace in the rest of my life.

I want peace right now while I'm still alive.

I don't want to wait like that pious man who wished for one leg

of the golden chair of

Paradise

, I want a four-legged chair

right here, a plain wooden chair. I want the rest of my peace now.

I have lived out my life in wars of every kind: battles without

and within, close combat, face-to-face, the faces always

my own, my lover-face, my enemy-face.

Wars with the old weapons – sticks and stones, blunt axe, words,

dull ripping knife, love and hate,

and wars with newfangled weapons – machine gun, missile,

words, land mines exploding, love and hate.

I don't want to fulfill my parents' prophecy that life is war.

I want peace with all my body and all my soul.

Rest me in peace.

Deaths and death.

Today is officially the publication date of my new book with Ethan and Jennifer but the publisher's selection of this date is not especially auspicious so I'll share some exciting news about that later in the week. 

It's not just Hitler's birthday; weirdly enough, it's also Yom HaShoah, or Holocaust Remembrance Day. It is not always the same day--this year it's kind of flukey that they coincide. But in service to the special day, let me point you to some of the extraordinary stories over on Volokh by David Bernstein and Orin Kerr related to the Shoah.

I was supposed to be co-officiating at a Yom HaShoah remembrance this evening in Tallahassee at my local shul, but I had to withdraw because of sad news closer to home and closer to now. After a full and blessed life, my wonderful grandmother, Helen Lapidus Isakson, died at the age of 95 the other day, so I'm now in Montreal for the funeral and the beginning of the shiva period. The obituary notice appears after the jump. I'll probably have some more to share about the life of this extraordinary woman later on this week. May her memory be a blessing and inspiration as mighty as her life was.

ISAKSON, Helen (nee Lapidus). In Toronto, on Saturday, April 18, 2009, at the age of 95. Beloved wife of the late Samuel Isakson and the late Maurice Caplan, both of Montreal. Beloved mother of Robert and Carolyn Isakson of West Hartford, CT, Ruth (Isakson) and Phil Markel of Toronto. Cherished and adored grandmother of Aubrey Isakson, Loren and Yardena Isakson, Shelly Markel and Ian Freedman, Dan Markel and Wendi Adelson. Great grandmother of Michal, Ari, Roni, and Shireen. Treasured sister of Lazar Lapidus, Harry Lapidus, the late Edith Fagin and the late Esther Zvi. Helen’s devotion to her children was boundless. Widowed at 39 years of age, she dedicated her life and love to their welfare, education and spiritual well-being. She later remarried at 60 years of age to Maurice Caplan. Helen had an extensive network of friendships, all of whom were touched by her positive inspiration. She was a committed lifetime member of the Pioneer Women of Canada and Hadassah. Helen was an avid supporter of Israel and local community charities. She was President of Allure Sportswear Company from 1954-1977. The family wishes to thank Gean Evans and Dorothy Hodgson for their exceptional and compassionate care that was given to Helen, and to express their appreciation to the Baycrest staff. Funeral service from Paperman & Sons, 3888 Jean Talon St. W., on Tuesday, April 21 at 3:00 p.m. Burial at the Adath Yeshurin Congregation Section, Back River Memorial Gardens Cemetery, Berri St. Shiva at 5720 Rembrandt Ave. #301, Cote St. Luc, from 2-4 and 7-9 p.m. daily. Contributions in Helen’s memory may be made to the Baycrest Foundation, 1-800-223-2087, or to the Canadian or American Alzheimer societies. 

Valuing Deaths Differently

Via the SSRN "spam," I just came across Kip Viscusi's new paper on "Valuing Risks of Death from Terrorism and Natural Disasters."  Here's the abstract:

This paper uses a random utility model to examine stated preferences for the valuation of public risks of fatalities from terrorist attacks and natural disasters. Traffic-related deaths serve as the common reference point in two series of pairwise risk-risk tradeoff choices. Even after taking into account differences in respondent risk beliefs, the nationally representative sample values preventing terrorism deaths almost twice as highly as preventing natural disaster deaths and at about the same level as preventing deaths from traffic accidents, which pose greater personal risk. Education, seat belt usage, political preferences, and terrorism risk beliefs affect valuations in the expected manner.

As Viscusi rightly points out, risks of terrorism-related deaths are rarely risks that are the product of market options (e.g., I should have bought that Volvo). I wonder if we can say the same is true for deaths resulting from natural disasters, where "choices" to live in "particularly sturdy housing" or dangerously located areas (near the coast) may affect the risks at issue. For what it's worth, I think the major reason reduction of terrorism-related deaths is justifiably prioritized has to do with the sense that "Terrorism attacks represent an attack on the country and involve commodity attributes that go beyond the number of lives lost." It seems to me that this one sentence is the heart of the matter (though it is curiously under-examined in the paper based on my admittedly quick read.)  In any event, Dan Solove and I batted around some of these issues here, which if you're interested in the social policy issues, you may want to check out.

SCOTUS Digs Philip Morris

Thanks to Adam Richardson, one of my RA's and fave students, I just got word that the Supreme Court dismissed cert on the Philip Morris punitive damages case as improvidently granted. It was a one line per curiam statement, available here. Lyle Denniston of the indispensable SCOTUSBlog has this brief report.   I'd be curious to hear rank speculation about why the case got DIG'd in the comments. In the meantime, here's a snippet of Lyle's work, and some links to my own recent and forthcoming work in the area of punitive damages. 

Mrs. Williams’ lawyers told the Court this time: “Twelve years after the tragic death that gave rise to this action and nine years after the lengthy trial of this case, with four appellate reviews in Oregon, and five years after the first of three trips to this Court, it is time for this litigation marathon to end.”  The marathon, however, may not be over yet.  Philip Morris, at an earlier stage in the case, reserved the right to challenge a state law that requires that 60 percent of a punitive verdict goes to the state of Oregon. The company’s argument against that is that Oregon has achieved all of the proceeds it is entitled to have under the global settlement of a group of states’ lawsuit against the industry. Mrs. Williams’ lawyers, backed by the Oregon attorney general, have argued that the tobacco settlement only applied to that specific case, and thus would have no effect on the verdict in her case.   Philip Morris must take an affirmative new step to revive this issue, according to lawyers involved. The verdict stood at nearly $143 million a year ago when Philip Morris filed its latest petition in the Supreme Court.  Under Oregon law, the interest rises at 9 percent a year, indicating that the award is now worth something around $156 million.  Mrs. Williams’ 40 percent share would thus appear to be somewhere above $60 million.  (The compensatory award of $521,485.50 has not yet been paid, because Philip Morris’ various appeals sought a new trial on the entire verdict.)

The Schlagfest in Geo. L. J. and a mild defense of SSRN emails...

As some of you saw on Co-Op the other day, there's an unusual exchange going on in the pages of the Georgetown LJ this month.  Pierre Schlag has written a(nother) polemic against legal scholarship, and folks as varied as Daniel Ortiz, Richard Weisberg, Richard Posner and Robin West respond. Putting aside the merits of the exchange for now (which I hope to revisit at some point later), I wish to make two small points, indeed, in a phrase I owe to Bob Weisberg, they are thunderously trivial points. [And here it is, I've gone and wasted a perfectly good hour drafting these here in the post...]

First, I couldn't help note that Professor Robin West's response to Professor Schlag is titled A Reply To Pierre. Throughout, and without explanation, Professor West refers to Professor Schlag as "Pierre." Perhaps they are friends. Perhaps P. Schlag implored R. West to call him by his first name given the informality of P. Schlag's paper. In any event, I simply note its apparent and unexplained unusualness, and wondered if it was part of a subtle anti-subordination campaign.  Indeed, although I'm sure it was written well-beforehand, the piece appears on the heels  of New Yorker magazine critic Joan Acocella's letter in the New York Times Book Review this past Sunday, entitled "The Name is O'Connor." In the letter, Acocella decried the habit of the NYT publishing reviews where men are referred to by their last name but women are referred to by their first name.  Of course, it's NOT as if Prof. West refers to men by their first name and women by their last name in this piece.  Still I couldn't help but wonder about the casualness of the reference, the lack of its explanation, and whether that casualness can be, all things considered, normatively justified, especially in the context of a paper defending "normativity" as a law professor's pursuit -- a defense I'm very sympathetic to for reasons of stark self-interest since I'd be out of a job if normativity were verboten. I did once write a piece of juvenilia contending that students and faculty should be on a first name basis with each other. So I am sympathetic to the move, but I wonder if it's a move meant to achieve something else aside from providing a handy and quick referent. [I contacted Prof. West about this and she indicated that it was not intended to subvert or undermine, but rather that since the Schlag piece was informally written, her informality was designed to mirror it and suggest that her critique was intended in a friendly manner also. So that settles that...]

One more trivial point.  (And I hope no one reads this as picking on Professor West, because there's lots more weirdness in Professor Schlag's essay itself, the substance of which Prof. West deftly observes in her remarks, and which I largely endorse by incorporation. Moreover, during the course of writing this post, I came across this absolutely fascinating essay on sex, law, and consent of Prof. West's, which I plan in due course to praise and address a bit more on the merits. )  

In any event, in footnote 8, I noticed her reference to SSRN emails as spam.  Prof. West writes:

When SSRN pops up in the subject line of my emails, I hit delete,
without even a glance, and without even thinking twice. Of course that stuff is spam. It would be nice, in fact, if a sensitive spam filter could select and delete these SSRN emails so I wouldn’t have to. I’m sure I’m not alone in this. Scholarship is now not just like spam [in the Schlagian sense that it is un-nutritious and deadening], it is spam. [italics in original]

I confess I'm puzzled as to why a dean for research (at Georgetown) would say this. First, one opts into receipt of SSRN emails, so they're not the spam of the generally "unwanted" Cialis pill or Russian mail-order bride variety, even though on a particular day, an email from our friends at SSRN might be part of the information overload under which we sometimes labor.  And if one couldn't motivate oneself to un-subscribe from SSRN's mailings, there are in fact sensitive email spam filters that could select and delete these emails: try a filter that deletes anything with publish.ssrn.com in the "from" email address.  Finally, just because the emails on a given day may seem unwanted (even if they are not technically uninvited), that  doesn't make the underlying articles which are linked to in those emails (or any other scholarship) spam, let alone the moral equivalent of spam (qua bad meat or uninvited mass emails). This might be a space where one *should* shoot the messenger but spare from punishment the "message." Indeed, this claim of equivalence between spam and scholarship seemed jarringly inconsistent with West's otherwise illuminating defense of the potential (if not the actuality) of normative legal scholarship, and the exposure of the corresponding shortcomings in Schlag's piece. [After writing this, I showed it to Prof. West, and she said her footnote was intended to ironically make the point that while scholarship is not spam, SSRN floods the market with scholarship and thus, like any commodity which floods the market, the numerous SSRN emails risk bringing down the scholarship's value.  I don't think I buy the argument, but do I share Prof. West's other concern that  these points should not overwhelm the discussion on the merits of the more fundamental critique Schlag makes about legal scholarship, so I'll leave it here, with an invitation to those who want weigh in on that more substantive debate to do so in the comments.] 

Actually, one last point, trying to tie together the essay about consent and sex mentioned above and the relationship we have to these SSRN emails.  In her essay on sex, law and consent, Professor West adverts our attention to the distinction between the unwanted and the unwelcome, a distinction arising out of the literature on sexual harrassment. Perhaps the SSRN emails are unwanted but welcome/tolerated (ie, occuring in a relationship where the sexual attention is welcomed or permitted more generally), and this stands in contrast to the emails selling viagra, which are both unwanted and unwelcome.  If this distinction holds, we might wonder whether the legal scholarship Schlag derides is simply unwanted, or both unwanted and unwelcome...

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Can Punitive Damages Law Inform the Copyright Infringement Litigation?

I'm just now getting a chance to listen to UCLA prawf Doug Lichtman's really cool podcast on the relationship between punitive damages law and the copyright infringement litigation. I haven't gotten to the point yet where my voice pops up, which is all for good since I often cringe at the playback of my recorded voice.  Here's the summary of the podcast, which is part of Doug's ongoing IP Colloquium series: 

Joel Tenenbaum looks a lot like every other defendant who has been accused by the music industry of illegally sharing copyrighted work online, but with one key difference: his defense attorney is Harvard Law School Professor Charlie Nesson, and Nesson is out to turn his case into a public referendum not only on the music industry's efforts to enforce copyright through these direct-infringer suits, but also on the copyright rules that make the industry litigation possible.
In this program, we engage Nesson's key arguments, focusing especially on Nesson's claim that copyright law's statutory damages regime runs afoul of constitutional protections against excessive and/or arbitrary civil damages awards.
Guests include Professor Nesson himself; Steven Marks, General Counsel for the Recording Industry Association of America; and three of the leading academic experts on punitive damages: New York University Professor Catherine Sharkey, Florida State Professor Dan Markel, and George Washington University Professor Thomas Colby. UCLA Law Professor Doug Lichtman moderates.

Will the election for Morgenthau's successor fail us?

Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?

I was pleased to get some aid on the subject just this morning via a SSRN bulletin.  Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.

Here's the abstract.

How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? 

There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections - described here for the first time - reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

Final and New Drafts

I hope everyone had fun celebrating Valentine's day, or not, if that's your preference. Among other things, I had the chance to see the Clint Eastwood movie, Gran Torino.  I thought the acting was a bit forced at times (I'm not sure growling counts as acting), but the movie crescendoes in a very powerful way, especially, I imagine, for fans of Christology. Eastwood's movie-making the last decade or so has been reliably beautiful and so this might be one worth visiting the cinema for, rather than waiting for Netflix. I have it on good authority, by contrast, that Confessions of a Shopaholic and He's Just Not That Into You are ones that can wait until their release on cable.

In any event, I thought I'd just post a quick note to say that the final version of Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction is now available on SSRN or in your local January 2009 issue of the Cornell Law Review.  I will at some point soon be writing a short version of it for the new collaboration among law reviews called The Legal Workshop.*  I hope and invite others to respond to the final version in that forum (or elsewhere).  I've also just posted on SSRN a new working draft of the successor piece to Retributive Damages, entitled "How Should Punitive Damages Work?"  This piece will be coming out later this spring and I only have a couple weeks left before I have my last chance to touch it again, so if there are any folks who have written on or near the subject and wish to weigh in with comments or suggestions for further reading/citations, I would welcome your input via email. 

Last, I've also posted a newly revised and working version of Executing Retributivism: Panetti and the Future of the Eighth Amendment up on SSRN. As with the other working paper, I welcome comments by all and especially from those who have worked in or near the area (of the death penalty, Eighth Amendment generally, and/or punishment theory) and might wish to provide comments or suggestions for further reading and citations (including your own!). My apologies in advance if I neglected to address your work or those of your colleagues--please help me out before it's too late...

   

*This is what I heard about this new enterprise: Legal Workshop, a new online project, is a free electronic resource created and controlled by many of the nation's top Law Reviews, including the Harvard Law Review, the Stanford Law Review, and the NYU Law Review.  Its chief goal is to increase online exposure of published articles. For the Legal Workshop, all of our authors now prepare, with the help of the Executive Articles Editor with whom they are paired, a shortened version of their Article (1500-4000 words), without footnotes, analogous in style to a very brief essay or newspaper op-ed.

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

13 year-olds in prison for life...and the Eighth Amendment

In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape. The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.” At his trial, Mr. Sullivan was made to say those words several times. “It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.” The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

Sullivan's case is now winding its way through the courts; according to Liptak, his lawyers have recently petitioned the Supreme Court to determine whether a sentence to die in prison is a constitutionally compatible response to a non-homicidal crime committed by a 13 year old. (I tried a quick search for the cert petition but didn't find it; if anyone has it, please forward it along.)  My views after the jump.

My quick sense is that although the Court's Eighth Amendment non-capital proportionality review has been relatively stingy in light of Ewing v. California, 538 U.S. 11 (2003), this case would be a good candidate for reviewing and revisiting those principles and how they apply. For one thing, remember that Ewing was a recidivist with some serious priors (a robbery and several burglaries). He was a grown-up when he committed his crime, and he was eligible for release after 25 years under the 3 strikes rule. By contrast, Sullivan was barely a teenager, and as far as I can tell, without any priors. Justice Kennedy's concurring opinion in Harmelin, which enunciated the now-controlling framework for analysis in proportionality review of non-capital crimes, addressed a non-recidivist who was tagged for life b/c of 600+ grams of cocaine possession. While the defendant there wasn't able to get relief under the 8A (a pretty kooky outcome), at least there the defendant was not 13 years old when he committed the crime. One last point: normally the SCT would look to see if there's a split to resolve among the circuits before weighing in. But as Liptak points out, outside Florida there are no persons in prison for life without parole for non-homicidal crimes commited at the age of 13. In Florida, there's only one other person who fits that criteria, though his conviction involved attempted murder. The fact that Florida is an outlier here may be a good indication that by objective criteria this is a grossly disproportionate response. (Cf. Coker v. Georgia, where Georgia was an outlier with respect to executing rapists of "adult" women; the victim in Coker was 16--and married.)

I also think that in light of the communicative conception of retributivism that was embraced by a majority of the Court in its Panetti decision in 2007, there are certain restraints on punishment that the Supreme Court must embrace. As I argue in my forthcoming article on Panetti and the future of the Eighth Amendment, the Court's constitutional elevation of a communicative conception of retributive justice in Panetti has broad implications -- and beyond the capital context too. 

Punishment, under the Court's view now, requires that the defendant be a fit interlocutor for the communicative nature of punishment. The suggestion that a 13 year old satisfies that fitness requirement in the way that a mature adult does is difficult to accept. Moreover, by insisting on competence and guilt as jointly necessary criteria for punishment, Panetti entails a "negative retributivism" constraint on state punishment. That constitutional constraint supervenes on other legitimate penological objectives such incapacitation or general deterrence. Negative retributivism means that one can only be punished if one is guilty and only as much as one's offense reasonably permits by reference to (desert) or (what comparable offenders with comparable offenses receive); I recognize that the materials in parentheses are not identical, but I offer the second one as a way to care for evenhandedness across cases, which is an important feature of legal accounts of retributive justice. 

Thus, putting aside for now the very pronounced and reasonable concerns that he had a flimsy trial, Sullivan cannot constitutionally be punished in excess of what would be determined to be reasonably proportionate to the severity of his offense. Given that we punish adults with much more severe crimes and far worse records with far less severe punishments, both in and outside Florida, it seems clear to me that Sullivan should be able to raise these Panetti-inspired arguments with some success.  (Oddly enough, similar arguments of mine were found in Panetti's briefs to some effect). Of course, these are the claims that I think would follow from Panetti's reasoning, properly understood and extrapolated. I invite the lawyers and scholars interested in the scaffolding beneath these claims to read the article, a draft of which can be found here.

The Shaming of John Thain

In this morning's NYT, one of my favorite writers there, Clyde Haberman, goes to town on John Thain, the Merrill Lynch CEO who's been recently deposed.  I understand the sense of frustration and anger; indeed, I'm a shareholder in Bank of America, which bought ML late in 2008 and has since declined precipitously. So it's no surprise to see popular anger (like Clyde's) over reports stating that Thain spent $1.2 million

to redecorate his office — purchases like an $87,784 area rug, a $68,179 19th-century credenza, a $35,115 commode and an $18,468 George IV chair. The rug alone cost the equivalent of nearly two years’ pay for the average worker in New York State. 

As Haberman writes, "If anyone should blush, you’d think it would be Mr. Thain." But Haberman wants the Thains of the world to be held up to scorn and shaming, despite my efforts to persuade him otherwise. My recent arch-nemesis appears to agree:

"Folks like John Thain are perfect candidates for public shaming on billboards and in the press," Professor Calandrillo said. “Their good name is what allows them to succeed in business. Once that is stripped, they have little left.” Others in business, he added, may then think twice about their own actions.

Elsewhere in the Times, however, we also see this bit of reporting on Thain's apparent misjudgments. First, he's stated his plan to reimburse the company for the renovation, whose costs include some other rooms besides his office. Second, and more importantly, it appears the story about Thain's distribution of bonus money is more complicated than reports initially suggest. 

Another point of controversy was Merrill’s decision to pay discretionary bonuses to its employees just a few days before the sale to Bank of America closed — considerably earlier than such bonuses were paid out in years past. In the memo, Mr. Thain appeared to challenge Bank of America’s suggestion that Merrill alone was responsible for the earlier-than-usual bonuses. He said the timing, composition and size of the bonuses were all “determined together with Bank of America.” In the interview, he said that Bank of America even mandated that more of the bonus be paid out in cash rather than stock. Bank of America has countered with its version of the bonus affair, telling The Financial Times: “We never said we didn’t talk with them about it. But, in the end, it was their decision and they informed us of it.”

All this is to say that we'd be better off waiting patiently until all the facts are found before rushing to extra-legal judgments culminating in "stocks" and cyber-pillories. There's always time for cool recrimination later...

Update: Over at Co-Op, Danielle Citron notes with greater specificity the dangers of even the privately-instigated shaming punishments, alerting us to the fact that shaming the Thains of the world can be "particularly potent in our networked age: online and offline shaming can ruin reputations, produce privacy invasions, and lead to offline stalking and physical violence."  She develops that argument in much greater detail in a very interesting piece entitled Cyber Civil Rights, which appeared in the BU Law Review a few months ago and which you can download here.

Is the Obama Administration More Geek Friendly Than Any Previous Administration?

The title of this post was roughly the topic of conversation I had two weeks ago with a reporter from the UK's Times Higher Ed, just as I was headed to San Diego for AALS. Of course, by "geek friendly" I simply mean prone to use more academics instead of folks in the "real world."  At the time, my thought was the Obama administration would have more academics on staff in high positions than the Bush Administration, but it wasn't clear to me that there were more than, say, the number in the Clinton Administration. 

I remembered that Bush 43 had Yoo, Dilulio, Greg Mankiw, Glenn Hubbard and some other economists, as well as Condi Rice. None except Rice was a Cabinet officer and Rice seems like a "discounted" academic b/c immediately prior to her appointments as NSA and SecState, she was in academic administration for seven years. By contrast, and just off the top of my head, Clinton had Reich, Donna Shalala, & Larry Summers in Cabinet offices; moreover, Laura Tyson, Drew Days, and Walter Dellinger had senior non-cabinet positions too. And of course, 42 picked at least one former prof turned judge to SCOTUS (Breyer). I could be wrong; maybe among the lower levels of staff, there were as many academics on the Bush policy team as there were on Clinton's. But Clinton certainly seemed pretty open to having a bunch of profs nearby. The spirit of 43 seems in retrospect comparatively less ... prawfy--at least by my lights.

At least initially, it didn't seem like the Obama administration would be unusual prawfy compared to Clinton's.  But now, with two more weeks past, it seems like there is a decisively more prominent role for academics with 44.  This article in the Times Higher Ed, which quotes me, notes the following:

Robert Gates Secretary of Defence - former head, Texas A&M University

Dennis Blair Director of National Intelligence - professor of strategic leadership, Dickinson College and US Army War College

Lawrence Summers Chair of National Economic Council - former head, Harvard University

Elena Kagan Solicitor General - dean, Harvard Law School

Steven Chu Secretary of Energy - professor of physics, University of California, Berkeley and Nobel laureate

Leon Panetta CIA Director - distinguished scholar, California State; professor, Santa Clara University

Christina Romer Chair of Council of Economic Advisers - professor of economics, University of California, Berkeley

Dan Tarullo Federal Reserve Board - law professor, Georgetown University

Dawn Johnsen Head of Office of Legal Counsel - professor of law, Indiana University

The piece, however, leaves out a number of folks. Again, just off the top of my head:  Trevor Morrison, Alison Nathan, Neal Katyal, Austin Goolsbee, Marty Lederman, Dan Meltzer, Einer Elhague, David Barron, and ... Cass Sunstein. And did I read somewhere that Ken Mack is going to be the staff historian at or near the Oval Office? And that Orin Kerr will be nominated as a late-addition to the bench in a gesture to Republicans for passing the stimulus package? :-)

Of course, having academics around may not be an "unqualified human good."  But putting that aside, I'm curious whether those with a longer memory of history think there was a more prawf-friendly administration than the current one. Is it the case, as Dan Kahan "put it" recently in Spanish, that Durante la campaña, Obama decía que éste era nuestro momento, pues es exactamente lo que piensan los académicos: está hablando de nosotros? 

Yes we can...but should we?!

What on earth am I here for? Why, to bestow a token of appreciation for letting me sell The Purpose Driven Life in Aleppo, of course.

So, as I've blogged before, I don't always agree with Christopher Hitchens about the application of principles of charitable interpretation. But in two recent essays, Hitchens has persuaded me that Rick Warren, despite his ostensible virtues, is not the right person for the Inauguration, notwithstanding Paul's strong anti-anti-Warren post here.  The first reason, which is somewhat familiar, is Warren's anti-gay statements, put sharply into larger context by Frank Rich.  (I admired Rich's arch observation that "fighting AIDS is not a get out of homophobia free card.") But Hitchens, in his first Slate essay on the topic, pushes the let's-revisit-this-man's theology claim a bit further--so as to antagonize more than just gays and their supporters. With some evidence to underpin them, Hitchens asks the following questions about Warren's interior disturbances:

• Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?
• Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?
• Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee? 

I'm not overwhelmed by this set of questions. 

The first question would place a litmus test that would to my mind unduly intrude on Warren's liberty of conscience. If Warren's benediction is innocuous, it shouldn't much matter that he also holds unreasonable views of access to powers invisible. The second question reveals a guilt-by-association charge, which has, I think, proved itself to be an overplayed drama. Hitchen's third question seems to suggest that Warren's world-view could have some impact on Obama's foreign policy, but that's ... unlikely.  I don't think we've much basis for worry that Warren will exert influence on Susan Rice, Hillary Clinton, Rahm Emanuel, or the other advice-givers in or near the West Wing. 

The second essay by Hitchens, however, raises a more lacerating set of concerns than those posed by his religious views. They largely stem from things said during and after Warren's export business in eschatology to the Syrian dictator, Bashar al-Assad. Hitchens writes:

"Syria," [Warren] told his viewers back home by video, is "a moderate country, and the official government rule and position is to not allow extremism of any kind." This is a highly original way to describe a regime that is joined at the hip with the Iranian theocracy, that is the patron of Hezbollah in Lebanon, and that is the official and unabashed host of the fugitive Hamas leadership whose military wing directs massacre operations from Damascus itself. (One might also add that the Syrian Baath Party's veteran defense minister, Mustafa Tlas, published a book under his own name that accused Jews of using the blood of non-Jewish children for the making of those ever-menacing Passover matzos. I suppose it depends how you define extremism.)  ...

Our good pastor also found the time to tell his captive audience—if I may use such an unoriginal phrase in a literal way—that 80 percent of his countrymen opposed the administration's policy in Iraq. Assume yourself, dear reader, to be one of that possible 80 percent. Did you ever ask to be spoken for by Warren, who was a guest of a regime that sponsors al-Qaida infiltrators in Iraq, or to see him denounce the administration in front of an audience of Syrians that had no choice but to listen to whatever it was told? For shame.

No doubt there are synergies available that Obama should catalyze between Warren's minions and centrist and progressive minyans. That said, the selection of Warren is not well understood if only understood in instrumental terms, a point Paul trenchantly made. But along with that recognition must be alertness to the fact that the Who-should-bless-the-Inauguration question is not the same as who momentarily has the President's ear on certain issues. Indeed, it's precisely because the inauguration sparks the onset of a new era for the nation that the situation's optics must be examined carefully. And with the picture above, and the statements Warren made during and about his trip to Syria, well, let's just say that Warren's star has dimmed. 

Photo: AFP PHOTO/SANA/HO

Gershon, Antigone, Madoff, and Punishing Family Status

First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!

Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months. While still under the deluge of edits on various projects, I hope the situation will improve soon, and in the meantime, I wanted to quickly draw attention to one aspect of the Bernie Madoff scandal that's been of particular interest to me: the fact that he was turned in by his sons. There's still some question as to whether Madoff's Ponzi scheme was truly a work of solo endeavor, or whether he had to bring in others to help swindle so many of so much. Some folks might believe that the sons had to be involved also despite their involvement in facilitating the apprehension of their father. But according to a recent news account having to do with whether Madoff acted alone:

Investigators were also expected to look at the potential involvement of several Madoff relatives who worked for his firm, including his brother, two sons and others who worked for his various business entities. His wife has also come under scrutiny. To date, however, they also have not been formally accused of any wrongdoing. The law firm representing Madoff's sons, Andrew and Marc, released a statement saying they first learned of the fraud just days ago, when their father tearfully confessed, and immediately turned him in. The two are said to have worked predominantly in another division of their father's company, not in the secretive unit that handled investor money.

The story of Madoff's arrest intersects with some of the issues that motivated the project I'm doing with Ethan Leib and Jennifer Collins on the criminal justice system and the quirky role that family status plays in it.* When I initially started thinking about this topic some three or four years ago, it was largely through the prism of what I thought of as the Antigone problem: the conflict citizens (like Madoff's sons) have between loyalty to family members and duties to the state. As Ethan and Jennifer came aboard the project, we realized in concert that the site of conflict between family and criminal justice was more complex and layered than just the classic Antigone problem, and from that realization, we changed our focus over time to study the various ways the criminal justice system distributes both benefits and burdens to defendants based on their family status or family ties and responsibilities. The Antigone problem, crudely reflected in a way by the Madoff fraud bust, sort of fell away from being our sole object of study, and in fact, virtually recedes from focus other than playing a role in motivating dramatic interest in the connection between family, crime, and punishment.

In any event, I can now report that Punishing Family Status (PFS), the second part of our efforts which studies and proposes reforms to the burdens placed on defendants on account of family status, is now available in final form on SSRN and on Westlaw. (I've also just received my offprints; if you'd like a hard copy, please email me your mailing address, especially if you didn't receive my last batch of offprints.) PFS is the basis of a mini-symposium in the Boston University Law Review's December 2008 issue. The issue (and the offprint) includes a set of fascinating responses by our own Rick Hills and Michael O'Hear, and a reply by us. Btw, make sure you check out the BU LR December 2008 issue so you can also see Carissa Hessick's very interesting piece, which looks at the role of prior good acts in sentencing  -- more on that in another post perhaps.

*We just received the book proofs for this project, which comes out in a few months; you can pre-order it here at Amazon.

 

Executing Retributivism, redux

I'm home now from the autumnal delights of Falls Village, CT only to be hobbled by terrible sniffles just before class begins this afternoon. Alas, I'm not the Canadian I once was. In any event, I meant to get this up on the blog last week, but better later than never. For the Eighth Amendment fans in the audience, I have recently put up a substantially revised and expanded version of my article, Executing Retributivism, up on SSRN (and forthcoming this spring). There's still a good bit more work to be done toward the end (not to mention editorial work below the line throughout), but I have tried to improve and clarify the argument that Panetti v. Quarterman, a case the SCT decided in 2007, has substantial implications for the constitutional regulation of both capital and non-capital punishments, implications that have not been sufficiently appreciated so far.

To be more clear about my intervention, I am not arguing that the holding in Panetti requires the end of capital punishment or the end of the warehousing of the mentally ill in prisons, to name just two. Rather, my claim is that the ratio decidendi of the decision should lead lower courts and defense lawyers to revisit the rationales currently used to justify some of these practices, which are, to say the least, problematic from a retributive perspective. As there is still time to revise in light of feedback, I'd be grateful for anyone's off-line thoughts.

I have also put up new drafts of some other works in progress: Retributive Damages; How Should Punitive Damages Work?; and Punishing Family Status (with Ethan and Jennifer Collins). The first and third pieces are close to finished (coming out in January and December respectively), but the second piece is still very early on and I'd be grateful for comments on the piece, which offers a sketch of how to redesign the architecture of punitive damages.

Criminal Justice and Family Ties in Action

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens. Through the course of our research, we've become perennially interested in the various ways family interests intersect with those of the criminal justice system.

Today, thanks to the indispensable Doug Berman, I just came across US v. Woods, this fascinating 5th Cir opinion vacating a supervised release condition (SRC) imposed by the district court on a defendant prohibiting her from living with persons she was not married to or related to by blood. The district court's SRC is not a straightforward benefit or burden under our analytic framework. The defendant is appealing the SRC and so to her it's not a benefit -- although if the alternative were prison, perhaps she would view it as such. Thankfully, the appellate court realized that prison in this case is not the appropriate baseline to use.  (Nor is it an instance of punishing the defendant's family status; the defendant doesn't face a unique burden attributable to her family status, the way say, omissions liability attaches to spouses but not paramours.)

Despite the difficulty in categorizing this particular SRC as a family ties benefit or burden, I am heartened to see that the higher court realized why this SRC was not sufficiently narrowly tailored to achieve its underlying purpose. One of the primary normative goals we have in our project is to persuade courts and policymakers to move away from relying on family status when making decisions in the criminal justice system about benefits or burdens and instead examine a broad range of caregiving obligations. The lower court's reliance on "ceremonial marriage" and "blood" relationships to determine who can live with the defendant upon release is indicative of the regime we're seeking to overthrow in the law...and I'm very pleased to see we have allies on the Fifth Circuit in our endeavor.

Executing Retributivism in real life?

Yesterday, I blogged about Executing Retributivism, a project I'm working on that discusses the communicative nature of retributive punishment. The article examines the untold implications of the Supreme Court's decision last year in Panetti v. Quarterman for Eighth Amendment review of capital and non-capital cases. In Panetti, the Court insisted that a defendant have rational understanding of why he is being punished before he can be executed. It's not enough, in other words, that the defendant be merely aware that he is being punished; he must rationally understand why he is being punished, and if he doesn't, he cannot be executed. As I argue in the piece, that rational understanding requirement seems to me to make sense only in light of a theory of punishment that seeks to preserve the opportunity for the defendant to internalize the values the state is effectuating through its imposition of punishment, and to evidence that internalization in response to the punishment. Thus there is a real tension, I argue, between a rational understanding requirement and the imposition of the death penalty; similarly, there are important implications for revisiting the current practice of warehousing the presently incompetent in prisons too.

Anyway, I mention this (again) because it seems relevant to the fascinating story in today's NYT about Willie Bosket, an offender who has been living in solitary confinement for over ten years in NY state prison. Bosket has killed and attacked people from a young age both in and outside of prison. Consequently, he's not scheduled to re-enter general population until 2046, unless the evaluations indicate that it's safe for others to be around him again. Given the tone of the story, it would seem that Willie's beaten his demons for the most part, but he still acknowledges that there's a risk he might pose to others. What I found especially interesting are his apparent remorse for what he's done while he's been in solitary confinement and his claim that he'd rather die at the hands of lethal injection than spend more time in the "hell" he's living. Putting aside the harshness of his current conditions, and whether they are appropriately visited upon Bosket, it seems to me that the internal struggle Bosket undergoes on a daily basis is precisely the reason why the death penalty is anti-communicative and why internalization and the opportunity to evidence that internalization day by day is the better retributive strategy to communicate the state's reprobation of the defendant's wrongdoing. The Bosket story also raises a cluster of other issues--definitely worth a read.

Random Updates on Punitive Damages, Eighth Amendment and Family/Criminal Law Work

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).

Executing Retributivism is up on SSRN

Just a quick note to point out that I've placed on SSRN a draft of a new paper I earlier discussed on the blog. The paper is called, at least for now, Executing Retributivism. Unlike most of my work, which is largely normative legal theory applied to discrete policy issues, this piece is quite a bit shorter (!) and more interpretative in nature: that is, it furnishes a close read of a relatively recent case of SCOTUS, Panetti v. Quarterman, and tries to situate that case's reasoning within the theoretical framework I've deployed before in the context of the death penalty. I argue that this decision has far greater consequences than previously realized if the decision is read properly and extended consistently. Here's the abstract:

In Panetti v. Quarterman, a Supreme Court case from last year about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. As this Essay explains, the Court’s “rational understanding” requirement only makes sense in light of a larger theory that understands state punishment primarily as a communicative and retributive encounter between the state and the offender. Once contextualized within that theoretical framework, the Court’s reasoning raises two profound and insufficiently appreciated consequences.

First, the Panetti decision upends the Court’s Eighth Amendment jurisprudence requiring neutrality among sentencing purposes selected by the states. Rightly read, the case elevates “negative retributivism” to a place of primary importance in constitutional criminal law. Thus, judicial consistency with Panetti necessitates substantial revision to the treatment of claims of actual innocence, to the warehousing of mentally ill persons in prisons, and to judicial assessments of sentencing proportionality. Second, Panetti’s reasoning quietly erodes the rationale for the continued use of the death penalty in the United States. In short, once properly construed, Panetti, a seemingly sleepy case about a doctrinally narrow issue, changes everything.

How Should Punitive Damages Work?

Update 8/31: I'm moving this up to save having to write a new post. I just wanted to share the exciting news that I've just accepted an offer to publish this piece in the University of Pennsylvania Law Review in volume 157 (spring 2009 sometime). Interestingly, the piece didn't get picked up through an expedite, which should hearten those authors who wonder whether and how much "law review strategery" is necessary.  I owe a giant thanks especially to Jason Solomon and the attendees at Prawfsfest! at Hofstra, who helped me see the need to restructure the piece entirely in the last month. Once I get some more revisions on that death penalty paper done in the next few days, I will blog about this paper some more.

***

I'm very excited to announce that I've recently uploaded to SSRN a working draft of my new paper, How Should Punitive Damages Work? You can download it here. It's still a work in progress but I hope to have solved a few policy and constitutional issues in it. As the sequel to my Retributive Damages piece coming out this January in Cornell LR, it tries to lay out in more careful detail how to build a better punitive damages regime. This particular piece focuses on issues common to all kinds of punitive damages cases.*

After providing some background, I explain that there are three normative goals that punitive damages can and should achieve:
1) the public interest in retributive justice, which is vindicated through what I call "retributive damages."
2)  empowering victims with a mode of recourse that permits but does not obligate the victim to vindicate the injury to his/her dignity interest, an interest that is not otherwise compensated under traditional compensatory damages, and which I, following some Commonwealth jurisdictions, call "aggravated damages."
3) the pursuit of cost-internalization or "optimal deterrence" the extent to which it is permitted after Philip Morris. These are called "deterrence damages."

To make punitive damages work well, I argue that we have to separate retributive damages from damages meant to achieve deterrence or to vindicate the victim's dignity and autonomy interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.

The Article begins that task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.

The argument is largely a prescriptive one: that is, if you agree with these rationales, which have been separately defended in the literature, then here's how to build an attractive pluralistic damages regime. However, I also want to ensure that this pluralistic extra-compensatory damages regime is in fact  consistent with the Supreme Court's various cases, so there's an element of doctrinal analysis too.

Indeed, there are a number of constitutional arguments I make that counter, on the one hand, arguments by those like Tom Colby, who thinks that "retributive damages" would require the panoply of criminal procedural safeguards, and on the other hand, arguments by those like Marc Galanter and David Luban, who think the fact of privately initiated lawsuits for punitive damages means that relatively nothing in the way of procedural safeguards are constitutionally required or normatively justified.

My own view is that both of these positions are wrong.  I explain why after the jump.

In short, pace Colby, retributive damages are not criminal fines because they don't entail criminal convictions or trigger the cluster of collateral consequences that typically attach to all sorts of convictions. But they are, contra Galanter and Luban, nonetheless a rebuke of the defendant that involves elements of both public censure and punishment, albeit of a civil, not criminal, kind. Thus, for reasons I elaborate in Part III of the paper, retributive damages are best understood as an intermediate civil sanction that require (constitutionally and normatively) an intermediate level of procedural safeguards, that is, a level falling roughly between what is due defendants facing on the one end, compensatory damages, and on the other, criminal fines.  Where there is no obvious "intermediate" level, some analysis of how the safeguard works to advance the reduction of Type I or Type II errors is required. Along the way, I also explain which procedural safeguards would be appropriate to implement "deterrence damages" and "aggravated damages."

I note that this version of my paper includes a bunch of claims that critique Tom Colby's SSRN draft (from June 27th, 2008) of his forthcoming Yale LJ piece. I shared my draft with Tom yesterday (8/27) to make sure he was comfortable with the way I was characterizing his arguments, and after reading it, he informed me that in the non-public version he's currently editing, he had already made some changes in light of some earlier comments I sent him, and that, in light of the draft I sent him yesterday 8/27), he is now planning on making a few more changes that are responsive to my points. I mention this chiefly to signal that I will revise my draft a bit later on to make sure it addresses the changes Tom plans on making to his final draft.  But as of now, the version of my article on SSRN addresses the June27th version, which is available here. His SSRN link is here in case you want to see subsequent drafts. Once his final paper comes out, I'll be sure to post a revised version of mine that avoids any confusion. I confess that the moving target aspect of some of this exchange is a bit cumbersome, but I guess when SSRN gets you tomorrow's research today, you have to accept the consequences! 

* I hope to finish the series of articles this spring by writing something tentatively called, Punitive Damages and Complex Litigation, which addresses the specific questions associated with misconduct by entities and misconduct that affects multiple parties within and across jurisdictional lines. I'm planning on putting the three pieces together into a book, tentatively called The Punitive Damages Mess: How To Fix It.

Jack Balkin, Soul-Killer: Or why "theoretical sophistication" is bad for the orginalists

That's the provocative claim, at least, that Steven Smith (USanDiego) makes in his new essay on SSRN, That Old-Time Originalism. The soul whose death Jack instigates by his mere presence is originalism. On Smith's view, if Jack and like-minded thinkers are originalists now without sacrificing little or nothing in the "conversion," then that spells trouble for originalists, rather than provides a basis for jubilation because the club of originalists is bigger now.

Indeed, Balkin’s deployment of the distinction between “expected applications” originalism and the “text and principle” variety of originalism is little more than a rechristening of the “concept/conception” analysis offered by Dworkin decades ago, and is used to similar effect. But if Balkin can be an originalist by virtue of favoring interpretation based on the “principles” contained in constitutional provisions rather than “expected applications,” there is no apparent reason why Dworkin should not be an originalist by virtue of advocating fidelity to the enactors’ “concepts” rather than their “conceptions.”

In other words: Uh-oh, Ronnie's part of our club too now. According to Smith,  "the real harm [of such harmony among scholars] is that originalism is no longer available as a distinct approach to further (or at least attempt to further) the worthy purposes, noted above, for which it was devised– namely, constraining courts in history-grounded ways, and preserving the ability of democratic institutions to enact constitutional provisions with relatively definite and fixed meanings. That seems a regrettable loss (even for those who doubt originalism’s ability ultimately to provide what it promises)."   In the last ten years, there has been so much tumult and turmoil (and perhaps progress!) in the field of constitutional method(s) that it's been hard for non-specialists like myself to capture all of its particularities--though Larry Solum's done a great job keeping us abreast of each move on his blog. Smith's essay is a warm, funny and inviting segue to the conversation -- even if what he says will probably irritate some the participants to the conversation which he's interrupting. His conclusion, as I take it, is that people interested in the original understanding of the law are best off with undertheorized agreements to proceed together, and to only go up a level of conceptual abstraction when necessary to resolve practical disputes.

As I see it, there is a problem with such advice: given the capaciousness that Smith suggests describes the current originalism camp--and given that we are all purportedly originalists now--it will be hard to show that it's not pink elephants (or practical disputes) all the way down...a fact I think Smith is alert to by the end of his essay, but perhaps not quite willing to embrace. In any event, Smith's essay is highly worth your time and will give you a good flavor of the current state of play in the field that rightly or wrongly still has a disproportionately large effect on the intellectual life of many law schools.

"Legal epistemology is ninety per cent quantitative. The other half is qualitative."

The last month I've been developing a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I've not met before, but whose recent work (all posted on SSRN) ought to be pressing the criminal justice commentariat to re-think a lot of our assumptions when we talk about trial errors and risk-risk trade-offs between Type I errors and Type II errors.  Laudan's work seems to be mining the rich vein of material earlier espied by UVA's Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the Sunstein-Vermeule death penalty paper.  Here's a very short introduction to Laudan's intellectual agenda that he just put up entitled "The elementary epistemic arithmetic of criminal justice." And here's a link to "Deadly Dilemmas," a sharp short essay he wrote with Ron Allen from Northwestern that was part of a symposium.

Laudan's concern is to show us what we're doing when we consider risk-risk tradeoffs. As he writes, "The recent spate of exoneration studies puts us in a position to say that the lifetime risk of being falsely convicted of a serious crime is less than one-tenth of one percent. By contrast, data from the BJS suggest that the lifetime risk of being a victim of a serious crime is about 83%. In short, the average American is at least 90,000% more likely to be seriously victimized than falsely convicted of a serious crime. (I should add that, because I have interpreted the figures very unfavorably with respect to my own hypothesis, the more likely ratio of these risks is about 8,000:1, in which case one is 800,000% more likely to be a crime victim than the victim of a false conviction.)"  His major point so far as I can tell is to carefully demonstrate how the risk of being a victim of a serious crime by a criminal who's been  falsely acquitted is far greater than the risk of being falsely accused convicted of a serious crime, and that the current "innocentristic" approach to death penalty reform and other criminal justice issues may be obscuring the normative importance of that fact.

Having read only a few papers by Laudan, my sense is  that there are two areas that need amplification.

First, Laudan's number-crunching doesn't seem especially sensitive to the distributive patterns of these competing risks. In light of the prevalence of intra-racial crime, I can imagine that there's some story that might justify this silence. After all, if it turns out that the average young black male of the inner-city faces far greater likelihood of being victimized of a serious crime than being falsely accused of a serious crime, he might have good reason to see various criminal procedure and evidence rules shift in the direction Laudan proposes. On the other hand, if that story is not true, and in fact it's the old white woman who faces much greater likelihood of being victimized instead of being falsely accused, but the numbers don't look as powerful for the young black male, I can imagine that something more needs to be said before we all embrace the direction of Laudan's prescriptions.

The other thing that Laudan's papers, at least the ones I read, seem to occlude is the nature of the risk associated with the kind of crimes one may be victimized by. To my mind, the analysis Laudan is providing is not quite sufficiently granular.  For example, Laudan argues that we can derive using some public stats,  a "plausible measure of the gravity of a false aquittal." Using his calculations, he notes that "for any given false acquittal for a serious crime, we can anticipate >4 violent crimes that would have been prevented [during the time the offender would otherwise have been incarcerated] had the legal system not decided to let the guilty felon out of its clutches, either by explicit acquittal or by a dropping or dismissal of charges against him. Of those four serious crimes, 0.1 will be a homicide, 0.2 will be rapes and 3.7 will be armed robbery or aggravated assault."  Laudan seemingly lumps these crimes together to create a "serious crime" category, which should be compared to the risk of being falsely convicted of one of these serious crimes.

The problem is that I can imagine many people who would sooner suffer a aggravated assault or armed robbery  than be  falsely convicted of those particular "serious" crimes.  Not because  those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim's perspective, likely to be short. One can go about one's life afterward, in many cases, relatively normally.  By contrast, a false conviction for assault or armed robbery will, depending on the sentence, probably be much more lasting in terms of duration, stigma or other hardships for the falsely convicted defendant. Looking at rape and murder, many would view being victimized of those crimes as devastating, even if not identical. Additionally, being falsely convicted of rape or murder would also be incredibly difficult to bear, though probably less difficult.  So my sense is that the conclusions Laudan draws would be more powerful if we could isolate the nature of the risks being compared in a more particularistic way.   What Laudan's CBA should look at is the relevant risks associated with each of those crimes if we are to be persuaded that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes.

**Btw, the title for the post comes from Laudan via Yogi Berra.

New Draft of Punishing Family Status on SSRN

I apologize for the relative dearth of blogging on my part the last few weeks. Between Vancouver and Prawfsfest! and SEALS, there has been surprisingly little time to start and/or finish a few articles and a book, and throw in some blogging. Though I have some thoughts and reactions I want to share on a host of topics in the near future, I'll use this post for familiar purposes :-)

Happily, Ethan, Jennifer Collins and I have just uploaded to SSRN a new draft of our piece, Punishing Family Status. You can download it here. This draft is a good bit more streamlined than the earlier draft and, unlike the earlier draft, it also addresses filial responsiblity laws, ie, a "family ties burden" in various states that require adult children to subsidize their indigent parents. We're also more explicit about the roles played in our account by voluntarism, vulnerability, and liberal minimalist approaches to criminal law. We were gratified to see that our paper was one of the top 10 most downloaded criminal law articles on SSRN the last few weeks -- but with only double digit downloads so far we have to assume everyone is enjoying the summer, or migrating to bepress to find their drafts!

The piece is currently scheduled to come out in the December 20098 (oops!) issue of the Boston University Law Review, where it will be the subject of a mini-symposium. Professors Michael O'Hear (Marquette; editor of Federal Sentencing Reporter) and Rick Hills (NYU) have graciously contributed shrewd and learned responses, and we have just finished a first draft of our reply. We will circulate that on SSRN pretty soon too. (Btw, big props/kudos to SSRN for making the uploading of new drafts a lot easier and quicker!!)

The current abstract of the piece appears after the jump.

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental liability statutes based on failure to supervise, incest, bigamy, adultery, and failure to pay child or parental support.

Part II then develops a framework for the normative assessment of these family ties burdens. We first ask how these laws can properly be understood to be "burdens." We then look at these sites synthetically and contextually to uncover a pattern underlying most of these family ties burdens: namely, they tend to serve the promotion and of voluntary care-giving relationships. We endeavor to explain why this rationale is instructive and normatively attractive for the design of family ties burdens within a criminal justice system committed to what we call "liberal minimalism." As Part II concludes, we articulate the contours and basis of a critical scrutiny that should attach to family ties burdens in the criminal justice system.

Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status but are still capable of promoting and vindicating voluntary care-giving relationships.

New Version of Retributive Damages up on SSRN

Just a note to highlight that there's a revised draft of my article, Retributive Damages, up on the funky new SSRN over here. The article, which sets out a normative theory defending punitive damages as an intermediate sanction from a retributivist perspective, is coming out in January 2009 in the Cornell Law Review. I just sent this new draft to the folks at Cornell.  I also recently sent the draft to a bunch of the people whose work I cite, use or criticize to make sure they are happy with the way I've characterized their work. I probably left out some people, so if you find yourself in the paper or  not in the paper but think you should be, I'd be most grateful for any suggestions to improve it.

As I think I've said here before, this paper is the first in a series on "retributive damages." I'm presenting the second one, Implementing Retributive Damages, tomorrow at 130pm at a SEALS panel I put together on trends in punishment and privatization. Also on the panel will be Prawfs' Jason Solomon, and Kenworthey Bilz (Northwestern), and Ric Simmons (Ohio State). Kenworthey will be discussing developments flowing from her work on the puzzle of delegated revenge, Ric will discuss themes from his work on "private criminal justice," and Jason will be talking about new developments in his revenge against the USNews rankings work in the civil recourse theory of tort law. Should be very exciting.

I should add parenthetically that it looks like, after the feedback I received at Prawfstra, I will probably be spinning off a short piece from the current version of Implementing Retributive Damages. The current working title of the spin-off is Pluralism and Punitive Damages after Philip Morris. Depending on dates, etc., I will be happy and grateful for the opportunity to come talk about any of these projects this coming year if you're looking to round out your faculty workshop series.

Revisiting Cost Internalization and Punitive Damages after Philip Morris

More than a year ago, the Supreme Court handed down its decision in the Philip Morris case. I blogged about it at least a couple times. It's on my mind again, since I'm spending this month, among other things, revising my  Retributive Damages article (coming soon to a Cornell L. Rev. near you), and trying to finish drafting the successor article in the trilogy, Implementing Retributive Damages.

What I want to provoke here is some discussion about whether what Tom Colby (GW) and others call "total-harm" damages  extra-compensatory damages are permissible after Philip Morris if they are characterized simply as augmented damages for the purposes of cost-internalization or optimal deterrence (let's run those two notions together here, shall we?).  In Tom's latest work on punitive damages, which is forthcoming in Yale LJ, and is available in draft here (SSRN version of June 27, 2008), he argues that cost-internalization damages would and should be an available option (constitutionally speaking) so long as state legislatures or courts said they were not engaged in awarding "punitive damages," which is to say, so long as language of condemnation or language of punishment is not explicitly used.

My own view is that Colby's reading of the implications of Philip Morris for augmented or "total-harm" damages could logically be correct. But it seems a weird and ultimately, to my mind, wrong way to read what the litigants and the majority of the Court thought they were up to in the Philip Morris dispute and in this opinion. My extended thoughts are after the jump, and basically excerpted from my rough IRD draft. I invite your thoughts about the future of optimal deterrence/cost-internalization in the comments. (Btw, I will probably have more to say on Tom's article in other posts or perhaps in a response I might draft.)

Update: I made the mistake of conflating Tom's conception of "total-harm" damages with cost-internalization. As Tom kindly reminded me, his notion of "total-harm" damages, as used in his 2003 article, included a retributive component in addition to a deterrence signal.

To my mind, the proponents of the cost-internalization approach now face substantial difficulties on account of the Supreme Court’s recent decision in Philip Morris USA v. Williams. Implicitly repudiating the language of its TXO decision, which permitted punitive damages awards to consider the harm or potential harm from the conduct “as a whole,”[i] the Court reversed course. Writing for a 5-4 majority, Justice Breyer held that the Due Process Clause forbids punishing a defendant for harms to nonparties to the instant litigation because the defendant would not have the ability to “defend against the charge,” depriving the defendant of notice and imposing a substantial degree of arbitrariness and uncertainty in punishment.[ii] Thus, in assessing the putative excessiveness of punitive damages in a given case, a court must scrutinize whether a jury is punishing a defendant an amount of punitive damages that considers the harms actually suffered by strangers to the litigation.

By restricting the permissible scope of harm and potential harm, the Philip Morris decision now raises questions about whether full cost internalization is forbidden when establishing the amount of punitive damages. The ambiguity is subtle and has been brought to my attention by Professor Tom Colby’s forthcoming article on the subject.[iii] Professor Colby argues that states could constitutionally pursue “total harm” damages meant only to achieve cost-internalization so long as the state said there was nothing “punitive” to this cost-internalization approach. That would leave punitive damages, in his view, to pursue only the goals associated with what I have been calling "victim vindication" or "aggravated" damages.[iv]

The problem with Colby's narrow reading of Williams is that it reads the Court’s holding into, effectively, a nullity, giving with one hand a right that defendants would want and have fought repeatedly for and then stripping away the value of that right with the other hand. It’s hard to believe that the Court and litigants would be divided so sharply on an issue with such apparent lack of consequence--by letting total harm damages erupt without any procedural or substantive safeguards so long as the courts or legislatures say they're not punishing, they're just regulating. And unlike United States v. Booker -- which did recognize a defendant’s right only before demolishing its significance -- there aren’t separate opinions in Philip Morris regarding the “merits” and the “remedy.” Philip Morris is just one opinion and therefore susceptible to less plausible charges of schizophrenic reasoning.

To my mind, the better reading of the case undermines the feasibility of a cost-internalization agenda, but for two reasons, it does not destroy the agenda in one fell swoop.

First, the goal of achieving cost internalization remains feasible to the extent that jurisdictions make available class action or other aggregative litigation strategies that protect the rights of defendants; once a class is certified, at that point, nonparties become parties to the litigation. That said, more class actions will only permit the consideration of actual litigants, not the “quasi-parties” on whose behalf Professor Sharkey also advocated.

Second, the prospect of obtaining augmented damages outside the class action also continues to survive Philip Morris to the extent the defendant caused potential harm to the plaintiff(s). In other words, under my proposed reading of the case, the operative question (for purposes of cost-internalization) is now: what harm or potential harm did the defendant cause this particular plaintiff (rather than what harm or potential harm of this sort did the defendant cause)? The potential harm to the plaintiff, which the Court still permits as a consideration, plausibly encompasses the likelihood that the defendant would escape compensating this particular plaintiff. And to those that worry that Philip Morris eviscerates optimal deterrence, consider cases like those presented in the Supreme Court’s TXO decision, where an augmented damages award could be justified based on potential harm to the particular plaintiff on account of the tortfeasor’s concealment or deceit. If we assume a situation where a plaintiff faced a 1/3 chance of discovering that it was this defendant who caused the harm to the plaintiff, then that should, in theory, allow a jury pursuing cost internalization to impose augmented damages that are double the compensatory damages. (Per Polinsky and Shavell, “the total damages imposed on an injurer should equal the harm multiplied by the reciprocal of the probability that the injurer will be found liable when he ought to be.”[v] Thus, if a harm of 10 is caused and there is 1/3 chance the D will be held liable, then augmented damages should be 20 in addition to the 10 in compensatory damages, for a total of 30, or 3 times the harm.)

In sum, under my reading of Philip Morris, if a multiplier were based solely on the likelihood that the harm or potential harm to the plaintiff would be detected and compensated, it would pass constitutional muster, as suggested in Justice Breyer’s concurring opinion in BMW v. Gore.[vi] But Professor Colby is correct to emphasize that augmented damages need no finding of reprehensibility to warrant their award, and in such a situation, they should not logically be thought of as part of the punitive damages constitutional analysis.[vii] Instead, they involve a fact-finding determination, much like the amount of compensatory damages. And because augmented damages are essentially a regulatory tool to facilitate cost-internalization, states should be permitted to pursue different regulatory strategies, with tort law as one of several instruments to pursue that goal. A jury verdict form that reflects this ambition simply has to limit the jury’s consideration appropriately. The Appendix to [the IRD and RD articles] makes such an effort though it does so based on my reading of Philip Morris’s implications for cost-internalization, not on what I think would be logically required on a blank slate.

I should add that I don’t particularly have a dog in the fight; if it turns out Colby’s reading of cost-internalization after Philip Morris is regarded as correct, then I’d be happy to have the jury instructions I offer in the Appendix to my article -- the ones dealing with cost-internalization -- adjusted accordingly.

Standard of Review for Augmented Damages

 

What’s important about this decoupling of purposes (separating out the retributive purpose from the cost-internalization perspective) is that it logically calls for a different standard of review on appeal. In Cooper Industries, the Supreme Court announced that in federal cases the amount of punitive damages should be reviewed de novo, and that decision was predicated in part on the claim that determinations of punitive damages involve a moral component that has to be weighed against a defendant’s due process rights. That holding is only true for the retributive (and arguably the complete, not optimal, deterrence) part of extra-compensatory damages; by their nature,  augmented damages for the sake of cost-internalization involve only matters of empirical estimation (ie, what’s the likelihood the defendant would escape having to compensate this plaintiff), and thus are no different than compensatory damages (which ask, among other things, what kind of pain and suffering did the defendant’s action cause?), and thus determinations of augmented [total-harm] damages deserve greater deference when reviewed on appeal.

---

[i] Gore, 517 U.S. at 584 (indicating punitive damages award may reflect harm caused to all in-state purchasers);

[ii] Philip Morris, 127 S.Ct. at 1063 (slip op. at 6).

[iii] Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages, 118 Yale L.J. (forthcoming 2009; manuscript on SSRN).

[iv] Professor Colby thinks, based on his understanding of the constitutional issues, that a public interest in retributive justice cannot be pursued outside the criminal law because of the absence of procedural safeguards. In this respect, he seems to agree with the view articulated by Redish, Emory L.J. But this perspective, to my mind, requires a finding that an intermediate sanction cannot be imposed even if it is accompanied by intermediate levels of procedural safeguards. My view is that with some basic safeguards, we can tolerate and embrace the use of intermediate sanctions. And given what the Supreme Court has repeatedly said in the last thirty years about the “quasi-criminal” purposes of punitive damages, there’s no reason to suspect that a space for an intermediate sanction cannot be carved out.

[v] See Polinsky & Shavell, supra note, at 889.

[vi] BMW of N. Am. Inc. v. Gore, 517

U.S.

559, 562 (1996) (Breyer, J., concurring).

[vii]

While the Court has in the past referred to deterrence as a goal of punitive damages, cost-internalization is about optimal or efficient deterrence, whereas what’s probably being adverted to by the Court is the goal of complete deterrence. The goal of complete deterrence signals that the conduct is prohibited whereas the goal of cost-internalization suggests that the defendant’s conduct is “priced.” Because cost-internalization refers to a different kind of deterrence (optimal) than the one (of complete deterrence) probably subsumed under the Court’s pronouncements in the constitutional analysis, Colby’s conclusion is highly plausible as a matter of theory and logic; but for the reasons I mentioned in the text, I doubt this conclusion is what the Court meant in Philip Morris.

 

The Alt-Neu clash of anti-discrimination and free exercise

Update: See bottom of post for additional notes.

Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups.  Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise. For the most part, even if SSM were not recognized, many of the persons or entities would still be claiming their free exercise rights have been threatened. Thus,  the mere fact of SSM's newfound recognition in various  places serves as an opportunity/springboard for repeating earlier claims of conflict between anti-discrimination laws and free exercise.

Like Carpenter, I'm strongly in favor of SSM and rights against discrimination on the basis of sexual orientation more generally. And at the same time I am broadly sympathetic to robust free exercise claims. So the conflict is not an easy one to resolve, especially as religious institutions participate in broader swaths of civil society through the establishment of schools, hospitals, adoption agencies, etc.

Carpenter abjures from trying to find a broad principle or strategy to help resolve these conflicts when they arise.  I'm somewhat leery of ad hoc casuistry and thus tempted to find a (normative if not constitutional) distinction or set of distinctions that would create some predictability and sense here. My view is that, in almost all cases, sexual orientation is about as morally irrelevant as the race of a person. Thus virtually any situation where race-based discrimination should be prohibited should be grounds for application of the same norm against discrimination based on sexual orientation.  Some applications and grounds for holding this view appear after the jump.

The examples below are culled from Carpenter's post. If I'm right that sexual orientation is as morally irrelevant a basis to discriminate upon as race is, then the person or entity claiming infringement of religious freedom should lose in all these following situations. However, in some situations not described below in the cases, I think it's wrong for the state's anti-discrimination norms to intrude (which is different from saying that it's morally permissible to discriminate based on race or sexual orientation). Thus, if someone  refused to date a white person or take a gay person into their home as a room-mate, then that should be permissible since we have good reasons for restricting the reach of the state's power.*

What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies).  Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.

But there is at least one problematic conflict that Gallagher alludes to her in piece in NRO, and this is an example of a conflict that does arise with SSM that doesn't arise with antidiscrimination more generally (and it's something Dale should probably discuss): whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).

[2d Update: Actually, upon Rob's prodding and reflection, I'm not sure I was right to suggest that anti-discrimination norms should trump a refusal to perform SSM in the Church. Unlike in Bob Jones, which involved application of anti-discrimination norms to a university -- and therefore as what Rob calls "paraministry,"  and what I called earlier the empire of influence  -- the refusal to perform SSM occurs as an aspect of the core private space and function that should remain relatively inviolate from the state's intrusion. So I think this is consistent with my earlier view about having some space free from state intrusion.]

That said, my tentative sense is that tax-exempt status is something that should probably be revisited more broadly.  In this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. Taking the status away leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else. I'm not so troubled by that, but I'd also think that removing tax-exempt status for a whole cluster of third-sector organizations is appropriate, at least in part to blunt the charge that the state is granting important privileges to faith-based organizations based on viewpoints congenial to supporters of the anti-discrimination norms. [I've lightly edited this paragraph.]

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.

*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian.

*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.

*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.

I should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times. That said, I think it's a mistake to read that op-ed as evidence of that person's (or his organization's) straightforward opposition to SSM. Rather, contra Dale, I think that the op-ed can be read as simply highlighting some of the predictable conflicts and residual costs associated with SSM.

In any event, kudos to Dale for writing such a thoughtful post. It's been a while since I've taken the time to mull some of these conflicts so I'm grateful for the provocation. I'll be curious to hear how others on this blog who are sympathetic to free exercise claims approach these issues normatively.

Update: Rob Vischer at Mirror of Justice takes me to task. He first argues that civil society access should not require adherence to antidiscrimination norms. He then challenges my willingness to strip tax-exempt status from organizations not willing to abide by antidiscrimination norms, and my willingness to strip tax-exempt status more broadly.  I realize that liberalism succeeds or fails in part based on recognition of a public/private boundary. The question then is where does this boundary lie. And this issue ultimately informs the resolution of both points Rob makes.

In the first point, Rob asks:

I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access.  E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)?  If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so?  Does access have to be universal in order to be meaningful?

It would seem odd if the answer to this question turned on empirics alone: for I can simply reverse the scenario and ask Rob, if civil society reflected a deeply Orthodox Jewish or pious Catholic approach, and there were only 2% of the colleges and universities that abided by antidiscrimination norm, would that be a sufficient preserve of access?

To my mind, that's what the West was like in most places prior to the 20th century (politically) and the 17th Century (philosophically). So these are real questions, and I think I'd rather side with an antidiscrimination norm in the public square coupled with a state that left people alone in their churches and homes. I recognize that it's an imposition to draw these lines against faiths that see themselves as kehillot, or communities with various forms of institutions, and don't view themselves as existing simply in the minds of its adherents.

But maybe the answer should turn on empirics too: perhaps if there's a sufficient mix of views in the public square and the marketplace then there's no instrumental reason (in the sense of furthering access) to insist on the anti-discrimination norm. The question I'd ask Rob and those sympathetic with his view is: how do we design institutions so that they can prevent the mix from being too dominated by one religious worldview especially in relatively homogeneous societies?

As to Rob's second question, I really think this is just about which baseline we are operating with. As I wrote him, I think invoking Justice Powell in Bob Jones does no more than confirm that it's basically an endowment effect (the religious organizations currently have the entitlement of not having to pay taxes) that informs/distorts the perspective here. Requiring organizations to pay taxes certainly doesn't strike me, contra Powell, as "an indispensable means of limiting the influence of government orthodoxy on important areas of community life."  Rather, it's a way of recognizing the various pro-social benefits most of these institutions do for society. Requiring them all to pay taxes puts them all on the same footing with each other in the competition for supporters and adherents. Requiring some to pay taxes because they are violating antidiscrimination norms puts them on the same footing as all the private individuals who harbor racist or anti-gay beliefs too. That doesn't strike me as the end of a liberal order. [But, for reasons I hope I clarified above in my update, the situation of refusal to perform SSM in the Church shouldn't be a basis for stripping tax-exempt status.]

*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.

A contemporary Antigone story?

Over in Michigan, there's a story developing about a father who was arrested for harboring a fugitive: his son.

It's a choice that no parent would want to make. Kelley Thomas' 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad's doorstep on E. Lorado Avenue. Now, Thomas has been charged with harboring a felon. What's a parent to do? It's a difficult question, even to Genesee County Prosecutor David Leyton.

"The fact that he's the father was discussed by my staff, and we will take that into consideration as the case progresses," Leyton said. "It's hard to turn your back on your own flesh and blood." ... The Genesee County Sheriff's Department and the U.S. Marshals Service raided the house on May 30 and police say they found Carter hiding in the bottom cabinet of an armoire at his father's house. Thomas, 45, told police that he didn't know his son had escaped from jail. Their cases are still pending. Thomas could face four years in prison. Carter had been in the Treutlen County Jail in Soperten, Ga. for a probation violation for assault and cocaine sales.

This story, and the reader comments on it that follow,  raise the question of whether states should extend what Ethan, Jennifer Collins and I have called "family ties benefits" in the criminal justice system. (The newspaper article refers to  the law review article I wrote with Jennifer and Ethan, which will form  part of our  forthcoming book with Oxford on criminal justice and the family.) Some analysis after the jump.

As I mentioned to the reporter, at the time of our study, we saw about 18 states that give either sentencing discounts (4) or prosecutorial exemptions (14) to family members who harbor fugitives. In the article, we explain our reasons for thinking that such "freebies" are wrong-headed: primarily, they create more likelihood of Type II errors (where wrongdoers escape condign punishment), discriminate against those without family networks to offer refuge, and increase the likelihood of successful crime networks. That we think harboring fugitives is wrongful, even if parents do it for their children, of course, is consistent with relatively low sentences. Four years incarceration--what the father in this story faces--is pretty steep to my mind.

Of course, in this particular case, if the father can convincingly show that he didn't realize his son was a fugitive, then that should also be a basis for exculpation. It does seem a bit fishy, though, that the son was found hiding in the armoire of the father's house and that the father wouldn't know that his son had not completed his sentence. According to this story, "[t]he father, Kelley Thomas, allegedly told police he had heard a rumor that his son had escaped from jail but claimed he never asked him about it."

But those are facts for a jury to decide and there may be other circumstances at play here. Interesting case. And probably more frequently occurring than one would think. After all, families are often the ones criminals, like the rest of us, reach out to first.

Poetic Justice Instantiated

Literally. Turns out a bunch of teens near Middlebury College trashed the former home of poet Robert Frost.

On December 28, a 17-year-old former Middlebury College employee decided to hold a party and gave a friend $100 to buy beer. Word spread. Up to 50 people descended on the farm, the revelry turning destructive after a chair broke and someone threw it into the fireplace. When it was over, windows, antique furniture and china had been broken, fire extinguishers discharged, and carpeting soiled with vomit and urine. Empty beer cans and drug paraphernalia were left behind. The damage was put at $10,600. Twenty-eight people -- all but two of them teenagers -- were charged, mostly with trespassing.

Now Frost's biographer, Jay Parini, will be teaching them Frost's poetry as part of their punishment. It's an unusual and creative form of what I call "guilt punishments," and discuss at length in this article from Vanderbilt LR in 2001. Unlike public shaming punishments, these guilt punishments can occur in relative privacy without any participation of the public; moreover, they prototypically are designed to induce some form of moral contrition by the defendants, many of whom will not have to face a permanent record if they complete the "diversion" conditions successfully.

Years ago, I endorsed guilt punishments -- as opposed to shaming punishments -- as a good retributivist alternative to incarceration. But in the last few years I have also worried about the kind of sentencing flexibility (and potential breach of rule of law values) needed to create an effective guilt punishment, such as the one suggested in this case in Middlebury. My tentative view, and it's only a rough sense at this point, is that the concern for reducing unwarranted sentencing disparities is enhanced in cases involving more severe punishments--such as incarceration.  But in truth it might be that this view is the product of a pragmatic compromise.  After all, there is no obvious logical relationship between the values promoted by a commitment to equal justice under the law and the degree of punishment.    I'm open to suggestions.
H/t: Andrew Epstein.

Retributive Damages, Privacy and Procedural Safeguards

Greetings from gorgeous Vancouver, where I'm camped out for the next month at the extraordinarily lovely and temperate surroundings of Green College at UBC.  When not teaching comparative sentencing law and policy to a group of wonderful students this coming month, I'll be working on a couple writing projects: among them, the book on family ties and criminal justice, and the first two installments of my retributive damages trilogy.

Today, I was working on Implementing Retributive Damages, the second of the trilogy, and I've been mulling over the need for procedural safeguards in the context of punitive damages. One puzzle got me thinking, about which I thought I'd invite some conversation. Here's the issue after the jump. Let me know what you think.

In an article published more than a dozen years ago, Professors Marc Galanter and David Luban argued that criminal defendants need additional procedural safeguards because of “two concerns — about the centralized power of the state and about state abuse of prisons and physical violence.” Because Galanter and Luban believe that neither concern is implicated by punitive damages – actions for punitive damages are brought by private parties who cannot obtain relief in the form of physically restrictive punishment – there is no need for increased procedural safeguards. I take issue with this conclusion in the article because it seems to me that both of these reasons are insufficiently defended. Here I want to ventilate part of that critique by focusing here on the first reason; what follows is still quite tentative so please take it in the spirit of a trial balloon rather than a conclusion of my well-considered views.

Specifically, I want to focus on the idea that the centralized power of the state as such is a reason to extend procedural safeguards to defendants. It seems to me that safeguards are necessary largely to reduce Type I errors where we either mistakenly punish someone or overpunish them compared to comparable offenders. That is, when we are punishing someone, the reason we want procedural safeguards is not to curb the centralized power of the state as such, but because of our desire to make sure that any such power is properly exercised against a particular person or entity.

One way of making this argument is by analogy to the realm of privacy intrusions. Let me explain. To my mind, a person's well-being is impaired when he suffers a setback to his interests, e.g., when the privacy of his (mis)conduct is revealed through either private or public agents. If a private investigator for a plaintiff comes rummaging (with no notice or temporary authorization through my garage,) I am still reasonably upset or resentful. I can imagine I may reasonably be even more upset when the government is the intruder instead of a private investigator for a third party—after all, the government purports to act in my name. But to the extent my choice is to shield something from exposure to public view, the legitimacy of the interest I have in keeping that information private doesn’t hinge -- does it? -- simply on whether the intruder wears the government’s badge.  [Do people have different views about this than I do? If so, why?]

Similarly, in the context of punitive damages designed to advance the public's interest in retributive justice through the use of retributive damages (for now, think of this simply as a fine, the basis of which is instigated through civil suits launched by private parties), we each, ex ante, have an interest in ensuring that the government strikes the right balance between type I and type II errors. Procedural safeguards are the primary way to reduce type I errors, and to some extent type II errors having to do with underpunishment relative to comparable offenders. From the defendant's perspective, he should want procedural safeguards to avoid the mistaken assignation of condemnation and the accompanying hard treatment, regardless of whether the person whose detection of the underlying wrong is the sovereign (public prosecutors) or private plaintiffs. In other words, a person subject to a retributive condemnation has no reason to think fewer safeguards are desirable since in both cases (privately launched or publicly launched suit), the state is making the adjudication involving condemnation and imposing the punishment.

The procedural safeguards, then, are necessary because the state has power to do things that we worry about to people, not simply because the state has power. In the context of retributive damages, the state has the power, through its courts, to enforce deprivations of property or reputation, and thus the concerns that motivate procedural safeguards in the criminal context arise, though to a lesser extent, when retributive damages are at issue. To the extent retributive damages can plausibly be said to be an intermediate sanction on the register of severity of condemnation (whether in the intensity of available punishments or the collateral consequences one might face), it would call for an intermediate level of protection against its wrongful imposition. Thus, actions involving retributive damages should exhibit more concern for Type I error reduction than is warranted in suits involving mere compensatory damages but less concern for Type I error reduction than is warranted in criminal prosecutions of defendants. Precisely how to draw that line is something I'll leave for another day.

Back to the privacy issue. There's not really much gained here by way of the analogy I suppose, but the point I think I'm making here is that just as we want protections against unwarranted intrusions against our privacy so too do we want sufficient protections against unjust imposition of punishments; and it seems to me that the scope of the protections we want does not really turn on who is the source of intrusion so much as the nature of the intrusion itself. Galanter and Luban seem to be making the contrary claim; if that's right, I can't really understand why.

Same sex marriage and the "parade of tolerables"...

Rick's correct to note the general point on slippery slopes below, but I think his application of the point doesn't translate. Let me offer a couple quibbles re: the fine-grained legal theory. To get us to reach a conceptual ledge, Rick writes: Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth.

I recognize that Rick is being somewhat quick here, so I take it with a grain of salt, but consider:
a) public nudity may be no more shocking to us now than inter-racial coupling was to some communities in the past. And so the public aspect of public nudity is not really a conceptual ledge if what predicates opposition to it is merely aesthetic offense, no different in kind to the revulsion that racists had when they saw whites kissing blacks in public, or more recently, gays kissing each other in public.

Here the slope really is slippery--of course, its slipperiness is based on how pliable the social norms are. It might well be that the norms will be stickier here because of expectations of tangible harms. Maybe public nudity is opposed because it will cause rubbernecking and car accidents. But as society becomes more naked, less rubber-necking occurs. There's a dynamic loosening of the norm. In this vein, it's worth thinking of how some traditional societies view the allure of even fully-clothed women not wearing burkas or hijabs (or shaytels...). In those societies, if citizens wore what my students at FSU wear to class, it would be cause for commotion. Here and today, it barely registers.

b) the bestiality issue cannot rest on the ledge of failing to "foster" "emotionally important human sociability." First, that might suggest a reason not to have pets more generally. 

Second, it suggests that a person couldn't have sexual relations with a dog that are as emotionally meaningless as some of the hookups that occur in stripclubs, streetcorners, and bushes in the park. One might be a loving son and brother and husband, and still seek quick anonymous sex elsewhere. No necessary tension between human sociability capacities and quick sex with Trixie the sheep. (Think Woody Allen.)Bestiality to my mind is a concern because we can't think of animals as consenting meaningfully...  and it's the inherent coerciveness that seems problematic.  But if that logic does the work, it should also suggest a principle of vegetarianism because animals also don't consent to their slaughter.

c) polygamy is complex, as you know; much more so than just thriving on the subordination of women. One need only look at a) the existence of polyandry across time and space (which is admittedly less prevalent than polygny), and b) the fact that polygamy activists make their claims on several grounds including: i) it actually increases women's opportunities in the workplace vis-a-vis childcare responsibilities, and ii) it respects women's and men's liberty interests in polyamorous relations.

So only bestiality really rests upon a "conceptual ledge." The public nudity and polygamy examples are just aspects of social norms subject to the normative force of the liberty-advancing principles that supervened on miscegenation laws and now prohibitions against SSM. Let the slope slip against objections of "ickiness" -- at least as it relates to the use of the criminal law in a diverse liberal society.

Btw, there was a good post on Volokh.com recently by Dale Carpenter trying to draw the distinctions between SSM and polygamy.**  But color me unpersuaded. Dale links to this post by John Corvino, a philosopher interested in trying to stave off the slippery slope. It strikes me that Corvino's answer is missing the force of the liberty arguments at the heart of private ordering, and when SSM opponents adduce the parade of "horribles" there is no danger to those of us who believe it's really just a parade of "wonderfuls" or more plausibly, a parade of "tolerables."

**I can't link to it b/c for some reason the volokh.com site is not responding.

The Perils of Vicarious Liability in the Parenting Context

Via the indefatigable Doug at SLP, I just came across this story detailing the planned incarceration of a father for the failure of his daughter to achieve a GED degree. I'm not kidding.

A man ordered by a judge to make sure his daughter hit the books has found himself in jail because she failed to earn a high school equivalency diploma. Brian Gegner, of Fairfield, was sentenced last week to 180 days in jail for contributing to the unruliness or delinquency of a minor. He was ordered months ago to make sure his 18-year-old daughter Brittany Gegner, who has a history of truancy, received her GED - something that hasn't happened yet. Brittany Gegner, who said Monday that she plans to take a required GED test this month, said her father shouldn't be blamed for her failure because she has been living with her mother. "It was my wrongdoing, not his," said Brittany Gegner, whose fiance and 18-month-old daughter also live at her mother's home in nearby Hamilton. "He shouldn't have to go to jail for something I did."  Her mother agrees. "Brittany is almost 19 years old now and I think it's unfair to put her father in jail," said Shana Roach. "She's an adult now, and it's not right to rip an innocent man from his home."

Brian Gegner's wife, Stephanie Gegner, said she and her husband are afraid he will lose his job if he remains in jail. She said they tried to keep his daughter in school.  "You'd take her to school and she'd go out the other door," Stephanie Gegner said.

It's possible there are facts here that the story omits. Indeed a little research via google reveals that the father was in fact living with his daughter when the truancy occurred.  And "she has since taken the GED exam and passed all but the math portion, which she has failed several times."

But the larger point remains: can the law justifiably punish a parent for the actions of a child? In our forthcoming article, Punishing Family Status (BU LRev 2008), Ethan, Jennifer and I address these vicarious liability laws and the way that they impose criminal liability by virtue of family status.  A snippet of that analysis follows after the jump.

The first three forms of vicarious liability discussed earlier – truancy laws, curfew laws, and contributing to the delinquency of a minor – seem relatively uncontroversial to most people, because in those instances the adult in question has committed an affirmative act with a culpable state of mind, the traditional core requirements for a crime. So, in some sense, these are better viewed as “impure” vicarious liability laws. But if the laws in question only create criminal liability on account of a person being part of a designated family relationship, where the absence of that family status wouldn’t trigger liability for the same conduct, then those laws warrant scrutiny under our framework.

As might be expected, we remain skeptical of these sorts of laws because to the extent that they reinforce special duties that flow in light only of state-sanctioned family status, they are simple family ties burdens. If an element of a vicarious liability crime is a relationship of family status, it would offend basic principles of equal treatment, since those in relationships of autonomous care-giving that behave identically but do not have recognized family ties would not be considered culpable.  That result cannot stand, if the liberal state takes seriously the idea of approaching all its citizens with equal concern and respect.  Accordingly, to the extent that the states that embrace these regulations think they are necessary, we would urge those legislatures to draft their laws in ways that do not burden the family directly.  We can imagine several ways around this problem, whether it involves exacting liability on all voluntary care-givers – or more carefully circumscribing these crimes so that family status is not used as an element.

More controversial still are the strict liability offenses.  Should a parent or other caregiver be prosecuted on a strict liability theory, facing criminal sanction simply because the child under her or his care has committed a crime?  Put most starkly, does one’s status as a caretaker suffice to warrant perhaps the greatest family ties burden of all: sanction through the criminal justice system for the criminal conduct of another solely because of family status?

We think the answer must be no in the absence of a blameworthy state of mind and an actus reus by the caregiver in question.  As we have suggested in this Article, many family burdens imposed by the criminal justice system are in place because of the idea that they promote an ethos of care.  Yet, imposing criminal responsibility on a strict liability theory does not seem to promote more effective care-giving than a negligence standard would.

Let us illustrate with a concrete example.  Imagine a parent goes out on a date and leaves a twelve year-old alone in the house with unsecured firearms and an unlocked liquor cabinet, when the parent knows the child has attempted to play with the guns and drink liquor on prior occasions. If the twelve year old proceeds to get drunk and use the parent’s gun to shoot up the neighbor’s car, the parent has been reckless, or at a minimum, negligent by “failing to exercise reasonable control” over the child.  Imposing liability in this scenario will signal both to this particular caregiver, and other caregivers in the community, that caregivers must supervise their children more vigilantly.

But imagine instead that the child buys the gun in a school locker room with his money from an after-school job and shoots up the neighbor’s car on the way home from school, despite repeated admonitions by the parents to stay away from guns and people with guns. Under an ordinance like the one passed (and struck down) in Ohio, parents could face prosecution on a strict liability theory because their child had been charged with a crime.  But such a prosecution would have no impact in terms of promoting better care-giving; there is no care-giving the parent could have done that would have prevented the crime in question, other than refrain from parenting altogether. If we are to believe that these standards of conduct are emitting signals to would-be parents, the strict liability standards would simply encourage people to forbear from parenting or to take their chances in the enforcement and genetic lottery. This is not purely hypothetical either. To the extent we want to use criminal law to project social norms about correct values, the strict liability standard in some vicarious liability statutes will deter people from becoming foster parents, adoptive parents of teenagers, or on the margins, parents of their own biological children. That’s not the signal regarding the promotion of care-giving that society should emit.

Thus, as a general matter, we are dubious about the value of these statutes both as to their capacity to reduce crime through parenting vigilance or to signal commitment to parenting values. Equally important, we note that limiting vicarious liability to those in a state-sanctioned family unit seems underinclusive and discriminatory. If these statutes are to do the work of crime-reduction that its supporters promise then they should be structured in such a way that they apply to all those who have voluntarily assumed care-taking and custodial responsibilities for the minors in their households. In other words, if vicarious liability is embraced by legislatures because of its crime-reduction promise, then it should be applied whenever there is a relationship of asymmetrical dependency and voluntary care-giving, and not just a strictly construed version of biological parent to child. For at least this way, more of the deterrence will be achieved by extending its ambit to same-sex or non-married child-rearing partners, and the importance of the care-giving value will be communicated to those who have opted to raise children.

Some news of varying degrees of excitement:0-11

Ah, the beginning of exam-grading period: it is, by my lights, the best time to procrastinate by writing incessantly. And while my wife could have been eating donuts with Jack in Tucson the last few days, I've had the chance to finish assemble cobble from here and there a shitty first draft of Implementing Retributive Damages. Ok, "draft" is overstated; there are still various holes  in the text to write.  But as the second of a trilogy -- you can read a more developed draft of the first part, Retributive Damages, up on SSRN --  Implementing Retributive Damages raises and hopefully resolves all sorts of neat policy questions that I had to defer from the first installment. 

This bricolage comes just in time. On Thursday I'm slotted to present the basic ideas of the paper to my colleagues here at FSU Law over lunch before going on the road with it this summer to Vancouver, NYC, and Palm Beach. If you're in the 'Hassee this Thursday, and interested, please let me know--you're welcome to come munch on Qdoba or some such with us while I talk about pluralism about punitive damages purposes, punishing entities, dirty-handed plaintiffs, and procedural safeguards for civil defendants facing retributive damages.

Speaking of FSU Law, some really great news in the last few days has emerged. First, our graduates just led the state in bar passage--again. Florida State ranked first among Florida’s ten law schools in the passing rate on the February 2008 administration of the Florida Bar Examination. Our first place passing rate of 93.6% was followed by UF’s passing rate of 88.3%. The overall passing rate was 76.4%. Florida State Law has had the highest passing rate in four of the last five administrations of the Florida Bar Exam.  Second, and at least equally impressive, the Dean recently announced that according to data recently released by the ABA, Florida State Law has the 13th best alumni giving rate among the nation’s law schools, at 26.1%, with only two state schools ahead of us, UVa and UCLA.  Given FSU's relative youth and its status as a public law school, I think that sense of alumni engagement says something quite good about the school -- and our development office!  Moreover, it looks like this coming year we will have a burgeoning smatter of criminal justice-related activities and initiatives that I'll be coordinating with Wayne Logan. More on that to follow.

Last, though definitely not least, Prawfsfest! is coming!! After two successful incubator workshops at Miami and Loyola LA the last two Decembers, we are now contemplating a move toward doing them on a semi-annual basis instead of an annual one. Well, that's the ambition; that, and warm weather hosts during the winter.  Toward that goal, I'm thrilled to announce that Dean Nora Demleitner and her colleagues at Hofstra will be hosting Prawfsfest! this coming July. Details are still being worked out, but we will gather in NY before the SEALS Conference. Stay tuned for more info on this great match: Hawfsfest! at Prawfstra. Er, I meant Prawfsfest! at Hofstra.