PrawfsBlawg

Time delayed sentencing gets off the ground!

Thanks to Tony Sebok, my attention was just adverted to United States v. Bueno, a recent  opinion by Judge Baer (SDNY) involving the sentencing of an irreplaceable caregiver. Bueno has 3 young kids and her husband was also convicted and sentenced, leaving no other available and willing caregivers. As a result, Judge Baer effectively (though unwittingly) implemented the time delayed sentencing idea that Ethan, Jennifer and I proposed in our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The book takes a relatively critical eye toward the idea that caregivers as such should receive sentencing discounts but when there are irreplaceable caregivers who commit crimes that warrant incarceration, that period of incarceration should occur after the caregiving vacuum is filled. In the Bueno case, Judge Baer basically deferred the custody and supervised release of Bueno for 3 years or until an alternative can be found. 

My own sense is that this is both too lenient and too harsh (although not terribly so). I would allow the delay to take place until the caregiving need is filled (ie., until the youngest current child is 18). But I would also place some modest restrictions on the liberty of Bueno during that period of delay so that  Bueno herself and others do not think she is able to enjoy a "windfall" based on the benefit created by the time-delay before sentencing. In other words the defendant would have to endure some extra sanctions to enjoy the benefit afforded by the delay in the sentence. Of course, if the conditions associated with supervised release  could be imposed prior to the incarceration, then the defendant is really only engaged in some time-shifting, and perhaps that's acceptable because the state itself recognizes the social benefit of that shift and that the principal beneficiaries of that are innocent third parties, not the defendant himself or herself.

In any event, this view might be somewhat controversial. Professors Ristroph and Murray seem to think (per their critique in the YLJ) that obligations to care are basically fungible with obligations to serve time. We reject that argument in no uncertain terms in our reply, which you can find here. Are we right?

Reminder: Crim Prof Conference at Law and Society Today thru Sunday in Chicago

Note: Bumped to the front from last month.

Friends,
those of you coming to Law and Society in Chicago should note that the following 12 panels will be part of the "shadow CrimProf" gathering that Alice Ristroph and I have tried (somewhat ineptly) to assemble in the face of the staggeringly odd Law and Society panel rules. I'm excited to say that we have drawn about 50 scholars from schools across North America.  I encourage you to attend as many of these panels as possible. The panelists themselves will have exchanged drafts of their papers about a week or so before the time of the conference. If you see a panel paper you would like to read, and it's not on SSRN already, then please contact the author in advance of the conference so that person will benefit from your feedback at the time of the conference, if at all possible.

You'll notice we have four book panels out of the 12 conference panels. Two of the book panels (Dripps and Slobogin) are roundtables relating to manuscripts; two of them are for books that were recently published (Bergelson and Logan). This is something I hope we can replicate in future iterations of this conference.  I hope we'll be able to have a happy hour in Chicago related to this gathering--more info on that shortly. After the jump: the schedule with the appropriate code #'s for sessions, and the participants and their papers.

Thursday May, 27
8:15am to 10:00am
       Police and the Courts: Judicial Management and Evaluation of Law
Enforcement Activity 1110
               Building: Renaissance, Room: tba 10
Session Participants:
Chair: Richard E Myers (University of North Carolina) 
The Perennial Police Gaming Problem and the Need for
Articulation-Forcing and Data-Development Rules in Constitutional
Criminal Procedure
*Mary D. Fan (American U/U of Washington)
GPS Tracking as Search and Seizure
*Bennett L. Gershman (Pace University)
Rethinking Reasonable and Articulable Suspicion
*Richard E Myers (University of North Carolina)
Judging Police Lies: An Empirical Perspective
*Melanie D. Wilson (University of Kansas)


10:15am to 12:00pm
       Author Meets Reader--Juvenile Justice: The Fourth Option, by Mark
Fondacaro and Christopher Slobogin 1212
               Building: Renaissance, Room: tba 12

Session Participants:
Chair: Hillary B. Farber (Northeastern University)
Author: Christopher Slobogin (Vanderbilt University) 
Reader: Tamar R. Birckhead (University of North Carolina, Chapel Hill)
Reader: Daniel Filler (Drexel University)
Reader: Melissa Hamilton (University of Toledo)
Reader: Giovanna Shay (Western New England College)

2:30pm to 4:15pm
       Criminal Law 01--Children and Families in Criminal Law 1410
               Building: Renaissance, Room: tba 10
Chair: Tamar R. Birckhead (University of North Carolina, Chapel Hill)

Competence and Compellability of Parents as Witnesses against Their
Children: A Comparative Perspective between the United States and
Australia
*Hillary B. Farber (Northeastern University)
Special Arrangement
*Catherine M. Grosso (Michigan State University)
Domestic Violence and State Intervention in the American West and
Australia, 1860-1930
*Carolyn Ramsey (University of Colorado)
Chasing Science: The Troubling Case of Shaken Baby Syndrome
*Deborah Tuerkheimer (DePaul)
Discussant: Melissa Hamilton (University of Toledo)



Friday May, 28
8:15am to 10:00am
       Criminal Law 02--Author Meets Reader--Bentham to Blackstone: The
Nineteenth Century Transformation of Criminal Justice, by Donald
Dripps 2110
               Building: Renaissance, Room: tba 10
 Chair: Carolyn Ramsey (University of Colorado)
Author: Donald Dripps (San Diego Law School)
Reader: Katherine Darmer (Chapman University)
Reader: Andy Leipold (University of Illinois, Champaign)
Reader: Wes Oliver (Widener University)
Reader: Ronald Wright (Wake Forest University)


10:15am to 12:00pm
       Criminal Law 03--The Agents and Subjects of Criminal Law: Officers,
Entities, and Individuals 2210
               Building: Renaissance, Room: tba 10

Chair: Dan Markel (Florida State University)
Torture and Cognitive Illiberalism
*David Hoffman (Temple University), Dan Kahan (Yale
University), Donald Braman (George Washington University), Ryan Goodman (New York
University), 
Punishing Entities (Civilly)
*Dan Markel (Florida State University)
Bill Stuntz and the Principal-Agent Problem in American Criminal Law
*Richard H. McAdams (University of Chicago)



12:30pm to 2:15pm
       Criminal Law 04--Author Meets Reader--Victims’ Rights and Victims’
Wrongs: Comparative Liability in Criminal Law, Vera Bergelson 2310
               Building: Renaissance, Room: tba 10
Chair: Anthony M. Dillof (Wayne State University)
Author: Vera Bergelson (Rutgers University, Newark)
Reader: Luis E. Chiesa (Pace University)
Reader: Brian Gallini (University of Arkansas)
Reader: Cecelia Klingele (University of Wisconsin)
Reader: Susan Rozelle (Stetson University)



2:30pm to 4:15pm
       Criminal Law 05--Problem Solving in Criminal Justice 2410
               Building: Renaissance, Room: tba 10

Chair: Eric J Miller (Saint Louis University)
Quasi-Crime and Quasi-Punishment: Criminal Process Effects of Immigration Status
*Gabriel Jack Chin (University of Arizona), Doralina Skidmore
(University of Arizona)
Another Glance toward the Mentally Ill Offenders: Should We Change Departments?
*Renata F de Oliveira (Universidade do Minho), Rui A. Gonçalves
(Universidade do Minho)
Supervision Courts: Rethinking the Rationale for the Problem Solving
Court Movement
*Eric J Miller (Saint Louis University)
Advising Defendants on the Immigration Consequences of Criminal
Convictions: Whose Role Is It, Anyway?
*Yolanda Vazquez (University of Pennsylvania)


Saturday May, 29
8:15am to 10:00am
       Criminal Law 06--Criminal Procedure: Adjudication 3110
               Building: Renaissance, Room: tba 10

Chair: Adam M Gershowitz (University of Houston)
Judging DWI Trials: The Case for Eliminating the Right to Jury Trials
for Misdemeanor DWI Cases
*Adam M Gershowitz (University of Houston)
Double Jeopardy and Mixed Verdicts
*Lissa Griffin (Pace University)
Jury 2.0
*Caren M Morrison (Georgia State University)
Big Law's Sixth Amendment: The Movement of the White-Collar Bar into
Large Law Firms
*Charles Weisselberg (University of California, Berkeley), *Su Li
(University of California, Berkeley)



10:15am to 12:00pm
       Criminal Law 07--Punishment Theory 3210
               Building: Renaissance, Room: tba 10

Chair: Marc O. DeGirolami (St. John's University)
Punishment, Permissibility, and State Intention
*Vincent Chiao (Harvard University)
Criminal Theory as History of Ideas: The Thought of James Fitzjames Stephen
*Marc O. DeGirolami (St. John's University)
Free Will Ideology and the Moral Status of Punishment
*John Humbach (Pace University)
Punishment's Justification
*Jeffrey Renz (University of Montana)
Discussant: Matthew Lister (University of Pennsylvania)


2:30pm to 4:15pm
       Criminal Law 08--Topics in Criminal Law Theory 3410
               Building: Renaissance, Room: tba 10

Chair: Mark D. White (CUNY, College of Staten Island)
Modal Retributivism: A Theory of Sanctions for Attempts and Other
Criminal Wrongs
*Anthony M. Dillof (Wayne State University)
You Know You Gotta Help Me Out
*David Gray (University of Maryland)
The War on Drugs Turns 40
*Alex Kreit (Thomas Jefferson School of Law)
Tailoring Objective Standards to Individuals
*Kevin C. McMunigal (Case Western Reserve University)
The Law, Economics, and Philosophy of Double Jeopardy Protection
*Mark D. White (CUNY, College of Staten Island), Kaia Huus (CUNY,
College of Staten Island)

4:30pm to 6:15pm
       Criminal Law 09--Race and Criminal Justice 3510
               Building: Renaissance, Room: tba 10

Chair: Brooks Holland (Gonzaga University)
Masculinity and the Gates Arrest: Two Professors Share Their Experiences
*Frank R Cooper (Suffolk University), *Josephine Ross (Howard University)
Racial Profiling and a Punitive Exclusionary Rule
*Brooks Holland (Gonzaga University)
The North Carolina Racial Justice Act Study: Preliminary Findings on
the Role of Race in the North Carolina Capital Punishment System
Catherine M. Grosso (Michigan State University), *Barbara O'Brien
(Michigan State University)
Under the Influence: Implicit Bias, Proactive Policing, and the Fourth Amendment
*L. Song Richardson (DePaul University)
Discussant: Rick Banks (Stanford University)


Sunday May, 30
8:15am to 10:00am
       Criminal Law 10--Author Meets Reader--Knowledge as Power, by Wayne Logan 4105
               Building: Renaissance, Room: tba 05

Chair: Corey Rayburn Yung (John Marshall Law School)
Author: Wayne Logan (Florida State University)
Reader: Arnold Loewy (Texas Tech University School of Law)
Reader: Mary Kreiner Ramirez (Washburn University School of Law)
Reader: Monica Williams (University of California, Davis)

Graham's significance

Earlier this evening, I had a chance to read the new SCOTUS opinion in Graham (invalidating life without parole sentences for juveniles convicted of nonhomicidal crimes) and it's a doozy. I'm supposed to write something up on Graham over the next month for the Federal Sentencing Reporter, where Michael O'Hear is hosting a gathering of folks to offer some short reflections on the significance of Graham. The group includes scrubs like me alongside Rachel Barkow, Richard Frase, Alice Ristroph, John Stinneford, Jae Lee, Eva Nilsen and David Gray.

Unsurprisingly, Doug Berman's already had a lot of interesting reactions to Graham over at the SLP blog. And over at Concurring Opinions, Jae Lee has highlighted a key paragraph from the majority's opinion that potentially paves the way for eroding the silly death is different jurisprudence. Certainly Justice Thomas' sharply written dissent seems to concur with Jae!  If they are right about what Graham augurs, and I think and hope that they are, then it also means that we'll be able to see the logic of Panetti v. Quarterman (no execution of the presently incompetent) get some traction outside the death penalty context, a point I explored and argued for in this article from last year. Stay tuned for more on the doctrinal specifics of that to come.

On Kagan and HLS Hiring, Again...

I've been off the box the last few days but, as I'm catching up, I see that there's a bit of a tempest lately over the hiring record of Elena Kagan while she was Dean at Harvard Law School. A year ago, as Kagan's name was on the shortlist for the seat that would become Sotomayor's, I called attention on this blog to some comments from apparatchik Wendy Long, who argued that Kagan shouldn't receive credit for creating intellectual diversity on the HLS faculty since only 3 of her hires were conservatives or libertarians (Goldsmith, Vermeule, and Manning).  Now a number of profs are challenging (if not exactly attacking) Kagan because her hiring record at HLS is viewed as sub-optimal with respect to women and minorities. UPDATE: Kagan is now being reported as nominee for SCOTUS.

When I wrote my initial post, I noted that the arguments against Long would also be relevant to the arguments that could be made on other grounds related to diversity even though some differences between the two sets of arguments could plausibly be advanced. Now that those challenges have come to pass, it seems there are a few points worth reiterating and bearing in mind before casting aspersions on Kagan's commitment to diversity.

First, the dean of HLS (like other law schools) cannot simply appoint persons to the faculty of her choosing.  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. 

Second, if the number of conservatives or libertarians (or women or minorities) 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 (just like the new batch of critics) provide no information on the number of offers made but rejected to the target groups. Third, if a faculty wishes to improve itself, it is trying to think about hiring in terms of whether the prospective candidate is "above the median" of the existing faculty. That's a pretty high standard for a school like HLS and it may well be that the people who satisfy those criteria (whether conservatives or others) are so valued by the institutions where they are currently that going to HLS would require a substantial paycut (since, bracketing toys such as housing deals, HLS pays roughly along the lines of seniority). Now perhaps seniority is a dumb way to calibrate compensation, but one can imagine that it has some benefits too, such as helping protect the institution from claims that it discriminates (via pay differentials) against faculty members on the basis of race/ethnicity or ideology. 

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 substantial way on the grounds of the faculty hired during her tenure as dean. Problems in faculty hiring are the product of a "they," not a she. (Conversely, if Kagan were to trumpet her faculty hiring as an achievement that redounds only to her credit, such claims should be also dismissed.)

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 (or female or minority) 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? If the answers to those questions are yes, then those are marks of a good dean. (There are some suggestions the answer is no, here, btw.) And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But we should be careful in the end not to conflate the achievements  and virtues of a good dean with the achievements and virtues that conduce to being a good Justice.   

 

 

Some Critics Weigh In on Privilege or Punish (Version 2: Yale LJ)

As alluded to almost a year ago, the April 2010 issue of the Yale Law Journal (website) now has links to two very interesting review essays of Privilege or Punish: Criminal Justice and the Challenge of Family Ties, my book with Jennifer M. Collins and Ethan. The first essay is by Prof. Alafair Burke (Hofstra) and it is titled, When Family Matters. Go ahead and throw Alafair a few downloads over here on SSRN. The second review essay, by Professors Alice Ristroph (Seton Hall) and Melissa Murray (Berkeley), is called Disestablishing the Family. You can download that piece over here on SSRN.  

Initially these reviews were supposed to appear with our reply essay in the same issue of YLJ under the "Features" rubric, but b/c of some innocent snafu, our response to these two rich and provocative pieces will actually appear a bit later this spring--I believe in the June issue. For those of you keen to see it beforehand (hi sis!), we've just posted a penultimate draft of that piece on SSRN, and it is entitled Rethinking Criminal Law and Family Status. I hope to blog a bit more about the substance of this exchange over the coming weeks. In brief, though, Part I of our Essay defends our "equal protection" model for analyzing family status against the "j'accuse" of statism made by R-M. Part II plays offense against R-M's proposed model to disestablish the family, and Part III engages Prof. Burke's critiques about the book's argument and scope. Needless to say, we are grateful to YLJ for hosting this exchange and to Alice, Alafair, and Melissa for the effort and verve with which they've engaged our work.

P.S. As mentioned before, you can find another robust exchange of ideas about the arguments in our book in this symposium in the New Criminal Law Review (featuring criminal and/or family law gurus Doug Berman, Naomi Cahn and Jack Chin).

Geistfeld on Polsky and Markel's Taxing Punitive Damages

Over at the TortsProf Blog, NYU Prawf, Mark Geistfeld, just posted an interesting set of reactions to the draft of Taxing Punitive Damages that Gregg Polsky and I have posted on SSRN. Thankfully, these reactions appeared prior to publication (go SSRN!!) and so, with some luck and the indulgence of our editors, Gregg and I will have the chance to consider and respond to Mark's comments over the next few weeks as we tweak our draft. (Naturally, we invite others to share their thoughts with us too, either online or offline, prior to publication. And if you'd rather hold your fire until after the piece is out, Virginia Law Review runs "In Brief," an online companion that it will use to host responses to our piece, and our eventual reply.)  

Mark's comments appear below: 

As the academic year winds down, I usually rearrange the piles on my desk in an effort to mark the onset of another summer full of promise and unrealistic expectations. While rearranging the pile “tort-related things I’d like to read when I get a chance,” I came across the article by Gregg D. Polsky & Dan Markel, “Taxing Punitive Damages” (2010) (forthcoming Virginia Law Review).  Earlier this semester I had downloaded the manuscript and dutifully placed the printout in the appropriate pile. Since then, I’ve seen passing reference in the media to the apparent absurdity of federal tax rules that permit the deductibility of punitive damage awards—a deduction targeted for elimination in President Obama’s 2011 fiscal year budget.  How could punishment plausibly deserve a tax break?  The issue is more interesting than I had initially recognized, so I paused to peruse more closely the offerings of Polsky & Markel on the matter. 

They make the nice point that if punitive damages are not deductible, then plaintiffs and defendants have an incentive to “disguise punitive damages as compensatory damages in pre-trial settlements.” Doing so decreases the (after tax) cost of settlement for defendants, creating a gain that can then be shared by the settling parties.  By way of extended analysis, Polsky and Markel go on to conclude that the best way to solve the “under-punishment problem” created by deductibility is not to eliminate the tax break, as everyone had previously concluded, but instead to apprise juries of the deductibility issue so that they will “gross up” the punitive award to offset the tax break. 

Largely missing from the analysis, however, is discussion of how liability insurance affects the incidence of tort liability. Once this dimension of the problem has been recognized, it becomes apparent that there is a much stronger case against the deductibility of punitive damages.

Consider a world (largely like our own) in which every defendant worth suing has liability insurance covering at least a portion of a tort judgment (or any other form of civil liability that permits the award of punitive damages).  Suppose our insured defendant has incurred punitive damages liability. Perhaps surprisingly, this form of liability is not expressly excluded from coverage under the standard-form liability-insurance contracts.  Whether the defendant can actually collect on the insurance, however, depends on whether the jurisdiction permits the insurability of punitive damages as a matter of public policy.

Nine or so jurisdictions, including California and New York, prohibit the insurance of punitive damages.  In these jurisdictions, any settlement between an insured defendant and the tort plaintiff presumably will allocate the appropriate amount to punitive damages. Regardless of how the defendant and plaintiff would otherwise like to characterize the proportion of compensatory and punitive damages covered by the settlement, the insurer is obligated to indemnify only the former category and accordingly will seek to maximize the portion of the settlement attributable to punitive damages (and excluded from coverage).  The insurer usually can police the terms of the settlement directly (the insurance contract gives the liability insurer the right to settle the case).  But if the insurer does not fully participate in the settlement, the terms of the settlement would not have preclusive effect in a subsequent coverage dispute with the tort defendant/policyholder regarding the amount of the settlement that is covered by the policy and properly allocable to compensatory damages.  The liability insurer, therefore, presumably will monitor the portion of the settlement allocable to punitive damages, effectively precluding plaintiffs and defendants from otherwise manipulating settlements in a manner that would thwart efforts to restore the full “sting” of punitive damages by making them nondeductible.

The argument against deductibility then largely generalizes to the remaining jurisdictions that permit the insurability of punitive damages.  The standard-form liability-insurance contracts do not cover liabilities for “expected or intended harms.”  In these cases, the insurer can deny coverage altogether—for both compensatory and punitive damages—and so it will not monitor the portion of any settlement properly allocable to punitive damages.  In light of the settlement problem identified by Polsky and Markel, the best approach would be to deny deductibility for the entire liability.  These instances of intentional wrongdoing clearly implicate the retributive concerns that would create a problem of “under punishment” in the event that the punitive award receives a tax break.  Rather than let the litigants manipulate settlements for tax reasons, why not eliminate the tax break altogether for liabilities of this type?  Why should these intentional wrongdoers be able to deduct any of their liabilities as a cost of doing business?

Regardless of how one answers this question, the case for nondeductibility remains intact.  The public policy concerns implicated by the insurability issue are substantively identical to those posed by the deductibility issue: each allows the tort defendant to distribute the cost of the punitive award to a wider group (other policyholders; other taxpayers).  In deciding to permit the insurance of punitive damages, a jurisdiction has concluded that the redistribution afforded by liability insurance does not create any public policy problem of “under punishment.” So, too, in these jurisdictions the redistribution afforded by the deductibility of punitive damages does not create any public policy problem of “under punishment.” Consequently, even if a tax rule of nondeductibility could be largely circumvented by the settling parties as Polsky and Markel conclude, there is no “under-punishment problem” created by the de facto deductibility of punitive damages.  This does not mean that the deductibility issue is largely irrelevant.  The tax rule against deductibility is still desirable as a federal matter because it furthers the public policy of those states that reject the insurability of punitive damages on the ground that wrongdoers should not be able to redistribute their punishment to others.

Admittedly, I live in a state where punitive damages are not insurable, and the analysis of Polsky and Markel has much more to offer than I have indicated.  They artfully unravel the surprising complexity of what appears to be a rather straightforward issue—whether bad behavior deserves a tax break.  Clearly, I should have put this article into my “read right away” pile (although that pile, of course, also ends up getting shuffled around at the close of the academic year).

 

- Mark Geistfeld

Sheila Lubetsky Birnbaum Professor of Civil Litigation

New York University School of Law

Punitive Damages and Private Ordering Fetishism

In two recent response essays by distinguished torts scholars, Professors David Owen and Michael Krauss, I was charged with "aggravating punitive damages" and instigating the "death of private ordering." 

Who, me?

In seriousness, I have a somewhat more considered and elaborated answer, and I've got a draft of that reply in a new essay up on SSRN by the title of Punitive Damages and Private Ordering Fetishism.  I'd be grateful if you could share with me any thoughts or reactions; it weighs in at just under 10,000 words. Here's the abstract, with links to the full conversation after the jump.

This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two recent articles. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.

You can find the articles Professor Krauss and Owen respond to here:

Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239-340 (2009) (available at http://ssrn.com/abstract=991865 )

Markel, How Should Punitive Damages Work?, 157 University of Pennsylvania Law Review 1383 (2009) (available at http://ssrn.com/abstract=1260019

You can find Professor Krauss's Response here:
Michael I. Krauss, Response, “Retributive Damages” and the Death of Private Ordering, 158 U. Pa. L. Rev. PENNumbra 167 (2010), http://www.pennumbra.com/responses/02-2010/Krauss.pdf

You can find Professor Owen's Response here:
David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010), http://www.pennumbra.com/responses/02-2010/Owen.pdf

Originalism's Old Bulldog: Notes from Scalia's visit to FSU

I earlier mentioned how Justice Scalia was in Tallahassee (for turkey hunting season) the other day. This was just a day before we had an even more prominent guest at the enrichment series for FSU's faculty -- thanks again for coming here, Tracey :-)

As it happens, I did take some notes during Scalia's presentation, which focused on his "shtick" re: originalism. Ever witty and trenchant, Justice Scalia made a number of good points for his team, and he displayed a masterful command of his material and audience. (Kudos go to AS for taking about 15 unscreened questions from the audience and kudos to the FSU students who asked sharp and prepared questions.) Sorry, Larry, but he said nothing about semantic originalism and the interpretation/construction distinction.

I thought I'd share a few of the remarks that I found especially interesting. 

For one thing, I was surprised by Adam Liptak's coverage of Stevens' retirement the next day after Scalia's presentation, because the punchline of the NYT coverage was that Stevens was the last person appointed/confirmed to the SCT on the basis of competence (or independence) as opposed to ideology. Scalia the day before made the point to the crowd that he thought he *was* the last such person, having been confirmed 98-0 by the Senate (with two R's (including Barry Goldwater) not participating in the vote). He offered the view that he didn't think he would be able to get the votes today to be confirmed.

Re: Federalism, I thought Rick Hills would be keen to hear that Scalia's prognosis is that federalism is dead and that Congress can do anything it wants. This ostensibly makes Scalia sad.

Re: Plessy and Brown, he said he thought that Plessy was wrongly decided on originalist grounds, and that Brown would also have been a decision he would have been comfortable voting for on originalist grounds. It's been a while since I read his book on "a matter of interpretation," but I thought it remarkable that he qualified his answer re: Brown with reference to a concern about stare decisis. So, would his faint-hearted originalism lead him to vote in dissent in Brown based on stare decisis? He didn't make that perfectly clear in his remarks, but I thought it a permissible inference that he was saying something like: but for stare decisis, he would have voted in the majority for Brown. Perhaps someone has heard him give a clearer answer elsewhere?

Re: docket selection, he noted that the Court is not in the business of error correction but only uniformity guidance. He said this has been true for at least a century, with a few exceptions: death penalty cases and the Haitian boat people case, because in that situation, they weren't likely to start swimming to New Jersey. I suspect Jack Chin might have something to say about that claim about error correction.

Finally, re: Bock Laundry and textualism, Scalia admitted that that case is often thrown in his face by people thinking he's inconsistent with his textualism, and he even suggested that sometimes that's one of the cases he "wonders" about, i.e., regrets,  but in the end, he said, "I am unrepentant."

Bentham on Stilts, now on SSRN

Chad Flanders (SLU) and I have a draft of a newish paper finally up on SSRN. The paper is called Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, and you can find a draft here. A final version is slated to appear in  Calif LR in August 2010. Comments are especially welcome before April 21st but there's a good possibility that even after that we'll be able to make some minor tweaks, so please send me (or Chad) your thoughts at any level of specificity. Here's the abstract: 

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

Vindicating the rise and rise of Jack Chin, and a random thought re: Team Kagan and SCOTUS

He's been too modest to announce it during his blogging stint, and I've been delinquent in announcing it, but the Supreme Court recently embraced Jack Chin's work on the Strickland obligations of counsel to inform defendants of collateral consequences such as deportation. In Padilla v. Kentucky, which was handed down almost two weeks ago, all of the  seven Justices cited Jack's 2002 Cornell piece with Richard Holmes. Interestingly, the piece was cited five times across all 3  two opinions (majority, concurring, and dissenting). The majority opinion, written by Justice Stevens, was joined by Kennedy and the rest of the fab 4; Roberts and Alito concurred in the judgment, and Scalia & Thomas dissented. Aside from Jack and Richard's piece, the Court also quoted and cited an amicus brief by prawfs in crim law/proc and legal ethics. Who says there's nothing applicable from the world of scholarship??

The case is important for all criminal defense attorneys advising plea deals. While deportation is the focus of the case, Justice Alito's concurring opinion makes clear that deportation will not be the only "collateral" consequence that will be implicated by the Padilla opinion.  That's because it will be hard to restrict the logic here: removal proceedings are concededly a "civil" issue, but the SCT now recognizes deportation as "intimately" if not inextricably connected to criminal convictions. The same can be said of any number of other collateral consequences that attach as a result of conviction (as opposed to simply conduct).

Three other points. 

First, I was surprised and, yes, disappointed to see the stingy position taken by the Solicitor General's office in this case: "In the United States’ view, 'counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case,' though counsel is required to provide accurate advice if she chooses to discusses these matters."  I was heartened to see that this position was rejected. Everyone's now interested in SG Kagan's views as she is on the shortlist for Stevens' seat. I'm a huge fan of "Team Kagan" as a general matter, but I'm not sure how much this position is expressive of her personal views and what she might argue as a Justice. (My sense is that the position she takes as SG is likely to be closer to what her views actually are than if she were simply a private lawyer, but perhaps that is naive in this situation. That said, understanding that the US is her client, it's not obvious why the US government is not well-served by defendants with full and frank advice about the consequences of plea bargains.)

Second, this case might be a fair data point for Barry Friedman's thesis about the SCt's majoritarian tendencies, since the Court here basically entrenched as constitutionally required a practice that has been espoused as obligated under professional norms and is already a feature of many states' plea bargaining processes.  See n. 15 of the opinion, providing cites to over 20 states' laws requiring courts to inform defendants of possibly adverse immigration consequences. While 23 is not 26 or 40, perhaps it's worth noting that Cal, NY, Tex and Fl were among those states cited, so it's likely a majority of the population lives in the states where this happens--probably a better way of representing national majorities than counting states' noses themselves. (Oops: further study shows at least 28 states already adopted the rule in question.)  And while I'm thinking about Friedman, I'd be remiss if I didn't also link to Why Law Should Lead, a very interesting and critical take on Friedman's book by newbie UTex prawf Justin Driver in the New Republic.  

Third, after reading the dissent by Scalia and Thomas, I was not persuaded by their claim  that no principle justifies the extension of Strickland to this situation. This argument of theirs relies on the formality associated with the criminal prosecution and the collateral consequences arising from conviction, such as deportation. Scalia and Thomas rejected formalist distinctions between sentencing fact vs criminal elements in the context of Apprendi-land, culminating in their participation in the majorities for Blakely and Booker (merits). It's not clear why their realism must break here.

Specifically, the dissent in Padilla is wrong to think there's no principle involved here that would justify the requirement of the majority. When punishing someone like Padilla, the state is speaking in a form of communicative retributivism. There's no way of reasonably disclaiming that the deportation is also not part of the communication of condemnation associated with punishment. Absent the conviction, the deportation doesn't occur, and there's no way of justifying the deportation penalty in a manner that is simply a matter of "risk regulation." (The case for risk management would ironically be stronger on the other hand if there were only conduct, not a conviction, that served as the basis for deportation.) Thus as long as the gov't is speaking in that register of condemnation, it is on the hook for justifying that burden as part of its punitive arsenal and it must also provide appropriate levels of procedural safeguards to ensure fairness in the imposition of these sanctions. 

Taxing Punitive Damages, coming soon

My colleague Gregg Polsky and I have a piece called Taxing Punitive Damages that we're pretty excited about, which we've just uploaded finally to SSRN. It's a draft and so we welcome comments and feedback. I may take the liberty of sharing some more of the paper in some coming posts, but in case I don't get to that soon, here's the link to the whole thing, and the abstract appears below:

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believed they deserved to pay. 

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our view, however, such a blanket nondeductibility rule would, notwithstanding its theoretical elegance, be ineffective in solving the under-punishment problem. In particular, defendants could easily circumvent the nondeductibility rule by disguising punitive damages as compensatory damages in pre-trial settlements. 

Instead, the under-punishment problem is best addressed at the state level by making juries “tax aware.” Tax-aware juries would adjust the amount of punitive damages to impose the desired after-tax cost to the defendant. As we explain, the effect of tax awareness cannot be circumvented by defendants through pre-trial settlements. For this and a number of other reasons, tax awareness would best solve the under-punishment problem even though it does come at the cost of enlarging plaintiff windfalls. Given the defendant-focused features of current punitive damages doctrine, this cost is not particularly troubling. Nonetheless, a related paper of ours furnishes a strategy for overcoming this tradeoff through some basic reforms to punitive damages law.

Some Critics Weigh In on Privilege or Punish (Version 1: NCLR)

Over at SSRN, I've just posted a bundle of essays that comprise the New Criminal Law Review's symposium on my recent book with Jennifer Collins and Ethan Leib, Privilege or Punish. We are grateful to Professors Doug Berman (OSU, sentencing guru); Naomi Cahn (GW, family guru); and Jack Chin (UArizona, general guru) for their insightful and sharp reactions to our book. The exchange also offers our reactions to these critical challenges in a reply essay. Many thanks to Lindsay Farmer and Mark Penrose and the other good folks at the New Criminal Law Review for hosting this symposium in their pages of the Winter 2010 issue of Volume 13.

The abstract appears after the jump, along with the titles of the essays.

This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled *Privilege or Punish: Criminal Justice and the Challenge of Family Ties* (Oxford 2009). In addition to the three review essays, the collection includes an essay by the book's authors that serves as a reply to this set of critiques. Collectively, we are grateful to the New Criminal Law Review, which is hosting this collection in an upcoming issue.

The essays are titled, respectively:
Berman: 
DIGGING DEEPER INTO, AND THINKING BETTER ABOUT, THE INTERPLAY OF FAMILIES AND CRIMINAL JUSTICE

Cahn:
PROTECT AND PRESERVE?

Chin:
MANDATORY, CONTINGENT, AND DISCRETIONARY POLICY ARGUMENTS

Collins, Leib & Markel: 
(WHEN) SHOULD FAMILY STATUS MATTER IN THE CRIMINAL JUSTICE SYSTEM?

Charity Challenge for Haiti

Update: The Charity Challenge time is almost over but so far Slate's Dahlia Lithwick and some other profs (including Orin Kerr and some of our own permaprawfs) and students  have responded to the challenge. Please give generously.

It's not always possible that this blog will jump on major news events, but I'm a bit sorry we haven't had more discussion on the devastation in Haiti or what to do, if anything.

For what it's worth, Wendi, Benjamin, and I want to make some effort to alleviate the suffering and at least right now, we intend to do so financially. With this post, we're issuing a challenge. For now, our family will match contributions until they sum up to total of $1200. So please make a donation between now and the end of January to one of the organizations below and send me some kind of confirmation from the entity via email (markel at law.fsu.edu)  and we'll match it.

Feel free to issue your own charity challenge in the comments with information on how people can reach you, and whether you'll adopt the same charities or different ones.

Below the fold are the charities we've selected; feel free to give to any of those 3 for our charity challenge. Of course, you can find and select others for your own challenge up on the NYT site.

AMERICAN RED CROSS
Text “HAITI” to “90999″ to make a $10 donation.
2025 E Street, NW
Washington, D.C. 20006
(800) REDCROSS (733-2767)

AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE
JDC Haiti Earthquake Relief
P.O. Box 530
132 East 43rd Street
New York, NY 10017
212-687-6200

PARTNERS IN HEALTH
P.O. Box 845578
Boston, MA 02284-5578
(617) 432-5256

A "disgusting" case of mistaken identity...

The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional.  The reading of Balkin and his critics is surprisingly shallow." As I perused the piece today to see if I'd agree with Larry's assessment, I found that I was listed as one of Balkin's critics.  I had one reaction: Huh? How did I get mixed up in this? 

Well, according to the text accompanying FN 30 of the piece, I apparently wrote that  Balkin “attempts to eliminate the rhetorical power of originalist arguments by making essentially everything an originalist argument.”  Did I actually write that?  Not quite. It doesn't sound that terrible but I didn't recall writing that. Turns out it was someone else, a person purporting to be named Orin Kerr. Easy mistake, right? And at least someone's citing, if not reading, my posts. But based on that gentle post, if anyone now cares, it's probably more accurate to label me as an anti-anti-Balkinite. Not a big deal, but fwiw I'd prefer in the future not to be quickly lumped with Ed Whelan and Matthew Franck, both of whom attacked critiqued Balkin in the National Review Online. I will do or say a lot in the name of intellectual pluralism, but I won't go *that* gently.

One last thought on L'affaire Koppelman: Balkin's got a great sense of humor  (see, e.g., this), and a pre-existing relationship with AK (see, e.g., AK's citation of an email with JB making a (Straussian?) reference to the esoteric teachings of and connections between early and late Balkin), so my guess is that Koppelman got pre-approval from JB on the title.  Based on his comments, I guess Larry thinks consent is no defense here. But, as a matter of "professionalism," would that be true, ie., assuming JB gave consent?

update: Sorry, Ed, didn't mean to suggest the exchange was less than cordial.  

Should anyone really care about "ex parte blogging" or editorializing?

Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case.  Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."

With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.

Still, the spate of day-of-argument editorials stand out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing...

Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice...

As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.

I'm singularly unpersuaded by the arguments here, but I'm having trouble articulating why--feel free to weigh in with other reasons in the comments. It might be that I don't really accept the gist of limits on ex parte communications... but it is more likely the fact that a blog post (of the sort written or linked to via Scotusblog) or an editorial is a cheap way to get informed commentary out there and that the costs of regulation are likely to exceed any of its benefits. Indeed, informed observers (say, the musings on blogs by legal academics) are not necessarily going to be inclined to file an amicus brief in all cases where such expertise or information would be valuable. It might also be the case that the wealthy and powerful are more likely going to succeed in gathering amicus support than the poor and less powerful; thus if there is a perspective to be shared that might end up being helpful to supporting the "downtrodden" or less popular, I wonder if that's a reason to prefer fewer restrictions (whether based on legal norms, or just social ones).

In any event, less boggling is that Fidell wrote this blog post about the student note.  As the Note reports, it was Fidell who passed on to his wife, Linda Greenhouse, former Scotus reporter for the Times, the tip from a blogger that the Court muffed its survey of American law in the Kennedy v. Louisiana case.  

P.S. Out of disclosure, I should add that I've met Fidell and Greenhouse a couple times through DC lawyer and social circles, but I doubt they could pick me out of a lineup...

Best Practices for Appointments Committees

Though it's been a few years since I had to go on the meat market, I'm still pretty keen to make the process for newbies as relatively painless as possible, and this blog has been one way to try to facilitate that goal.  I know a number of my perma-prawf colleagues are either veterans of or currently sitting on their schools' appointments committees (appcomm); the same is true for many guest writers and readers of the blog. To that end, I'd like to draw on the collective wisdom of folks here to compile a set of best practices for appointments committees for law school hiring, and to get the ball rolling, I've offered some thoughts below. 

In no particular order, I can think of 12, some of which are drawn from the queries/complaints in the job market threads we've been running on the blog. They can be found below, after the jump.

1.    Once you have asked a lateral candidate to see if they are interested in being considered, ask the person which three pieces represent their best work that they'd like the appcomm to read. Also ask which pieces signal which direction the work of the person is likely to take in the future. If the candidate is a rookie, ask the same thing if they have multiple pieces, and ask for a research agenda too.

2.    If you bring a lateral or rookie candidate in for a job talk, follow-up with an email or call to a) thank the person for traveling and doing the job talk, and b) let the person know when they can expect to hear any news. Set a default rule: if you don't hear from us within X weeks or Y months, you can assume we've moved on to other candidates. 

3.    Backgrounding: This is something I'd like to solicit feedback on. Some schools probably check only the references provided by the candidate. Other schools are more aggressive (or perform more due diligence?), and many people (both on the committee and off it) will make phone calls to people who know the candidate. These reports are then shared informally or formally at the faculty meeting, leading to discussions of personality (or background--are they likely to come? do they have family or friends in the area?) that may go beyond whether the person would be a good colleague.  How much backgrounding is enough or too much? How much prodding should people perform to see if the candidate? Are there good proxies to assess collegiality for laterals, e.g., the number of times they are thanked for reading other people's drafts? the number of times they've taught classes for sick colleagues?

4.    If you are inviting a rookie, let them know that you'll reimburse the rookie for all expenses associated with the travel to visit the school, including meals, parking, and other normal incidentals, (including internet at the hotel?).

5.    Before the meat market, Appcomm should ask all rookies they are interested in to send them a job talk paper to review before deciding whether to interview them at the meat market. Appcomm should be focused on whether the job talk paper is likely to impress their colleagues prior to deciding to spend 30 minutes of time with them in DC. Making sure the Appcomm only interviews people with papers prior to the meat market will also help Appcomm sift who is likely to be ready from day 1, at least from a scholarship and fire in the belly perspective. The offset to this point is that it assumes the transition rookies are making is from a place where they were able to prioritize writing. This is not true for all candidates obviously. But part of being a successful legal academic (qua scholar) is showing a passion for writing and ideas, and so if you're not in a position where you can write and read scholarship, it helps for you to find that time at the beginning of the day, or evenings, or weekends, etc.  You'll often hear that successful scholars are the ones who are thinking of writing and articles in the shower or buying groceries...

6.    Give people a reasonable amount of time to decide to accept the offer, but explain to them if you are budget-constrained or timing-constrained because you need to do a lot of hiring and can't necessarily wait for them. Consider the following strategy: Your offer (and proposed course package) is good for a month. However, if you can't accept within that period, check back with us later on, as we might still be interested, though if we are, it's possible your teaching package might have to be altered somewhat.

7.    If your school is open to lateral hiring, it's probably better to assign the Appcomm responsibilities from Feb/March to Feb/March rather than July/August to July/August. This allows Appcomm to do a good job of setting hiring priorities before the spring semester is finished and allowing them to scout for laterals (or perhaps misplaced rookies) to bring in for late August, September and October. If the scouting has been done by June for laterals, it still allows appcomm to go through the sheets in August and select which rookies to meet with in DC.

8.    If you're not in an intensely geographically desirable location for non-prawf spouses, consider hiring more couples (or trios, etc) on the market.

9.    This is primarily relevant to point number one. If you are looking at a lateral candidate, it is probably best to first reach out and ask if they are interested in being considered by your school (in terms of subsequent reading of the person's scholarship), rather than appcomm reading first and then contacting, when the person might not have been interested in being contacted. 

10.     Related to 1 and 9: lateral prospects will be less offended about being declined pre-campus visit than post-campus visit. Equally important, it is far better for your colleagues to be spared the cost and time of bringing someone to campus if the committee is not already enthusiastic about the work before the on-campus visit is scheduled. In other words, if a lateral is being invited, it should be because the committee fully expects to support that candidate based on their own views of the work and/or teaching evals, etc--and not wait to form those views based on "temperature reads" after the on-campus visit. If the committee doesn't do its homework up front, it costs the school a substantial amount of time and money. My sense is that each on-campus interview requires at least 125 person-hours for a faculty of 30-40 people, including committee time, candidate time, time at the faculty lunch, time preparing to read the person's work, informal post-visit chats, formal post-visit deliberations. The committee, which is already heavily taxed in terms of its own time, should be leery of bringing in people with any unknowns that are knowable; that is, the committee should recognize that the patience of the faculty is thin and the currency of persuasion with the faculty is subject to depletion.

11.    Related to 9 and 10: If you're contemplating looking at junior laterals, be clear up front about what your tenure clock rules are at your school and at the candidate's school. If your school requires time in rank before tenure of 5 years and you can't give more than 2 year's credit to the tenure clock, don't bother looking at people who are in year 3 or 4 at other schools. The odds are very high that they won't be interested in sitting at your school for an extra year or two, but chances are they won't want to broach this subject up front; perhaps they'll discuss it with your dean at the on-campus visit, but at that point, you've already potentially wasted 125 person hours...

12.    If slots are few in number, it might make sense to have just one large faculty meeting after all the relevant callbacks have been performed, and then have some kind of cumulative voting scheme in place to measure faculty intensity and preferences (something Ethan mentioned the other day in a post) and to rank the candidates in order. If there are more than 4 slots available, chances are it will be fine to have several waves of offers and meetings should be more frequent. 

Ok, I'll stop here. Tell me gently if you think I'm wrong, and please add others in the comments.   

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.