Saturday, September 08, 2018

Elected Prosecutors and Non-Prosecution Policies

Rachel Rollins is likely to be the next district attorney in Suffolk County, Massachusetts.  She recently won the democratic primary, and she is not facing a Republican challenger in the general election.  Rollins is a reform-minded candidate, and so her win has caused a bit of a stir.  Rollins is also causing a stir because she recently released a list of crimes that she says she will decline to prosecute if elected.  The list includes larceny under $250, receiving stolen property, disorderly conduct, and other charges.

If you had asked me ten years ago what I thought about a prosecutor making a public announcement about all of the crimes she would not prosecute, I would have been extremely critical.  In particular, I would have said that prosecutors have a duty is to enforce the laws, and policies of non-enforcement conflict with that duty.  Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors.  But having spent time studying the relationship between criminal justice institutions, I am much less critical of Rollins’ announcement.  In particular, I no longer think that decriminalization decisions are reserved for the legislature.

To be clear, my point about decriminalization is a descriptive one, not necessarily a normative one.  Legislatures have—to a significant extent—delegated the scope of criminal law to prosecutors.  Legislatures have done so by writing overly broad criminal laws.  Legislatures write overly broad laws knowing that prosecutors will not prosecute all behavior that falls within the statutory text.  Prosecutors will make their own decisions about the circumstances under which to prosecute crimes.  In other words, prosecutors are free to decide what conduct to treat as legal and what to treat as permissible.  We got a glimpse of that decision-making when James Comey explained to Congress that, even if Hillary Clinton’s behavior fell within the text of a federal criminal statute, it did not meet the criteria that DOJ uses for actually bringing charges in such cases.

The sheer number of crimes also delegates questions about the scope of criminal law to prosecutors.  Resource constraints make it impossible for prosecutors to bring charges against everyone who commits a crime.  As a result, district attorneys have to make decisions about which crimes to prioritize and which crimes to deprioritize.

Some might respond that there is a difference between making enforcement decisions in the context of individual cases and making enforcement decisions ex ante about an entire category of cases.  But I don’t see the appeal of that argument.  The elected district attorney is the individual who has been empowered to make these important decisions.  So one hopes that she is making those decisions in the context of a general office-wide policy, rather than leaving the decision to line prosecutors in individual cases.  Line prosecutors may have different priorities, and case-by-case decisions would doubtlessly lead to inconsistent decisions.

Some might also object that, even if an elected prosecutor has formal policies about what charges not to bring, she should not announce those policies to the public.  If I know, for example, that my district attorney is not going to prosecute larceny of goods under $250, then (so the argument goes) I will feel free to steal items that cost less.  (Meir Dan-Cohen fans will recognize that argument as one of acoustic separation.)

Even assuming that such public announcements decrease deterrence—and I am uncertain whether they do—public announcements have a significant benefits  :  For example, public announcements can help ensure that law enforcement won’t enforce these laws in an arbitrary or discriminatory fashion.  One major problem with overly broad laws or rarely enforced laws is that they can be used as a pretext for racial discrimination or other animus.  In this respect, overly broad laws and rarely enforced laws are similar to vague laws

Most importantly, public announcements make prosecutors democratically accountable for their enforcement policies.  Unannounced policies do not allow the public to make informed voting decisions or to give feedback to elected prosecutors about how they have chosen to enforce the criminal laws.  But in announcing this list of crimes, Rollins has ensured some measure of legitimacy and accountability for her decisions. 

I am sure that at least some people will read this post and think that it has failed to fully justify or defend a practice of categorical non-enforcement.  There are very intelligent people who have argued against categorical non-enforcement.   In an ideal world, I would probably agree that legislatures should make all criminalization and decriminalization decisions.  In such a world, legislatures would write narrowly targeted criminal laws and would not criminalize more behavior than the system could reasonably prosecute and punish.  But that is not the world we live in.  Since legislatures have decided to delegate significant questions about the scope of criminal law to prosecutors, prosecutors should answer those questions in a transparent and accountable fashion.  That is what Rachel Rollins has done here.

Posted by Carissa Byrne Hessick on September 8, 2018 at 09:37 AM in Carissa Byrne Hessick, Criminal Law, Law and Politics | Permalink | Comments (14)

Wednesday, August 29, 2018

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t.  And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class.  I’m not in a position to assess the methodology or limitations of that study.  But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools.  According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument.  The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money.  So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15?  Or 35?  Or 42?

I’ll admit that I feel somewhat defensive about this topic.  But I want to be very clear about *why* I feel defensive.  I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich.  (And there is a best-selling book out there right now that seems to say it is.)  And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume.  The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school.  And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind  of crappy.  As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money.  They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree.  And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article.  The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class.  And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success.  I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves.  For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know.  And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have.  There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky.  And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring.  There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30.  But it’s not entirely clear why it is easier.  If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed.  But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem.  Is it because Harvard and Yale have better networks for their grads?  Is it because they do a better job teaching their students about academic writing?  Or is it some form of discrimination?  It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made.  In fact, I think it can.  And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion.  We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about.  But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class.  It simply isn’t true.  And it prevents us from having a better discussion about the issue.

Posted by Carissa Byrne Hessick on August 29, 2018 at 10:14 AM in Carissa Byrne Hessick, Life of Law Schools, Teaching Law | Permalink | Comments (41)

Tuesday, June 19, 2018

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison.  That sentence was at the very bottom of the relevant Federal Sentencing Guideline range.  After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months.  The defendant sought a resentencing under the new, lower range.  The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested.  The judge did not provide any explanation for the new sentence.  Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors.  (A copy of the form can be found at the end of the opinion.)

The defendant was entitled to appeal his new sentence, and he did.  Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision.  As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)

[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.

But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case.  Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision.  Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”

I have no doubt that if this sentence had been outside of the Guidelines, then a majority of the Court would have said that an explanation was absolutely required. But instead we see this from the majority:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge's choice among points on a range will often simply reflect the judge's belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in § 3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant's sentence.

I think this may be the most blatant statement from the Court that we need only subject non-Guidelines sentences to appellate review.  Previous decisions had been more circumspect about the idea that within-Guidelines sentences ought to receive essentially no appellate scrutiny.  The Court’s decision to overtly embrace the idea in Chavez-Meza was not accompanied by any real attempt to reconcile differential appellate review with the holding in United States v. Booker, which rendered the Federal Sentencing Guidelines “advisory” in order to protect them from Sixth Amendment challenge.

What is more, the idea that the Federal Sentencing Guidelines represent what most judges think is an appropriate sentence is demonstrably false.  (See pages 1490-91 of this article and pages 6-14 of this article for thorough explanations of why that statement is false.)  As one of the original members of the U.S. Sentencing Commission, Justice Breyer knows that this statement is false.  And he knows that the statement is especially untrue when it comes to sentencing ranges for drug crimes.

Chavez-Meza v. United States is yet another demonstration that the Supreme Court has utterly abandoned appellate review principles in its post-Booker sentencing cases. 

Posted by Carissa Byrne Hessick on June 19, 2018 at 11:48 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (1)

Wednesday, June 06, 2018

SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines.  According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’”  But the Peugh Court rejected this characterization of the guidelines.  It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”

The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection.  "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors."  This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors. 

While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite.  In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine.  In an opinion by Justice Thomas, the Court said they were not, in part because:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).

Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.

(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)

I had been waiting to see whether the Court would take that language from Beckles seriously.  Hughes answers that question.  This is Justice Kennedy’s majority opinion in Hughes:

[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.

Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether.  Beckles isn’t mentioned at all in the majority opinion.

One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits.  Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty.  But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country.  By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous.  As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely.  It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.

Posted by Carissa Byrne Hessick on June 6, 2018 at 04:00 PM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Monday, April 09, 2018

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal.  It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship.  Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process.  Some of these criticisms were entirely fair.  Anthony Kreis, for example, made a strong case for blind review of all law review article submissions.  But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.  And to say that those ideas ought to be turned into books ignores real differences between books and law review articles.  For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments.  That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers.  For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles.  Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers.  Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

That isn’t to say that some law review articles couldn’t benefit from some editing that condensed their length.  And I am quite glad that we no longer live in a world in which 90 and 100 page articles are the norm.  But that is a far cry from saying that the 50-65 page article genre ought to be abandoned in favor of a significantly shorter one.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public.  Eric Segall made this point quite forcefully at the conference when he said that the essays that he has written for mainstream media outlets have had more impact than his law review articles.  Because of the difference in impact, he argued that law schools ought to change their promotion and tenure standards in order to create more incentives for law professors to write shorter pieces aimed at general audiences.

I strongly disagree.  There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.

More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article.  Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue.  To be sure, we can distill our expertise into op eds or commentary.  But if we write essays or op eds that do not significantly draw on that expertise, then we are no different than a pundit.  This country already has a lot of very good legal pundits.  What law professors can add to the public discussion is our expertise.  We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.

There are plenty of other criticisms of law review articles.  And I may someday write a defense (at least a half-hearted one) about the law review submission/acceptance process.  But for now I’ll simply close by saying that we ought not lose sight of the real strengths of law review articles in our haste to criticize the genre.

Posted by Carissa Byrne Hessick on April 9, 2018 at 01:19 PM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (26)

Thursday, January 25, 2018

Judicial Impartiality at Sentencing

The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case.  Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.

Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:

“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."

This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.

First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted.  I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.

To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases.  When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could.  My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends.  We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.

Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids.  In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).

But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence.  This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.

Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree.  They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime.  Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior.  This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.

Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.”  I disagree. The judge never represents the people in a criminal case; the prosecutor does.  A judge’s duty to act fairly and impartially applies to “all duties of judicial office.”  And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.

So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal.  Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.

It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality.  There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered.  But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling.  Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.

Posted by Carissa Byrne Hessick on January 25, 2018 at 01:37 PM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (13)

Sunday, December 31, 2017

Law Professors on Twitter

Like many law professors, I am on Twitter. And like many law professors, I often question whether being on Twitter is a particularly good idea.  Among other things, I enjoy Twitter because it allows me to read the tweets of other law professors and to engage with law professors about their tweets and mine.  But while reading those tweets and having that engagement can be quite enjoyable, it can also be quite the opposite.

In the past few months I have had several conversations with other law professors in which they expressed surprise and disappointment in how other professors have used the Twitter platform.  There are a variety of complaints—some professors use the platform to tweet intemperately about political views, some use it for over-the-top self-promotion, some use it to express legal views far outside of their areas of expertise. One common complaint I have heard—and one that I share—is that law professors use the platform to engage in increasingly confrontational and rude ways with one another.  Professors should always be willing to engage with those who don’t agree with them. And we should always expect our opinions to be challenged.  But Twitter appears to have made the tone of those disagreements much coarser and their occurrence more frequent.

I don’t know how to fix the many problems that Twitter causes in legal discourse. But I’ve drafted a short essay on the topic—which can be found here—and I’d be very grateful for feedback on how to improve the essay.  In the meantime, let’s try to be kinder to each other in 2018.

Posted by Carissa Byrne Hessick on December 31, 2017 at 05:41 PM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (8)

Friday, October 06, 2017

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Posted by Carissa Byrne Hessick on October 6, 2017 at 10:23 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (14)

Monday, September 25, 2017

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

I disagree with your description of the approach that I (and my co-author) have described. I think corpus linguistics can be a very useful tool for providing information that can be relevant to some of the linguistically oriented questions that the law sometimes asks. I don’t think that it should be used to foreclose consideration of other evidence of meaning. While there may be methodological differences among the very few papers that apply a corpus approach, I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”

. . .

I think the dichotomy between, on the one hand, corpus linguistics as an interpretive methodology on par with textualism and purposivism (or even as you characterized it as “a new twist on textualism”), or, on the other hand, corpus linguistics as a source of “marginally” useful information, may not be an accurate way to frame the utility of linguistic corpora for interpretive problems. I think corpus linguistics can be a source of “very” useful information that can provide helpful insight in many cases in which the question that the law poses is a linguistically oriented question. Applications of the ordinary meaning canon are one example. And I don’t think that they are a necessarily “textualist” example. I can’t imagine that there is any jurisdiction in the United States that doesn’t use some variety of the plain or ordinary meaning canon of statutory interpretation, regardless of whether the judges who invoke it are textualists, purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback.

I can’t be sure, but these passages suggest that Mouritsen would like corpus linguistics to be something more than an interpretive tool, but something less than a fully formed theory of interpretation.  But in saying that corpus linguistics ought to be considered “a source of ‘very’ useful information” for *any* method of statutory interpretation, including “purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback,” I find it difficult to understand how Mouritsen sees corpus linguistics as something *less than* a theory of statutory interpretation.  A methodology that ought to be used no matter what your theory of interpretation is bigger than a “tool.” 

To try and get at what, precisely Lee and Mouritsen are trying to accomplish, I asked a question in my last post about whether they think that a frequency analysis is required in statutory interpretation.  Specifically, I asked whether Mouritsen was “backing away from a statement that he and Lee made last month on the Volokh Conspiracy that ‘a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words’”

Mouritsen responded:

[T]hat is not, in fact, what we said. We said: “[A] complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words, the (syntactic, semantic and pragmatic) context of an utterance, its historical usage and the speech community in which it was uttered.” When you take into account each of these factors you may often find that a highly specialized, infrequent sense of a word is the most likely candidate for ordinary meaning. You may find that the context clearly eliminates some or all but one of the senses of the word as possibilities. You may also find that the word or phrase in question has many potential uses in that same context, in which case it is difficult to make the case that any of the potential senses is the ordinary meaning. So the characterization of the approach in your prior post that “if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning,’” to me doesn’t capture the approach we have outlined in our paper. Yes, I think that the frequency with which a word gets used in a particular way, in a particular syntactic, semantic and (sometimes) pragmatic context that is similar to the legal text in question, in the speech community or linguistic register that is similar to the one of those subject to the statute, and from a similar time frame is a relevant consideration when determining the “ordinary meaning” of the words of a statute. As I noted before, “[t]o the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances.” To the extent you have such evidence, I think it would be useful in resolving the question of ordinary meaning.

Mouritsen is, of course, correct that the sentence he and Lee wrote for the Volokh Conspiracy included more than just frequency as a requirement for ordinary meaning.  I thought I’d sufficiently acknowledged that by putting the period to end my sentence outside of the quotation marks.  But in retrospect I should have indicated the additional text with an “. . .”  

But I’m still left with my original question:  Do Lee and Mouritsen think that a determination of ordinary meaning should *always* include a corpus frequency analysis?  After all, Lee and Mourtisen presented the list of factors with the word “and”—that is to say, suggesting that *each* of the factors is necessary for what they called a “complete theory of ordinary meaning.”  But in his response, Mouritsen talks about frequency as “a relevant consideration” and “useful in resolving the question of ordinary meaning.”  So I’m afraid that I still don’t know whether Mouritsen thinks corpus linguistics is something that judges can consider if they feel like it, or if it is something judges ought to consider in every case (even if it isn’t dispositive).

This is the question I am trying to get at in my post (and to some extent in my paper)—What role do corpus linguists see frequency playing in statutory interpretation? I understand that corpus linguistics do not think that frequency will always tell us the meaning of a statutory term—though as I explain in the paper, if that frequency analysis is used by textualists, it may keep the courts from using other tools I think are better.  But in order to understand corpus linguistics as a legal methodology rather than as a linguistic methodology, it is important to know the precise role that Lee, Mourtisen, and others think that frequency data should play.  Is corpus linguistics a method for determining permissible/possible meanings, simply one tool that could be used to help determine ordinary meaning, or something that judges should always consider when choosing between various possible meanings?  After Mouritsen’s comments on my previous posts, I’m just not sure. I don’t see him saying that corpus linguistics should be used merely to determine possible or permissible meanings.  He thinks it can do more.  But how much more is unclear. 

Next, I want to return to the claim that corpus linguistics is a superior tool for discerning meaning because it is objective and scientific in nature.  In my last post, I took issue with Mouritsen’s statements that corpus linguistics “findings are replicable and falsifiable.”  Mouritsen responds:

You disagree with the characterization that the corpus linguistics approach to ordinary meaning is scientific. You acknowledge that the search that gathers the language data is replicable, but argue that “it is the analysis that matters” and different parties can draw (and have drawn) different conclusions from the same data. I simply don’t agree that the idea that people drawing different conclusions from the same data, or subjectively interpreting objective data, undermines the scientific nature of a corpus-based the inquiry. If we are going to classify as “unscientific” any form of inquiry where two people interpret the same data differently (and even subjectively), then we would have to condemn economics and every social science as “unscientific.” We may, in fact, have to shut down many upper level, theoretical courses in the “hard sciences” where subjective interpretation of data may lead different people to different theoretical conclusions. Disagreement about the interpretation of data is part of what Thomas Kuhn called the “route to normal science.” As I noted in my prior comment, corpus data won't “tell you what to do with th[e] information or whether that information is helpful for resolving certain types of questions. Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” The fact that two parties look at the same data and interpret the data differently doesn’t render the enterprise unscientific.

I am afraid that I have to object to how my argument is being characterized. My complaint is not that corpus linguistics is unscientific, but rather that the use of the terms “replicable and falsifiable” suggests that the method connotes the same objectivity as an experiment in the hard sciences.  My post said:

I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus *search* is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the *analysis* that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

I don’t think that it is fair to characterize this objection to corpus linguistics as a claim that an enterprise is “unscientific” if “two parties look at the same data and interpret the data differently.”  Instead, my criticism is that while a corpus search is objective and replicable, the frequency analysis itself is highly subjective.  And the subjective nature of the analysis undercuts the promise of corpus linguistics as an objective method for determining ordinary meaning—something that Mouritsen has claimed in the past. 

Let me give an example of how non-objective a frequency analysis can be using the new corpus linguistics paper on the meaning of the word “emoluments” in the Constitution.  In their methodological section, the two authors explicitly note that the analysis of corpus search results is subjective, and thus they realized that they were likely to code results differently. In order to facilitate consistent coding, they practiced: that is to say, they independently coded material and then met to discuss why they had arrived at particular decisions.  After multiple rounds of these practice coding sessions, they were only agreeing on how to code a particular result 70% of the time.  This 30% disagreement rate after several rounds of practice, in my mind, severely undercuts the claim that corpus linguistics frequency determinations are “replicable and falsifiable” findings.

To be fair to Mouritsen, he backs away from the idea that corpus linguistics can tell us when a judge is “transparently wrong.” But he sticks to his guns about the benefits of corpus linguistics.  He says

the corpus data gives some content to these differing conceptions of ordinary meaning. It forces the judges to show their work and gives a transparent account of what each opinion appears to mean by “ordinary meaning.” This is in contrast to what happens when a court fails to explain what they mean by ordinary meaning and merely invokes the canon and it is not what happens when courts simply cite a dictionary (given that dictionaries don’t typically provide information about ordinary meaning and are typically cited, as James Brudney and Lawrence Baum pointed out in their article “Oasis or Mirage,” merely as window dressing).

I am unconvinced that we need corpus linguistics in order to ensure that judges engage with each other and transparently explain why they think a particular term ought to be read to have a particular meaning.  We already see a significant amount of back and forth between judges when they disagree about meaning—far more than we saw in the mid-twentieth century.  So I don’t think that we need corpus results in order for judges to explain their interpretive decisions; we just need a culture of reasoned explanation in judicial opinions. 

But even if Mouritsen is right that corpus linguistics will cause judges to engage with each other more, that does not make corpus linguistics more attractive to me. That is because I don’t think that a dispute over how to interpret frequency results of a corpus search would improve the quality of an interpretive dispute.  For one thing, as I explained at length in my essay , I don’t think that frequency is a good measure or method for determining the ordinary meaning of criminal laws.  For another, (also explained at length in the essay) I think that judges have a significant constitutional role to play in the interpretation of law—at least the criminal law—and that role is likely to be neglected if judges get caught up in how to appropriately categorize and count database results.  And given that corpus linguistics analysis is so subjective, I don’t see what we add to the enterprise by having judges fight about how to analyze the results of a corpus search.  I’d rather they engage directly with the statute and how the scope of the statute affects individual rights.

Although this post is already long enough, let me address some of the comments that Neal Goldfarb made in his response to my paper.  I (of course) agree with Neal that usage is not distinct from meaning, but rather meaning arises from usage.  But while usage is what determines permissible or possible meanings, those who advocate for corpus linguistics in the law go a step further: They tell us that frequency of usage can help us determine the meaning of an otherwise unclear term.  Here is how Neal explains the argument in his blog post on meaning:

It seems reasonable to expect that the higher the frequency with which a particular sense is associated with a particular type of context, the more likely it is that when the word is used in similar contexts in the future will be understood to have the same meaning. In this way of looking at the issue, the corpus data is seen as a rough representation of the input—what people hear and read—that shapes people’s understanding of word meanings.

It is known that the frequencies with which specific patterns and constructions occur has an effect on how language is learned and mentally processed. It doesn’t strike me as a big leap from that to the conclusion that the strength of the association between the use of a word in a particular type of context will depend at least in part on how frequently one encounters that word being used, in that type of context, to express that meaning. Or at least that seems reasonable if the idea of “types of context” can be adequately defined.

I will get to that, but first I need to note that I’m extrapolating from what I know of the literature, not reporting on what it says; I can’t point to any work that has been done on this specific question. Nevertheless, the assumption I’m discussing is, as far as I know, consistent with the fact that frequency effects are so widespread.

Importantly, Neal tells us that the linguistics literature does not speak to the fundamental premise of corpus linguistics and the law—namely, whether the frequency with which a particular word is used a particular way will affect how a listener is likely to understand the term when it appears in a statute.  Neal admits that he is making a leap from the literature and relying on his own common sense, and I sincerely appreciate Neal’s transparency about the assumptions that he is making.  But I will add that the assumptions that Neal makes do not address my concerns about notice.  Simply put, why would we think that frequency data would capture an average citizen’s intuitions about a statute’s meaning, but not a judge’s?

I can guess that Neal would say that my concerns about notice fail to appreciate the difference between interpretation and comprehension—the subject of his first response to my paper.    As he explains in that post “nobody is suggesting that corpus linguistics be used for investigating those kinds of intuitions. The whole purpose of using corpus linguistics is to learn things that aren’t accessible to intuition.”  But here is why I base my critique of corpus linguistics in the criminal law:  The criminal law does care about an average person’s ability to read a statute and articulate what it allows and what it prohibits.  If corpus linguistics is going to give us a different answer to the question “what does this criminal statute prohibit” than the answer we expect, then there are real problems under the Due Process Clause.  That is because one of the fundamental limitations on criminal statutes in modern America is that they must give people sufficient notice about what a particular law covers and what falls outside of it.  If corpus linguistics is valuable precisely because it gives us different answers than our intuition about statutory meaning, then I think it poses a significant threat to the need for notice in the interpretation of criminal laws.

Now maybe Neal and other corpus linguists would like to argue about what the Due Process Clause requires for the interpretation of criminal laws. Maybe they do not think that judges ought to ask how an ordinary citizen is likely to interpret the scope of a criminal statute.  I’d be quite happy to have that discussion.  Frankly, if lawyers, judges, and law professors are going to say that corpus linguistics ought to play a role in statutory interpretation, I think that they need to have these discussions.  We aren’t linguists. Our inquiry is not simply how might we better understand how people use words.  Our inquiry is how should we interpret statutes.  In advocating for the use of corpus linguistics in the law, that is what we need to be most focused on.  We can’t push that question down the road and say that “best practices” will develop over time. 

While I find much to disagree with in what Stephen and Neal have written, I can’t stress enough how much I appreciate them taking the time and effort to respond to my paper and my blog posts.  The engagement has allowed me to better understand and articulate the problems that I see with corpus linguistics and the criminal law. And it represents the best type of scholarly interaction—fair, dispassionate, and substantive.  And because of their helpful and thoughtful comments, I hope to have another post soon about context and corpus linguistics.

Posted by Carissa Byrne Hessick on September 25, 2017 at 09:56 AM in Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (4)

Monday, September 18, 2017

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (4)

Monday, September 11, 2017

More on Corpus Linguistics and the Criminal Law

When people ask me why I became a law professor, I have an endless list of reasons at my disposal: Teaching is an outrageous amount of fun. I get paid to write and think about interesting ideas.  No one ever expects me to wear a pants suit.  But a major reason that I enjoy being a law professor is that I absolutely love to disagree with people.  

So imagine my delight when I saw how many comments my original post on Corpus Linguistics and the Criminal Law received. Not only did many of the commenters engage with my essay, but the commenters included Steven Mouritsen (who wrote the first law review article suggesting that judges conduct corpus linguistics analyses and who has a forthcoming article with Justice Thomas Lee in the Yale Law Journal on the topic), Neal Goldfarb (who runs a blog on Law & Linguistics and who attended the 2107 BYU corpus linguistics symposium), and Brian Slocum (who also attended the BYU conference and whose co-authored paper formed the basis for my essay advocating against the use of corpus linguistics to interpret criminal laws )

The comments are all quite good, and many of them have helped me refine some of my concerns with corpus linguistics.  But I also want to push back against others.

First, the comments appear to reveal a rather stark divide in the corpus linguistics community: While some are pushing corpus linguistics analysis as a new method of statutory interpretation, others are far more modest about what corpus linguistics can provide.  In his comment, Brian Slocum repeated the modest approach that he and his co-author take in their paper.  Neal Goldfarb (who was kind enough to submit multiple comments) said that “corpus linguistics can have a very significant impact on issues of statutory interpretation,” but he says that his use of corpus linguistics in not intended “to remake the theoretical framework of legal interpretation.”

Having read Brian Slocum’s most recent essay, I was already aware that not all scholars who conduct corpus analyses necessarily endorse it as a method of statutory interpretation.  But the comments thread suggested that even corpus linguistics staunchest legal supporters may have a more nuanced view of how the tool is to be employed.  In particular, Steven Mouritsen seemed uncomfortable with my characterization of corpus linguistics as a method of statutory interpretation that treats ordinary meaning as an empirical question and then answers that question with evidence of how frequently a term is used a particular way.  I had read his previous work as suggesting that corpus linguistics was not merely an additional tool that judges might wish to employ (or not, whatever they might wish), but rather as a new method of interpretation—a variation on textualism.  But as I’ve read and re-read his comments, I am actually not so sure that he is backing away from (what I read as) previous methodological arguments.  In particular, his comment includes the following passage:

“I don’t think anyone is advocating (I certainly don’t advocate) merely characterizing the most frequent sense of a word as the ordinary meaning. That would be arbitrary. But corpus linguistics can allow you to examine the way in which a word is used in a given syntactic, semantic, and (sometimes) pragmatic context, in the speech or writing from a given speech community or linguistic register, and from a given time period. To the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances. This is a presumption that I would think should be rebuttable where there is compelling evidence that an alternative sense of the word or phrase was intended. And I don’t advocate (and I don’t think anyone in the pro-corpus camp advocates) foreclosing consideration of other evidence of meaning simply because the corpus data suggests a particular answer.”

It is a little unclear to me whether Mouritsen is backing away from a statement that he and Lee made last month on the Volokh Conspiracy that “a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words” (emphasis mine). I don’t think that he is, because he is saying that the corpus analysis would create a “rebuttable presumption.”  But nonetheless, it would be helpful if he (or perhaps he and Lee) could clarify whether they believe (a) that corpus linguistics searches and analyses ought to routinely be part of statutory interpretation or if their position is simply that corpus linguistics might sometimes be useful, and (b) whether, in addition to adding corpus linguistics data to the “plain meaning” step of textualism, whether they are advocating for any additional interpretive changes. 

Second, I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus search is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the analysis that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

Don’t believe me? Check out the Michigan Supreme Court’s opinions in People v. Harris, 885 N.W.2d 832 (Mich. 2016).  The majority and the dissent come to the precisely opposite conclusions about the “ordinary meaning” of a statutory term based on the same corpus data.  The corpus data does not (at least not as far as I can see) tell us which of the Justices in that case were “transparently wrong.”  At the very least, the Michigan Supreme Court Justices didn't find the matter transparent.

Third, I am still left with my same concerns about notice and accountability that I raised in my original post (and which are fleshed out in more detail in the paper itself). Several commenters pushed back a bit on these concerns.  And I’ll confess that I am quite certain that it is my role as a criminal law professor that makes these concerns so salient for me.  Some commenters suggested that the corpus database is more likely to mimic public intuitions about meaning because the public reads the newspapers and magazines that make up the corpus.  But judges read those very same sources.  Why would the corpus database be an accurate reflection of a non-judge’s linguistic intuition, but not a judge’s intuition?  I don’t disagree with those who say that corpus linguistics databases capture more information about language usage than does a judge’s own status as an English speaker.  But whether the corpus more accurately captures the average person’s linguistic prototypes than does judicial interpretation is an empirical question about which I have seen no real data. 

Mouritsen offers a few responses to my notice concerns.  But I don’t find them very persuasive.  He says he prefers the bean counting approach of corpus linguistics to judicial intuition because intuition has led to cases like Muscarello, which he finds arbitrary.  I agree that Muscarello was wrongly decided.  But we don’t need corpus data to know that the defendant’s interpretation of “carry” was entirely plausible (if not more plausible) and thus he should have benefited from the rule of lenity—Justice Scalia’s dissent did an excellent job of doing just this.  Mourtisen acts as though corpus linguistics is a check on government power because it would have led to a different result in Muscarello, and he also points out that several other cases he has analyzed would have come out in the defendants’ favor.  This approach misunderstands my critique.  I made a structural argument about the separation of powers and how it requires a substantive role for judges in statutory interpretation.  That structural argument derives its force and legitimacy from the Constitution, not whether more cases will be decided in favor of defendants.  The argument is about constitutional design and it is about requiring judges to take responsibility for the substance of their decisions. I do not think it is a coincidence that Justice Breyer took refuge in a dictionary in Muscarello.  He knew that the dissent’s interpretation of the term was more sensible and accepted; but by clothing his holding in “objective” analysis—like using dictionaries—he could avoid responsibility for the consequences of his decision.

Mouritsen does not deny that he is trying to check government power by decreasing the substantive role of judges to use their own judgment in interpreting statutes.  But he is trying to avoid the notice and accountability concerns by claiming that corpus linguistics will lead to better outcomes for defendants.  In particular, he claims that corpus linguistics will lead more judges to conclude that a term is ambiguous and thus requires the rule of lenity.  Maybe that will happen over time.  But I honestly doubt it.  The Michigan Supreme Court split over whether a corpus search supported two inconsistent interpretations—neither side saw ambiguity.  And I find Justice Lee’s decision in State v. Rasabout, 356 P.3d 1258 (Utah 2015), entirely too similar.  He found twelve examples of one meaning of a term and one example of another meaning in a corpus analysis of 81 examples. So 68 out of 81 usages did not clearly fall within one meaning or another.  Did he find that the term was ambiguous?  No.  He went on to further analyze what he admitted were unclear usages in order to try and fit them into one of the two contested meanings in the case.  I find it difficult to read such a corpus analysis and think that Mouritsen is correct that corpus linguistics will result in more findings of ambiguity.  (And, although I’m not a behavioral scientist, I wonder whether the representativeness heuristic tells us that corpus linguistics data is unlikely to lead judges to find ambiguity.  I’d be interested to hear from those who are more familiar with behavioral economics—am I wrong to think that heuristic bears on this issue?)

Finally, let me emphasize that I understand why corpus linguistics is so attractive. Not only does it appeal to our current fascination with big data, but it also taps into dissatisfaction with the current textualist regime.  My critique of corpus linguistics should not be read as a defense of the current approach to interpreting criminal statutes.  I think that judges need to do a better job fulfilling their historical role as gatekeeper for punishment decisions.  As I note in the essay, I advocate for a much more robust rule of lenity and more expanded and consistent clear statement rules.  If these tools were expanded, they could bring about the predictability and objectivity that corpus linguistics appears to offer.  And they would do so while promoting notice and accountability.

Posted by Carissa Byrne Hessick on September 11, 2017 at 01:01 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (24)

Wednesday, September 06, 2017

Corpus Linguistics and Criminal Law

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

I was fortunate enough to be invited to the 2017 corpus linguistics conference at BYU.  I wasn’t a natural person to invite to the conference—I’m not an expert in statutory interpretation, and my undergraduate degree in linguistics did not prepare me for the sorts of analyses that corpus linguistics requires.  Nonetheless, I was intrigued by the Fed Soc panel, and so I was eager to learn more at the BYU conference.  But as I read the papers for the conference, and as I prepared my remarks as a commentor, I found myself more and more concerned about corpus linguistics as a methodology.  In particular, I found myself concerned about it being used to interpret criminal laws.  Corpus linguistics raised some of the problems that I had confronted in my past research on the void-for-vagueness doctrine, and it touched on many of the issues that I was grappling with in a new project about criminal common law.  After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

As my essay explains, in relying on frequency data, corpus linguistics undermines notice and accountability.  Unless legislators and ordinary citizens were to conduct their own frequency analysis—something that appears far too complex for a non-lawyer, if not a non-linguist, to do—then the public will not know how courts will interpret statutory terms.  And if people do not have advanced notice of the scope of criminal laws, then we may not have fulfilled the promise of due process.  Legislative accountability is also undermined by corpus linguistics.  Legislators could pass laws that will be interpreted differently than their constituents might understand them, and so constituents can’t hold their representatives responsible for their policy choices.

Corpus linguistics also doesn’t solve the problems it sets out to.  There does not appear to be a single, correct way to conduct a database search and analysis.  So corpus linguistics will engender litigation over methodology and dueling expert credentials.  This not only suggests that corpus linguistics cannot fulfill its promise of greater predictability and objectivity.  It also raises questions of judicial accountability.  Judges will be able to skirt responsibility for their interpretations of what is legal or illegal by reframing the question as a dispute over database searches rather than a decision about punishment.

Finally, I worry that corpus linguistics seems so attractive because modern legal thought has rejected the idea that statutory interpretation is anything other than a ministerial task.  Before the rise of textualism no one doubted that judges had a substantive role to play in statutory interpretation—especially the interpretation of criminal laws.  Indeed, the standard separation of powers story that is told about criminal prosecutions is that we have divided the punishment power between three branches in order to protect and maximize individual liberty.  A person will be punished only if the legislature decides to outlaw certain behavior, the executive decides to indict and prosecute a particular individual, and the judiciary agrees that the individual’s conduct falls within the clear legislative language.  When the Constitution was written, judges routinely acted as a normative gatekeeper for punishment, construing statutes narrowly to promote common law values even when the legislature seemed to prefer a broader interpretation.

Don’t get me wrong, I’m not saying that we ought to abandon textualism.  In the essay I offer some thoughts on how to improve statutory interpretation.   But I *am* saying that an interpretive methodology that assumes a judge’s professional judgment is an evil to be avoided in statutory interpretation has no place in the criminal law. Language can never be crystal clear. And I would prefer that the people entrusted with deciding the scope of that language saw their task for the important check on government power that it is, rather than as bean counting. 

If you have any thoughts on the essay, I welcome them, including off line.  My email is [email protected]

Posted by Carissa Byrne Hessick on September 6, 2017 at 09:45 AM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (24)

Thursday, July 20, 2017

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public.  It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day.  Not so anymore.  Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times.  And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements.  Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority.  When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion.  And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted.  Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements.  I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation.  I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule.  (I personally find those sorts of opinions a little tedious and somewhat presumptuous.)  But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty.  It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us.  Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite.  But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes.  The law professors that I admire the most are those who have changed their minds.  For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others.  Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement.   I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive.  It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post.  Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way.  A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions.  In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences.  This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable.  That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions. 

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.)  But we should assume that our colleagues are smart enough and honest enough to have done this themselves.  And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions.  I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

Posted by Carissa Byrne Hessick on July 20, 2017 at 09:12 AM in Blogging, Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink | Comments (2)

Monday, June 26, 2017

SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

Oddly, the fact check does not show that this factual claim by Alito is false.  Rather the article claims that it is misleading.  Specifically, the article states:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem, but it is an apples-to-oranges comparison.

As Ed Whelan notes in the National Review, the Washington Post article is quite strange because it refutes a factual claim that Alito didn’t make. The article notes that sex offenders are arrested at the lowest rate for the same crime as compared to people convicted of other crimes.  And it notes that of all previously incarcerated offenders arrested for sex crimes, only 13% were previous sex offenders. But these facts do not refute the narrow factual claims Alito makes in his concurrence.

The real problem that the Post has identified (though expressed poorly) is that Alito’s opinion could be read to endorse an oft-repeated claim that sex offenders pose a unique recidivism risk, making sex offender registries and a host of other post-conviction restrictions justified.  Indeed, in a 2002 opinion, the Supreme Court stated that “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” and referred to the recidivism rate of sex offenders as “frightening and high.”  The Washington Post takes pains to debunk this factual claim, even though it was not included in the Packingham opinion.

I partially share Ed Whelan’s criticism of the Washington Post fact check.  Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate.  And although the Washington Post tells us that there are other facts that appear better calculated to assessing how dangerous sex offenders are, that does not make Alito’s statement inaccurate.

Where Whelan and I part ways is that I nonetheless think this paragraph from Justice Alito’s opinion is misleading, if not false.  The problem with this paragraph is not, as the Washington Post claims, that it cherry picks particular statistics and leaves out other statistics.  It is instead the topic sentence of the paragraph.  The paragraph begins with the claim “Repeat sex offenders pose an especially grave risk to children.” But the facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.

The topic sentence is quite clear—it claims that repeat sex offenders pose a particularly serious risk to children.  But the only fact offered in support of this claim is that previously convicted sex offenders are more likely to be arrested for another sex offense than are individuals who had previously been convicted of a non-sex offense.  But how often prior sex offenders are arrested for subsequent sex offenses tells us next to nothing about the risk that repeat sex offenders pose to children. The data Alito cites on re-arrests tell us nothing about the age of the victims. Nor does information about re-arrests tell us how likely it is that a person who victimizes children was previously convicted of a sex crime. 

But there is data that Alito didn’t cite on both of these questions, and they do not support Justice Alito’s claim. When we look at recidivism data broken down by age of the victim, we do not see a large group of people repeatedly targeting children.  This federal study, for example, shows that although more than 50% of individuals convicted of a sex crime against children had a prior conviction, only 7.3% had a prior conviction for a sex offense against a child. (Look at Table 6.)   This is consistent with recent reporting from Joshua Vaughn of the Carlisle Sentinel.  He reports that in some Pennsylvania counties, 95-100% of all sex crime arrests are for people who are not on the registry, even though police devote as much as 60% of their resources to enforcing registry laws.  These figures flatly contradict Justice Alito’s claim that “Repeat sex offenders pose an especially grave risk to children.”  The serious risk to children appears to be coming from groups other than repeat sex offenders.

Of course, one could argue that Alito limited his claim of “grave risk” to repeat sex offenders.  If we read his claim excluding those previously convicted sex offenders who do not reoffend, then Justice Alito has limited his factual claim in a way that ensures it is accurate—those who have or will reoffend by definition pose a risk of reoffending.  But that seems like a bizarre way to read Justice Alito’s opinion.  The North Carolina law regulated the behavior of all previously convicted sex offenders, not simply those who have or will reoffend.  And if we were supposed to read Justice Alito’s opinion in this tautological way, then I would expect to see this mentioned in the portion of his opinion that discusses whether the law burdens substantially more speech than is necessary” to achieve the government interest.  But that section of his opinion is devoted entirely to the types of websites that the statute covers.

In sum, I think that it is fair to say that Justice Alito makes a misleading, if not false, factual claim in his Packingham concurrence.  But it is not the claim that the Washington Post identifies.

Posted by Carissa Byrne Hessick on June 26, 2017 at 10:10 AM in 2018 End of Term, Carissa Byrne Hessick | Permalink | Comments (6)

SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel

As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge.  Petitioner was a lawful permanent resident who had been indicted on drug charges.  His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time.  Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation.  Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.

The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance.  There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming.  If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.

In a 6-2 decision, the Supreme Court reversed.  In the majority opinion, Chief Justice Roberts explained that the prejudice here was the Petitioner’s forfeiture of the right to trial by pleading guilty. In his dissent, Justice Thomas (joined by Justice Alito) argued that prejudice requires not only a showing that the defendant would have proceeded to trial, but also that the defendant would have been better off going to trial.  Both the majority and the dissent supported their positions with language from the Court’s previous ineffective assistance cases, none of which clearly settled this issue. 

Although I don’t think that the Court’s previous opinions necessarily settled this question, I do think the majority was nonetheless correct.  First, there are good reasons not to make the prejudice standard any more difficult to satisfy than it already is.  As many others have noted, the prejudice prong of ineffective assistance of counsel is notoriously difficult to satisfy.  And there is a reasonable argument to be made that it unfairly limits Sixth Amendment rights to the innocent. 

Second, the dissent’s prejudice standard would have been impossible for most defendants to satisfy.  A defendant who is deciding whether to plead guilty often does so without access to information that may have helped her assess her likelihood of success at trial.  As a result, a defendant who seeks to challenge the effectiveness of plea bargain counsel is unlikely to have access to information that would indicate that she might have prevailed at trial.

Finally, and most importantly, the majority opinion (at least implicitly) acknowledges the importance of the right to a jury trial.  Our criminal justice system is essentially a system of pleas, rather than a system of trials.  Substantive criminal law and criminal procedure are currently designed to ensure that the vast majority of defendants accept a guilty plea rather than insist upon their right to trial.     Implicit in our system of pleas is the idea that ours has become an administrative criminal justice system, more concerned about processing large numbers of defendants rather than ensuring justice through adversarial testing.  I happen to believe that the process of trial has its own value, not only to defendants, but also to society as a whole.  In saying that the deprivation of the proceeding of a jury trial is itself prejudice, the majority lends some support to that view---a view that used to be considered a bedrock principle in this country.

Posted by Carissa Byrne Hessick on June 26, 2017 at 09:47 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Carissa Byrne Hessick, Culture, Law and Politics, Life of Law Schools | Permalink | Comments (12)

Thursday, June 08, 2017

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

It is well established that government actors can be convicted for inappropriately exercising their governmental powers.  Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.

Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo.  And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason.  But this argument goes too far. 

In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons.  That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin.  The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.

Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit.  But I’m not sure that’s a particularly good response.  For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes.  For another, obstruction of justice is one of many laws that place limits on what the President may or may not do.  Bribery is also a legislative limitation, rather than a constitutional limitation.  Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power.  But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.

In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited.  To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic).  Nor am I making a statutory claim about whether this President has obstructed justice.  I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.

Posted by Carissa Byrne Hessick on June 8, 2017 at 09:33 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (5)

Sunday, June 04, 2017

SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine

One of the decisions that I am eagerly awaiting is Sessions v. DimayaDimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions.  Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case, Johnson v. United States.  As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.

The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.

To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine.  But we have seen two opinions in as many years from the Court that have muddied the water even further.  The first of those decisions was JohnsonJohnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments.  Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why.  This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.

The second problematic vagueness decision came earlier this Term in Beckles v. United StatesBeckles involved a challenge to a federal sentencing guideline that included language that was identical to the language that was deemed unconstitutionally vague in Johnson.  But the Beckles Court held that the vagueness doctrine did not extend to the federal sentencing guidelines.  The Beckles decision could be criticized on a number of grounds (fodder, I suppose, for another post), but it also further muddied the water surrounding the vagueness doctrine.  One of the reasons that Beckles Court gave for not allowing vagueness challenges to the federal sentencing guideline was that advisory sentencing guidelines greatly resemble fully discretionary sentencing systems. Because no court has ever held that a system that gives judges no sentencing guidance is impermissibly vague, the Beckles Court concluded that a system that gives some guidance must be acceptable.

While a majority of Justices felt that the discretion given to judges was enough to dismiss the constitutional challenge, this reasoning raises more questions than it answers.  The similarity between advisory guidelines and unfettered sentencing discretion is not obviously a reason to dismiss vagueness challenges.  After all, the Supreme Court has repeatedly held that the danger of arbitrary and discriminatory enforcement created by “unfettered discretion” is the main reason why vague statutes are unconstitutional.  Thus, one would think that the more discretion is present, the more due process scrutiny ought to apply.

Perhaps Dimaya will bring some clarity to the vagueness doctrine.  Or perhaps the Court will dodge the vagueness issue by concluding that, because this challenge arose in the context of an immigration case, the vagueness doctrine does not apply with equal force.  I’m interested to find out.

Posted by Carissa Byrne Hessick on June 4, 2017 at 02:39 PM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions

The Supreme Court issued four opinions today.  One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question.  But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.

Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States.  Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator.  The law defines a minor as any person under 18.  Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16.  The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.

Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?”  Those are excellent questions.  And the answers are less than satisfying.  There is no section of the U.S. Code where you can find “generic federal definitions” of crimes.  Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions.  And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws.  Nor does Congress define the criminal conduct or elements that trigger the federal laws.  Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not.  And, as you might imagine, sorting these things out is far from easy.  It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.

If you take a step back and think about why Congress is writing such imprecise statutes, you’ll realize that it is because Congress is trying to expand the reach of its laws to capture information from state courts.  In recent decades, the federal criminal law has expanded.  The federal government has sought to regulate not only those people who commit federal crimes, but also those who are convicted of state crimes.  Federal law seeks to deport people who have committed state crimes, it prohibits people from possessing firearms based on state court convictions, and it uses those convictions to drastically increase punishment for people who are convicted of federal crimes.  As the federal government has increased its criminal law role, it has leaned heavily on state court convictions.  But states have written very different criminal laws.  These differences are traceable to the idea that each state faces different problems and has different priorities.  Congress’s decision to try to use those state laws as the scaffold for a nation-wide criminal law not only raises questions whether Congress is usurping the role of the states in shaping criminal law, but it also ignores the messy reality of state law differences.

These laws also highlight the limits of Congress’s power.  It is not easy for Congress to draft and enact legislation.  So it would be next to impossible for Congress to list all of the specific state statutes that it would want to trigger a federal law, and then to continuously pass legislation to update that list as states change their own laws.  But Congress’s decision to use imprecise phrases like “sexual abuse of a minor” raises its own problems.  Two Terms ago, in Johnson v. United States, the Supreme Court held that a portion of one of these federal laws was unconstitutionally vague.  A vagueness challenge to a similar law is pending before the Court right now in Sessions v. Dimaya

To be clear, the Supreme Court is not always hostile to federal laws that incorporate state court convictions.  And it often rules for the government in those cases even when a reasonable reading supports a defendant-petitioner.  But at least today we can add Esquivel-Quintana v. Sessions to the list of cases in which the courts have pushed back against these federal laws.

Posted by Carissa Byrne Hessick on May 30, 2017 at 11:57 AM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings.  The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term.  One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case.  Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials.  And a third said that he had been fired for refusing to bring obscenity charges against internet providers.  The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.” 

The panel was fascinating, but I had the same question then that I do now:  If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons.  How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason? 

Because I apparently do not lack self-confidence, I asked the panelists this question.  And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits.  At the time, I thought that this was a satisfying answer.  But now I am not so sure.

When it comes to police and prosecution, policy statements don’t seem to mean very much.  Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general.  And they invariably leave room for professional judgment.  In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances.  To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.

Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence.  Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play.  But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Carissa Byrne Hessick, Criminal Law, Law and Politics | Permalink | Comments (6)

Thursday, May 18, 2017

Joining the Prawfs Community

I am extremely excited to join the Prawfs perma-blogger roster.

I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship.  I did my first blogging here as a guest.  And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.

In short, PrawfsBlawg helped shape who I am today.  And I'm absolutely delighted to be a permanent part of the community.

Posted by Carissa Byrne Hessick on May 18, 2017 at 10:17 AM in Blogging, Carissa Byrne Hessick | Permalink | Comments (4)