Friday, November 08, 2019

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

First, the ineffective assistance of counsel (IAC) claim. To start, every military accused, indigent or not, gets a military defense counsel. Military defense counsel work for a stove-piped, independent defense organization, are licensed members of a state or federal bar, and are well-trained and supervised. I was a military defense counsel for four years, and I have full confidence that military defense counsel, even though they are often junior attorneys, provide extraordinary service to their clients.

An accused also has the right to hire a civilian defense counsel (CDC) at his own expense. Here, Lorance did that. Many people in the system do not trust the system, and if they or their families have money (usually a court-martial defense costs $10-20k), they often hire a CDC.

After the conviction, Lorance filed an IAC claim on appeal, asserting (among other things) that his CDC did not meet with him frequently and didn’t show up to Fort Bragg, NC, until the day before the court-martial. One thing that did not come out in the episode is that Lorance also had several military defense counsel working for him who were doing a ton of work.

When someone hires a CDC, the military counsel stay on the case but take on a second-chair role. Often, the CDC will do the opening statement and closing argument and will handle a lot of the guilt-phase witnesses. The military counsel will do the sentencing case (in the military, the sentencing case is as intensive as the merits case). Even with this division of labor, the military counsel meet frequently with the client and do a lot of the prep work for the guilt-phase witnesses. Lorance’s defense team divided up labor along those lines. Viewers should not come away with the impression that Lorance did not have an active defense team.

The producers interviewed Lorance’s defense counsel for this project (I am going to assume he got a waiver from his client—the Army has rules of professional conduct that are essentially the same as the ABA’s). His attorney said that he thought he made a mistake by not asking for instructions on lesser included offenses to specific intent murder, like manslaughter. However, under the facts of this case, that was not a mistake.

The military does not have degrees of murder. It just has murder, but six types: premediated, specific intent to kill, intent to inflict great bodily harm, wanton disregard (the same thing as abandoned and malignant heart or implied malice, akin to super-recklessness), and felony. Premediated and felony are capital-eligible. Lorance was charged with specific intent murder, and the facts are that he intended to kill the men on the motorcycle when he ordered a soldier to shoot at them.

Like most jurisdictions, murder can be mitigated to voluntary manslaughter if the killer acted under adequate provocation. The provocation must have been adequate to excite an uncontrollable passion in a reasonable person. Words alone are not enough. Here, the problem is that there was no provocation. The men on the motorcycle did not do anything to Lorance or his unit. Even if the CDC asked for this instruction, the military judge should not have read it—the defense did not raise sufficient evidence of that issue. Failing to ask for it was not a mistake.

The military also has involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). Neither of those mental states (examples of unintentional homicide caused by risk-taking or failing to recognize a risk) occurred here. It is uncontroverted that Lorance intended to kill those villagers. The military judge should not have read an instruction on these offenses, either.

The only thing the CDC could have hoped for was that the military judge would read one of these instructions and then possibly the panel would have compromised on something that is legally illogical—basically, hoping nullification would trump reason.  Failing to do something that relies only on jury nullification to work is not IAC.

I went through the trial transcript in preparation for my interviews, and I am confident that his CDC did a competent job. His cross-examinations of the witnesses were pretty good. Lorance just had bad facts.

Now to the conspiracy theories. The director exposes us to some of these, but my sense is that he does that to show their absurdity rather than to give them validity. Here are some of them: the CDC was in cahoots with the Army; the Army knew what the result was going to be all along; the Army was doing this to appease the Afghan government in partial response to another mass murder than was committed by an American soldier; and, senior officers were doing this to protect their careers.

Of these, only one holds any reflection of the truth. One of the reasons we prosecute soldiers who commit crimes within the host country is to show the people of that country that we hold our soldiers accountable. That is a legitimate reason (among other reasons) for prosecuting soldiers who commit crimes.

There were a couple of facts that need some explanation. First, the names of the dead men were initially written on the charge sheet, then prosecutors lined through those names and wrote in something like “adult male.” The conspiracy theory is that had to do with a cover-up or hiding the fact that they may have been enemy combatants. The better explanation is, things like that happen all the time in the military on charge sheets and it is allowed, provided the defense gets proper notice.

Proving the name of an Afghan is difficult. For most Afghans, there are no birth records or death records. But proving that two men died was easy: there were aerial photographs of their bodies. The names were not legally required to be on the charge sheet. By crossing through the names, the government did not have to try to prove the names. They just needed to prove two dead bodies, and they can point to the photos for that. 

The other fact is that one of the people on the motorcycle may have had some contact with the Taliban. The government did not disclose this to the defense ahead of trial. The conspiracy theory is basically the same: the government knew Lorance did the right thing but scapegoated him to appease the Afghan government.

The defense raised this on appeal as a Brady issue. Under Brady, the government must disclose evidence that is favorable to the defense. If they don’t, the error is tested for prejudice: if the evidence was material to the defense (essentially hyper-relative), then the error requires reversal.

Here, there was no error. The only way this information could be favorable is if Lorance knew about it before the shooting. If he knew that information, then it could factor into the self-defense reasoning. But he didn’t. It was irrelevant to his decision making. (The Army appellate court decided this issue the same way).

Further, even if the men on the motorcycle had been known Taliban, under the Rules of Engagement (ROE) Lorance was operating under, he would not have been able to shoot them on sight. He would still have had to have perceived a hostile act or imminent threat. (Under the laws of war, you can shoot the enemy on sight, even if they are not shooting at you. Those were not the ROE in effect in Afghanistan, though).

One side note. Viewers may have been surprised to see that Lorance was not in jail pending the trial or during the trial. He rode to the courthouse every day in a van with this family.

For the most part, service members do not go to jail before trial. There is no bail in the military. You either go into pretrial confinement, or you don’t. The unit commander makes that decision, but the rules are weighted heavily in favor of not putting soldiers into pretrial confinement.

To do so, there must be probable cause that the service member committed the offense (this is usually apparent). Next, confinement must be necessary because it is foreseeable that (1) the accused is a flight risk OR will engage in future serious criminal misconduct, AND (2) less severe forms of restraint are inadequate. Here, Lorance was not a flight risk and there is no indication that he would commit a violent crime or engage in obstruction of justice. Like many accused, he spent his time before trial doing productive work in his unit.

Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.

The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.

Here is the basic quandary. We want soldiers to follow orders immediately. If they don’t, they can be prosecuted for failing to follow an order. However, if they do follow the order, and it turns out that the underlying action is unlawful, they can be prosecuted for doing that unlawful action. When put in a sketchy circumstance, it looks like they are damned if they do, damned if they don’t. Should they risk being prosecuted for refusing the order, or risk being prosecuted for doing something that might be illegal?

In 1621, Gustavus Adolphus included a section in his Code that dealt with this problem. Article 46 says that no officers may order anyone to do anything unlawful. Article 45 tells soldiers to follow orders, but if an order is unlawful, to disobey the order and report the problem to higher.

Current American military law is not too far off from that. The law is weighted toward having the service member follow the order. Service members should infer that the order is lawful and they assume the risk of not following the order. They should only refuse patently illegal orders. Usually, this issue comes up when soldiers refuse to follow an order to deploy somewhere, arguing that the war is illegal. This issue is litigated before trial, where the military judge decides whether the order was lawful or not. If lawful, then the soldier has a tough case ahead (it is pretty clear that they did not follow an order). If the military judge says that the order was unlawful, then the government has failed to state an offense (it is not against the law to refuse to do something illegal).

If service members do follow the order, and it turns out that the underlying action was illegal, then they can raise the defense of following orders. Under that defense, they are excused unless they know or should have known that the order was illegal (which is the same thing as the order being patently illegal). Once raised, the government must disprove the defense beyond a reasonable doubt.

Returning to the Lorance facts, the soldiers who fired the harassing fire into the village followed an order, it turns out that underlying action was unlawful, and if they had been prosecuted, they could have raised a defense. They would likely lose on that defense, though, because everyone knows you can’t shoot harassing fire. The order was patently illegal.

The soldiers who refused to make false reports could have been prosecuted for that (that would be very unlikely). They would have argued before trial that the order was unlawful, and a military judge would certainly agree with that.

How about the soldiers who shot at the men on the motorcycle? Again, they followed orders. If they were prosecuted, they could raise the defense of following orders. I think they would win on that. They had no idea what Lorance might have known. Lorance could have received intelligence from higher that the men were about to threaten the unit, for example. Further, the soldier in the gun truck was separated from the rest of the unit. He didn’t know what Lorance might have seen that he did not. The government would have to prove beyond a reasonable doubt that they knew or should have known that the order was illegal, and I don’t think the government would be able to meet that burden.

These issues should come up in the next episode, but with more of a focus on the granting of immunity. The soldiers who fired the harassing shots needed immunity and maybe they would have the potential for bias. I don’t think anyone else needed immunity so I can’t see why they would be biased.

Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)

Thursday, October 31, 2019

Leavenworth, Ep. 2: Casualties, part 1.

The following is by Eric Carpenter (FIU), who is live-blogging the show

We get to the actual shooting in this episode. I think the facts in the case, as I have learned them, convincingly show that Lorance is guilty of specific intent murder. I was wondering how the director was going to portray the facts, and it appears the director thinks so, too. Again, this is basically a self-defense case. In this post, I’ll go over a few of those facts and discuss an issue with the investigation that came up in the show. In the next post, I’ll give a quick discussion on how military law deals with the problem of when a superior gives an illegal order to a subordinate.

The director left out a couple of facts and didn’t emphasize the significance of another event. To start, right when Lorance took over his platoon, he threatened a villager and his child. That farmer came up to the observation post and, understandably, asked Lorance if he would move a role of barbed wire that was making it difficult to work his field. Lorance’s response was to threaten the kill the man and his family.

The next day, Lorance ordered his men to shoot harassing fire at the village (think of a scene from a Western movie where an outlaw shoots within feet of someone to make that person dance). That was clearly illegal and beyond the bounds of the Rules of Engagement (ROE). Lorance did this to get the villagers to show up to a meeting later in the week where he would apparently start building a good relationship with them. Some villagers came up to the observation post the next day to complain about the harassing fire and then Lorance threated to kill them, too. The day after that was when the patrol killed the two villagers. All of that in three days.

The director does a pretty good job describing the actual shooting, and the facts show that the unit was not facing a hostile act or hostile intent from the men on the motorcycle. As the motorcycle was approaching at a moderate pace on a washed-out road, Lorance had a soldier shoot at it. The soldier missed (maybe intentionally). The motorcycle kept going down the road, and afterwards Lorance said that because it kept going, it showed a hostile intent. The problem with that is that after those rounds were fired, the villagers stopped, dismounted, and went over to talk to members of the Afghan National Army who were part of the patrol. They then went to wait by their motorcycle. That is when Lorance ordered the shooting.

Those Afghan soldiers knew that the villagers did not pose a threat. So did the members of the American platoon. A fact I did not know about before I watched this episode is that another sergeant in the platoon, the one responsible for the gun truck, had told his soldiers earlier not to fire unless he told them to because he was concerned about some things that Lorance had said. In the moments leading to the shooting, he and Lorance were arguing on the radio, with Lorance telling the soldiers in the gun truck to fire and the sergeant telling those soldiers not to. The soldiers in the gun truck followed Lorance’s order and opened up with a medium-weight machine gun, killing two of the villagers.

Add to that a bunch of evidence of consciousness of guilt and the case seems pretty tight. Lorance told a soldier who was specially trained on gathering intelligence from dead combatants not to do the assessment and instead had two untrained soldiers do it. When they did not find any evidence that the villagers were Taliban, Lorance ordered some soldiers to report to headquarters that the bodies were dragged away before they could be searched. Those soldiers refused that order so Lorance made the report false himself.

The facts were pretty bad for Lorance, and his defense team had to have been in a tough spot. We get a hint of the defense strategy at the end of the episode. After the shooting, the company commander called the platoon back to the company area, put the soldiers in a tent, and had them fill out sworn statements about what they had seen. (The statements were all consistent.) The defense counsel suggests that they spent their time getting their stories straight.

That process may seem a little odd. Usually law enforcement (and not a commander) would do the investigation from the start. In the military, though, commanders are supposed to do an initial investigation. Rule for Courts-Martial 303 says that when commanders receive a report of misconduct, the immediate commander shall conduct a preliminary inquiry. The discussion to the rule says that these investigations are often informal, but also says that in complex cases, the commander should seek the assistance of law enforcement.

Here, it looks like the commander wanted to quickly find out what happened, brought the soldiers in, and had them give statements. That is what the rule contemplates. The commander then brought in formal law enforcement once he had a sense that something bad really had happened. The facts suggest that the soldiers sat quietly filling out the statements and were not getting their stories straight.

This rule can cause problems. Commanders can sometimes get wind of misconduct (say, drug use), do a preliminary inquiry, and then mess up a larger, undercover investigation that law enforcement is conducting. Or commanders might interview potential suspects without giving proper rights warnings. Or, the initial witness statements might be sparse or off-point and those statements can later be used to impeach those witnesses. Of those, maybe the last one will be implicated in this case.

Here, the director implies that the defense will be saying that the platoon got together to tell a story so that they could get rid of this new platoon leader they did not like. And I think he will say, they did not like him because he was gay.

The first part of the episode discusses how Lorance came to terms with his sexual identity, and how his parents could not come to terms with it (adopting the, “Hate the sin, love the sinner” approach). We also learn that even though Don’t Ask, Don’t Tell had been formally appealed, Lorance tried to keep his identity secret. This appears to have caused some issues in his relationship with his partner. While Lorance was deployed, his partner went on a family support group Facebook page to post a message to Lorance. Lorance was able to keep the post from going live, but the page manager appears to have spread a rumor that he was gay. That rumor made it to the headquarters unit he was serving with; however, it does not appear to have reached the platoon. We may find out in the next episode if that rumor become relevant.

Posted by Howard Wasserman on October 31, 2019 at 05:54 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Saturday, October 26, 2019

Leavenworth, Ep. 1: Soldiers.

This post is by my FIU colleague Eric Carpenter, a retired Ranger and JAG attorney. He is covering the HBO documentary for us. Episode 1 aired last Sunday; Episode 2 premieres tomorrow.

If Clint Lorance had not deployed to Afghanistan, he would have never committed a crime like murder. By all accounts, he was a productive member of society and joined the military for honorable purposes. In Episode 1 of Leavenworth, the director appears to start his argument for why a law-abiding, disciplined soldier would commit a crime like this. His basic thesis will be, I think, that Lorance was overcompensating for several factors and felt he had to quickly establish himself as a tough leader who would impose his will on the enemy. Ignoring the rules of engagement (or creating his own) fit that image.

One of these factors is that Lorance was tasked mid-tour, on short notice, to replace the battle-seasoned platoon leader of a battle-seasoned platoon. The original platoon leader—the one who led the unit through the preparations for combat and the initial part of the deployment—was wounded in an improvised explosive device (IED) explosion. This platoon leader appears to have been well-respected by his soldiers and was Ranger-qualified.  

The platoon was battle-seasoned, too. The platoon had already been in firefights and, presumably, had already been awarded the coveted Combat Infantryman Badge (CIB). Two other members of the platoon were also seriously wounded in combat. And the director brings in a social psychologist to explain how people bond in situations like these.

Replacing that platoon leader in that platoon would be a tough leadership task for anyone to undertake. Lorance had some strikes against him.

To start, he did not graduate from Ranger School. In the Army, having bells and whistles on your uniform matters. Lorance walked into the unit without a Ranger Tab and without a CIB.

After new lieutenants graduate from Infantry Basic Officer Leadership Course, they go to Ranger School. If they graduate from Ranger School, they can expect to be a platoon leader in a light infantry unit. If they do not, they often go to a mechanized infantry unit, or go to a light infantry unit but serve in a headquarters element. Lorance did not graduate from Ranger School and so was serving in a headquarters unit. When I deployed, I was a judge advocate and served in a headquarters unit. An anacronym exists for people in headquarters elements: REMF. Rear-echelon . . . 

So not only did Lorance show up without the right bells and whistles, he had been, up to that point, a REMF. He may have thought that he had something to prove.

Plus another factor. I have been following this case for a while, and I did not know about it.

Lorance is gay. He grew up within a conservative family, as a Pentecostalist, in Hobart, Oklahoma, itself a very conservative area. The director leads us to believe that his family was not accepting of his sexual orientation. As I think through how that fact might be relevant to the story, I expect the director will argue that he felt he had to overcompensate within what many would consider to be a hyper-masculine society.

Congress repealed Don’t Ask, Don’t Tell (DADT) on September 20, 2011. The repeal was supported by a large number of senior military leaders. I was a student at the Command and General Staff College in the period leading up to the repeal. We routinely heard from senior leaders in government as they talked about complex problems. One of the best comments I heard was from Admiral Mike Mullen, then the Chairman of the Joint Chiefs of Staff. He said that his turning point was when he recognized that the policy ran contrary to one of the military’s key values: integrity. His point was, “How can we say that we value integrity, and then turn around and tell a service member that they have to lie about who they are?”

Those who opposed the repeal warned of dire consequences (primarily, that unit cohesion will fall apart), but in the part of the Army where I served, none of the dire consequences came about. From the perspective of many straight service members, nothing really changed. (I was against the policy and glad for the symbolic meaning of repeal.) There were LGBTQ service members in the military during DADT, everyone knew it, and most people did not care. People cared about whether you were good at your job.

I recognize that those in the LGBTQ community must have had a completely different experience under DADT, and even if 95 out of 100 service people treated them with dignity and respect (I am making that number up), they would still have to constantly deal with the 5 out of 100 who didn’t.

Lorance took over his platoon in 2012. DADT was only a year in the grave, and I don’t know what the experience during this period was like for members of the LGBTQ community. Further, I don’t know what the culture was like in infantry units at the time. I expect the director will fill us in.

Posted by Howard Wasserman on October 26, 2019 at 04:40 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Wednesday, October 23, 2019

Leavenworth: Prologue

The following is by my FIU colleague Eric Carpenter. It is the first in a series of regular posts blogging the new Starz documentary "Leavenworth." Eric teaches Crim, Evidence, and Military Justice at FIU and served in Army JAG before coming to law teaching. He covered the second season (Bergdahl) of "Serial."

Thank you, Howard, for the opportunity to provide some running commentary on another true-crime docuseries that covers a military justice case. Leavenworth follows the story of Lieutenant Clint Lorance, an American infantry platoon leader who ordered his soldiers to open fire on three Aghans who were riding a motorcycle, resulting in two deaths. In this blog series, I hope to explain some of the peculiarities of the military justice system that will pop up. As I expect the director will offer criticisms of the system, I will give my thoughts on those, too.

I also hope to discuss some of the bigger themes that this case raises. First, this case is nested among several others where service members allegedly committed or did commit crimes against host-nation nationals (Navy SEAL Special Operations Chief Edward Gallagher, Major Matthew Golsteyn, for example) and then had their causes championed by Sean Hannity and others. Trump had considered stopping the prosecutions or granting pardons last Memorial Day but changed his mind after facing significant criticism.  One of my questions is, what explains that support?

Are we placing service members in complex situations where the enemy looks like the local population and does not play by the rules, and then forcing our troops to choose being buried by six or tried by twelve? If so, that might explain it. It is just not fair to prosecute them. Or are servicemembers well-trained on the rules and counter-insurgency operations, and Lorance (and the others) just ignored the rules? If the second is true, why are some still championing their cause?

A related theme is that there is nothing new under the sun. The problem of using force in counter-insurgency warfare is not new. I start my military justice class by playing the movie Breaker Morant, a true story from the Second Boar War in South Africa in 1902 (available for free in Kanopy and well-worth the watch). The basic issues in Lorance are the same as those faced by those British and Australian soldiers. U.S. service members dealt with these problems in Vietnam. While the Lorance shooting cannot be equated to the My Lai massacre (where several hundred civilians were killed), the facts leading into both are similar. Nothing is new. We just forget.

Several years into the war in Iraq, the American military finally recognized that it was fighting a counter-insurgency. David Petraeus (featured in Leavenworth) then wrote a manual on counter-insurgency operations that rejected the colonial “use force to get them to do what we want” approach and instead recognized that we need to provide the local population with security from insurgents. He put that doctrine into action while commanding forces in Iraq and Afghanistan. But adopting that strategy involves having soldiers assume risk that they did not have to before. And that is the world that Lorance worked within. Perhaps his champions’ real issue is with that assumption of risk and the rejection of the colonial approach.

The main legal issue will feel familiar: did Lorance act in self-defense of his unit? While he was deployed to Afghanistan, the rules of engagement were basically the same as the elements of common law self-defense. These rules are unclassified. The force has to be necessary: if unit commanders are on the receiving end of a hostile act, they can fight back; if they are moments away from facing a hostile act (they see a hostile intent), they can engage before the other side has a chance to act on that intent. The force used must be proportional, and if unit commanders can de-escalate the situation without using force, they should.

There are some interesting side issues. Lorance didn’t pull the trigger. Someone else did. If that soldier—the one who pulled the trigger—were put on trial, would he have a defense of obedience to orders? If he refused the order, could he be tried for failing to obey an order? I use the Lorance appellate case when teaching that defense and that crime to my military justice students. I hope to unpack those along the way. It turns out that some soldiers refused his orders to commit crimes and others did not. (Most were granted immunity to testify.)

Last, and in keeping with Prawfs origin story, I hope to share some lessons I learned while participating in this project. I gave a four-hour interview and the producer filmed my criminal law class and evidence class as they discussed issues in the case. I have no idea how the director put these scenes together, though. We’ll learn together.

Posted by Howard Wasserman on October 23, 2019 at 09:31 AM in Criminal Law, Law and Politics | Permalink | Comments (1)

Friday, October 18, 2019

"Leavenworth" on Starz

This Sunday, Starz airs the first episode of the 5-hour documentary series Leavenworth, directed by Steven Soderburgh and telling the story of Lt. Clint Lorance. Episodes 3 and 5 feature FIU and my colleague Eric Carpenter (a former JAG officer); Eric is interviewed and the program includes footage of students mooting the case in his Military Justice class.

Posted by Howard Wasserman on October 18, 2019 at 12:31 PM in Criminal Law, Howard Wasserman, Television | Permalink | Comments (0)

Tuesday, April 30, 2019

Declination Decisions and Privacy

In response to my post from yesterday about the Special Counsel’s decision not to prosecute Don Jr. a few people have remarked that the need to protect individual privacy counsels against publicizing nonprosecution decisions. If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

This argument has been around for quite some time.  Courts have used a variation on this argument to state that prosecutors may not identify unindicted coconspirators by name in indictments.  And it was famously part of the reason that Rod Rosenstein offered in his infamous letter suggesting that James Comey ought to be fired as Director of the FBI. 

I want to take the argument seriously, but I have some reservations about the argument, not only in this particular case, but also more generally.  First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute.  I find it difficult to see how the redaction of the analysis, but not the facts, protects Don Jr.’s privacy.  I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media.  I don’t really have a rebuttal to counterargument (a).  But I’m not thoroughly persuaded by (b).  If nothing else, the harm to Don Jr. at that point seems to be one of reputation, not privacy.  Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms.  For example, in the Special Counsel’s report, Don Jr.’s name and identifying information could have been redacted, but the substantive analysis on which the declination decision was based could have been left in.  That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.”

Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions.  I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law.  It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds.  This ignorance is understandable because even those of us who know that nonprosecution is common have a hard time obtaining information about how frequently it occurs and under what circumstances.  Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

But even assuming everyone knew about nonprosecution as a policy, how much could we learn from reading DOJ public policies? In my opinion, not very much.  Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report:

In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

    1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
    2. The nature and seriousness of the offense;
    3. The deterrent effect of prosecution;
    4. The person's culpability in connection with the offense;
    5. The person's history with respect to criminal activity;
    6. The person's willingness to cooperate in the investigation or prosecution of others;
    7. The person’s personal circumstances;
    8. The interests of any victims; and
    9. The probable sentence or other consequences if the person is convicted.

I don’t know about you, but I don’t think that this list allows me to make any educated predictions about when prosecutors will pursue charges and when they will not.  For example, the list does not include the aggravating factors that James Comey identified as necessary in order for DOJ to bring charges for mishandling classified information.  Nor am I able to determine based on this list whether the decision not to charge Don Jr. was made because of some unique facts in his case or because DOJ, as a general matter, does not bring CFAA charges for unauthorized password sharing unless there are other aggravating circumstances present.  (There is commentary to this policy, but it also does not provide that sort of substantive information.)

Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them.  But as a member of the public, I don’t think that these policies give us enough information about how prosecutors choose to enforce overly broad laws.  In my opinion, that is a serious problem because it means that the public doesn’t have sufficient notice about what will be treated as illegal.  It can also allow for arbitrary and discriminatory enforcement.  And it doesn’t allow the public to serve as a democratic check on prosecutorial decisionmaking.  (I discuss the problem in some detail in Part III of this forthcoming article.)

The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President.  After all, criminal justice issues likely play a very small role in who people vote for in presidential elections.  But the vast majority of state prosecutors are elected.  How elected prosecutors choose to exercise their discretion—including when they decide not to prosecute--is probably the most important information that voters need (and almost never get).

Anyway, these are just some preliminary thoughts.  I definitely need to reflect further on how to balance these concerns that I’ve identified against the need to protect individual privacy and reputations.  Nonprosecution decisions raise complicated questions, which a number of law profs address in various very thoughtful articles.

As for the topic of democratic accountability and prosecutors, that’s an area where I hope to spend more time and effort

Posted by Carissa Byrne Hessick on April 30, 2019 at 10:37 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (1)

Monday, April 29, 2019

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

Posted by Carissa Byrne Hessick on April 29, 2019 at 08:10 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (6)

Tuesday, April 02, 2019

CrimFest! 2019 at Brooklyn Law -- Registration still open!

As many of you know, Dan Markel did an amazing job creating a community for law professors.  One of the many things that he did to create that community was to start CrimFest!  CrimFest is an informal, annual conference where those of us who study criminal law, criminal procedure, and related criminal justice topics meet to workshop papers.  

Even though Danny is gone, CrimFest continues.  This year’s conference will be held at Brooklyn Law School in New York.  The conference will open with an informal dinner on the evening of Sunday, July 14.  Then we will have two full days of panels on Monday July 15 and Tuesday July 16.  Attendees are responsible for their own travel and hotel expenses. The conference will provide breakfast and lunch, and will subsidize a happy hour on Monday evening.  The registration fee will be $65.00.

If you would like attend, please add your information to this spreadsheet:  https://docs.google.com/spreadsheets/d/1DbYmO7GXCZZF7ABzZx7LcuB7MDUU7QgemvrxDihy-rA/edit?usp=sharing

As you will see, this is an open access document.  So please be very careful when adding your own information not to delete or otherwise alter any information that has been added by others.

Registration will remain open until May 31.  So you need not complete all registration information at this time, including whether you intend to workshop a paper, or the topic of the paper you intend to workshop.  But please be advised that, as in years past, we are limiting presentations to true works in progress.  You are welcome to present as little as a 3-page sketch of a project idea, a fully written draft, or anything in between.  But papers that have already been submitted for publication are not eligible.

Finally, CrimFest is intended to be a very inclusive conference:  It is not limited to those who have tenure or tenure-track positions.  In fact, we usually have a good crowd of fellows and VAPs who are planning to go on the market.  So please feel free to share this email with your colleagues.  Anyone who has the link to the spreadsheet can register!

I look forward to seeing many of you in Brooklyn this summer!

Posted by Carissa Byrne Hessick on April 2, 2019 at 03:22 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Monday, March 18, 2019

Transparency as a Sword

As a general matter, I support transparency in the criminal justice system.  It is difficult to obtain reliable data about crime and criminal prosecutions --- especially data from state and local systems.  Because we elect many state and local criminal justice officials, this lack of data and transparency is troubling.  If the public is unable to discover what criminal justice actors are doing, then they will find it difficult to hold those actors accountable.

And so, I was surprised to hear a number of people here in the state of North Carolina complaining about a state law that requires the gathering and dissemination of criminal justice data.  The law requires the collection and reporting of information about when judges waive the collection of court fees in criminal cases.  Here’s the full text of the relevant statute:

The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.

The people who are complaining about this law argue that it creates pressure for North Carolina judges not to grant waivers to criminal defendants.  To be clear, the legislature can’t prohibit judges from granting all waivers---if defendants are indigent, then the Constitution forbids the state from imposing these court fees. 

Since I learned about this law, I’ve been wondering:  Is there a way to square my desire for more readily available criminal justice data with the idea that these reports are a bad idea?  After all, for those of us who wish to study the criminal justice system, more data is better than less data.  And if voters need transparency in order to hold their official accountable, then shouldn’t they have this information about their judges?  After all, judges are elected here in North Carolina.

After some reflection, I think that this sort of information could be very valuable.  But it would depend on the nature of the information that was gathered and how much of that information was disseminated.

For example, I could imagine a world in which the Administrative Office of the Courts were asked to gather information that would allow us to put these waiver decisions in context.  For example, the office could also collect information about the annual income or net worth of every defendant.  And then it could present the waiver information in the context of the assets that defendants have or the salaries that they earn.  That information might allow us to assess whether judges are granting waivers only to those defendants who are actually indigent.  If the report tells me that the judges in my county are only granting waivers to people with incomes below $25,000, then I can feel pretty comfortable that waivers are being granted properly.

But the current reports do not provide any relevant context.  Instead, the report consists only of the number of cases in which these fees were waived and those in which they were not waived.* Those numbers are presented both by county and by individual judge, just as the statute requires.  (You can see a copy of the report here.)  So if a judge gives a waiver to a person who has no assets and an annual income of $0, that waiver will be recorded (and reported) no differently than a waiver for a person making $40,000 per year.

It is hard to see the value of a report in which the number of waivers and the proportion of waivers are the only information being provided.  Why should I care about the number of waivers being granted without any further context about the waiver?  That number, without context, is relevant only if people think that waivers ought to generally be granted or generally be refused.  And because I doubt that many voters think that waivers should generally be granted, the reports seem to be a way to try and pressure judges to keep the number of waivers that they grant as low as possible. **

In other words, it seems as though transparency here is being used as a sword against judges.  And the result may well be judges failing to grant waivers to defendants whom they might otherwise consider to be indigent.

 

* There are a few additional columns with information about partial waivers, civil judgments, and other similar data.

** As others have noted, the North Carolina legislature seems to be trying pretty hard to make it difficult for judges to grant waivers, even to those who are truly indigent.

Posted by Carissa Byrne Hessick on March 18, 2019 at 06:43 AM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (5)

Friday, March 01, 2019

Michael Cohen and Prosecutorial Overreach

As the House Oversight Committee hearing this week reminded us, Donald Trump has given special counsel Robert Mueller and the Department of Justice plenty of reason to investigate him and his aides for misconduct. The Trump campaign’s ties with Russia may have compromised the integrity of our elections. Trump’s business dealings in Russia may have led him to sacrifice U.S. foreign policy interests in favor of his personal financial interests. And Trump’s efforts to hide all of this may constitute obstruction of justice.

But while we should welcome efforts to hold the President accountable for his misdeeds, we should reject the prosecutorial overreach that has occurred in the plea agreement with Michael Cohen. It was wrong for federal prosecutors to use campaign finance law to bring charges over the “hush money” payments to Stormy Daniels and Karen McDougal. And it would be wrong to go after the President because of the payments.

The prosecutors’ campaign finance allegations are dubious. Indeed, similar charges were unsuccessful when filed against John Edwards after his failed bid for the presidency in 2008.

Under the prosecutors’ theory of the case, Trump should have made the payments directly to Daniels and McDougal and disclosed the payments on his campaign finance reports. That would have been legal.

But if Trump had taken that path, it would have become clear very quickly that he paid the two women not to reveal his affairs with them. Trump needed to funnel his payments through Cohen to keep his intimate relationships private. So while the charges against Cohen alleged violations of campaign contribution limits, the charges ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.

Prosecutors should not interpret election law in a way that requires candidates to open for public scrutiny their consensual, intimate relationships. Candidates lose much of their privacy when they run for office. Their financial status and their health status are fair game. But hiding Trump’s affairs did not deny voters any information that was a legitimate matter of public concern during the 2016 presidential campaign. Neither Daniels nor McDougal has alleged sexual harassment, sexual assault, or other abuse by Trump. This was not a #MeToo moment. Voters do not have a meaningful interest in knowing about a candidate’s consensual, intimate relationships.

Some observers have argued that we were entitled to know whether Trump cheated on his spouses because it spoke to his fitness to serve. But there is no good evidence connecting marital infidelity with quality of service. Jimmy Carter was faithful, JFK was not.

In any event, we do not have to worry that the public was misinformed about Trump regarding his sex life. Anyone who cared about his marital infidelity already knew he cheated on his spouses. They also already knew he engaged in much worse sexual conduct—the sexual assaults that he described in the Access Hollywood tapes. Voters who cared about marital fidelity knew what they were getting in Trump, and they either voted against him for that and other reasons, or they voted for him because they felt the advantages of a Trump presidency outweighed his personal failings.

There are serious downsides to prosecuting candidates who try to hide information about consensual, intimate relationships. When the government starts policing the bedroom, it does more harm than good. Suppose a candidate for office is running in a community unfriendly to the LGTBQ community, and the candidate is secretly gay. A former lover threatens to disclose their relationship, and the candidate pays hush money. Is it a good idea to bring criminal charges against the candidate for violating campaign finance laws?

These kinds of charges may discourage many desirable candidates from running. It is already true that many worthy candidates do not run for office because of the intrusive scrutiny on their personal lives. Potential candidates with an adulterous affair in the past may decide against a campaign to spare their spouses and children of the publicity that will ensue.

We should know lots more information about President Trump’s relationships with Russia and how their ties may have influenced our elections and our foreign policies. But we should not turn consensual intimate relationships into criminal violations.

Posted by David Orentlicher on March 1, 2019 at 11:12 AM in Criminal Law, Law and Politics | Permalink | Comments (20)

Wednesday, February 27, 2019

A question for crim pro types

A federal court ruled last week that federal prosecutors (namely, then S.D. Fla. US attorney, now-Secretary of Labor Alex Acosta) violated the Crime Victims Rights Act in entering a plea agreement and non-prosecution agreement with Jeffrey Epstein over sex-trafficking and related charges. The victims want the court to invalidate the plea agreement and NPA.

My question for learned crim pro type: How is such a remedy possible? The US Attorney agreed to the NPA in exchange for Epstein pleading to, and serving time on, the state charges.* Epstein now has served that sentence (although he remains under its collateral consequences, such as being a registered sex offender).

[*] At his confirmation hearing, Acosta defended the deal by arguing that it is a good result when the agreement to drop the difficult federal charges could produce some jail time.

Wouldn't invalidating the federal plea agreement implicate his state conviction and sentence? And would that create some Double Jeopardy or Due Process problems? Obviously there is no true Double Jeopardy problem if the federal government now prosecutes him regardless of what happened in state court. But does it change when the federal and state charges were enmeshed and agreements as to one implicated agreements as to the other?

Posted by Howard Wasserman on February 27, 2019 at 08:54 AM in Criminal Law, Howard Wasserman | Permalink | Comments (10)

Tuesday, February 26, 2019

Fast food justice

One of my professional regrets is that I was unable to place this piece in any law review, although it remains my most-downloaded piece on SSRN. It was too early in the days of online supplements, I was entering only my third year, and I could not find any place for it.

This case would make a wonderful addition to the sequel (H/T: Peter Oh of Pitt): A Connecticut man is challenging a $ 300 traffic ticket for distracted driving by arguing that what the officer believed was his cellphone was a McDonald's hash brown that he was eating for breakfast while driving.* He was convicted by a magistrate, appealed to a trial judge, and is awaiting ruling.

[*] Query how eating while driving does not distract a driver.

Posted by Howard Wasserman on February 26, 2019 at 05:20 PM in Criminal Law, Food and Drink, Howard Wasserman | Permalink | Comments (1)

Monday, January 28, 2019

"Two Weeks In": thoughts for first-year students

For about 15 (!) years now, I've imposed on the students in my first-year classes (Constitutional Law and Criminal Law) a version of the meandering and sprawling e-mail that's pasted below the jump.  It's meant to be an evolving reflection on legal education and formation, and the legal enterprise more generally, for (again) people who are still pretty near the starting gate.  I'd welcome (off-line or in the comments) any thoughts or suggestions for improvement!

Dear all,

We're two weeks into the new semester.  For what they're worth, here are a few reflections of mine, both about these first two weeks and about what's ahead.  You've probably heard a lot of this, from me or from others, before. Usually, I impose these thoughts -- which change every year! -- on first-semester students and, obviously, you all are more experienced than that.  Still, I thought it might be helpful to you to have a sense of how (for what it's worth) I think about what we're doing.

My view, as you've probably guessed, is that legal education is not primarily about memorizing rules, and “being a lawyer” involves more than being paid to apply clear “black letter” doctrines to clear facts.  As I see it, there is not always a clear “right answer”:  Life in the law is far more complicated -- and far more interesting -- than this, in several ways.

As I've mentioned a few times in class, we lawyers are, in many ways, story-tellers.  We investigate the facts, select our witnesses, find our evidence, ask our questions, and make our arguments.  We are, of course, both honest and creative. We try to convince the courts, and our opponents, about “the law” that applies to the case – i.e., the rules by which our “story” will be judged. We make arguments.  We draw analogies to some cases and we distinguish others.  After all, it is not always clear what the law is or what the law means.  And, we try convince our audience that “the law”, applied to “the facts”, yields the result for which we are advocating.  And, of course, we do all this mindful of the fact that we have an obligation to the truth. 

None of these three aspects of the drama of practicing law has anything to do with memorizing “black letter” rules or case-names.

You are all students at a good law school.  What does that mean?  Some think that law students are, essentially, consumers, and that “the law” is a neatly packaged product that law schools and teachers hand over, in small chunks, in exchange for huge tuition payments.  Some think that law school is a three-year bar review course, the purpose of which consists entirely in preparing one to take and pass the dreaded bar exam.   Still others might think that law-school classes can be neatly divided into “law,” which one needs to know, and “policy” and “theory,” which the professors care about but is really irrelevant.

As you might imagine, I believe these views are mistaken.  The truth is, we don’t really have a “product” for you to consume.  Instead, what we've been doing this year is inviting you into a profession and into a way of thinking about the problem of ordering the life of the community (which is the problem that law is supposed to solve).  And the study and teaching of law does not consist of me handing over, and you memorizing, briefly retaining, and then regurgitating on an exam, a set of rules called “the law.”  Legal education – if done right – is not about memorizing facts, data, and rules; it is not only about “technique.”  It is about learning to think, write, and reason – critically, carefully, and creatively.

In my view, if we are doing our jobs right, my colleagues and I are teaching and encouraging you to write clearly and persuasively; to craft sound arguments by drawing analogies and making distinctions; to abstract general principles from specific situations, to analyze complicated scenarios, and to apply the appropriate principles to the given facts and circumstances; to appreciate, when presented with a problem, which facts matter, and which facts do not; to recognize the moral dilemmas that so often arise in law (and in life), to have the strength of character to do the right thing, and to encourage others to do likewise; to think critically about legal rules and practices, and to evaluate them in light of the transcendent demands of justice and human dignity; to communicate to others, to your friends and families, to your clients, and to your communities the value and importance of the rule of law (in other words, part of what you are learning here is how to be a law teacher); and, perhaps most important, we want to encourage you to regard “being a lawyer” as “more than a job,” but a vocation.

Well, now you might be thinking, “this sounds fine, but is it practical?”  For starters, in law, theory and practice are always connected, and cannot be separated.  The practice of law is the application of theory and principles.  For example, the various “punishment theory” readings might seem abstract and theoretical; in fact, they explore ideas and arguments that play an essential role in shaping the “black letter” law.  In addition – I cannot emphasize this enough – you’ll find that when you practice law, your stock in trade will not be your memorized storehouse of legal formulas.  You’ll forget most of them pretty quickly after you graduate, if not before.

 Our stock in trade as lawyers is judgment, persuasiveness, reason, and wit.  No one is ever going to come to your office and say, “Mr. Smith, can you tell me the Rule Against Perpetuities?”  Instead, they are going to come to you with complicated problems and they will want your counsel and advice.  The solutions to these problems will rarely be clear; in fact, the problems themselves will rarely be clear.  This is why law is fun.  It is fun, challenging, and creative to identify and solve problems.  That’s what we do.

I think that an important aspect of legal education is learning to deal with uncertainty.  It's learning to deal with the fact that, sometimes, my colleagues and I won’t give you “the answer” to your question and will instead work through the competing arguments with you.   This under-determinacy can be frustrating.  But, there’s no escaping it.  If we make the law and its applications “black and white”, then we are lying to you.  To be clear:  I’m not saying that “there is no truth” or that “right and wrong are all subjective and relative.”  I’m simply saying that, in the law, there are often good arguments on both sides of a question.

I think that all this is true not only for Criminal Law, but also for your other courses, last semester and now.  In a way, the label on the book or the title of the class doesn’t matter all that much.  In all of these classes, you are learning pretty much the same thing:  How to think and write like a lawyer.  Think of it this way:  Every law-school subject has three “levels.”:  The subject’s particular rules and doctrines; the history and public-policy justifications for those rules and doctrines; and the meaning of life.  To be a good lawyer -- to deserve the name -- you have to think about law on all three levels.  In my view, no lawyer worthy of the name can be ignorant about where the principles she applies come from, or indifferent about whether they can be justified.

Finally, a favor to ask:  please do your best during your time here to build an intellectual culture here that is consistent with all this.  Allow yourself, and encourage each other, to be intrigued by and curious about the law.  Care and argue about the law.  Not every law student thinks this way, but a Notre Dame lawyer should.

Sincerely,

RG

Posted by Rick Garnett on January 28, 2019 at 09:29 AM in Criminal Law, Life of Law Schools, Rick Garnett | Permalink | Comments (3)

Tuesday, January 22, 2019

District Attorney Elections in 2019

Most district attorneys are elected in either a presidential election year or a congressional election year.  But some states hold elections for DA in off-cycle years.  By my count, there are 183 local prosecutors up for election in 2019.  

The jurisdictions whose prosecutors who are up for election are included after the break:

DA elections 2019

Posted by Carissa Byrne Hessick on January 22, 2019 at 02:32 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)

Monday, January 14, 2019

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Armstrong cites United States v. Chemical Foundation, a 1926 Supreme Court case, as support for the presumption of regularity.  But that case doesn’t seem to provide a particularly sound foundation for the presumption—at least not for the presumption as it is currently invoked by the Court.

In Chemical Foundation, the United States sued to invalidate the sale of foreign patents to Chemical Foundation.  The government had seized the patents pursuant to the Trading with the Enemy Act of 1917, and the President had delegated the power to sell the patents to Frank Polk, who was a counselor for the Department of State.  Polk then ordered the sale of various patents to the Chemical Foundation.  The United States subsequently sought to invalidate the sale, alleging that Polk’s decision to sell was “induced by misrepresentation and [was] made without knowledge of the material facts.”  The government lost at trial, with the lower court finding that the U.S. had “failed to establish any conspiracy, fraud or deception alleged.”  The Supreme Court declined to disturb the factual findings of the lower court, because they were not clearly erroneous.

I assume the Supreme Court could have disposed of Chemical Foundation on this limited ground—namely, that the government had failed to meet its factual burden.  But the Supreme Court went on to state:

The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the courts.

The Chemical Foundation Court cited three other cases in support of the presumption.  None of those cases referenced a presumption of regularity.  Nor do any of those cases reveal where the Chemical Foundation Court located authority for the presumption or what it thought the contours of that presumption to be.  And, most important, none supports the presumption as it was expressed and applied in Armstrong.

The first of these cases, The Confiscation Cases, involved a seizure that the President was authorized by Congress to make, but was actually made by a marshal acting on directions by the district attorney, who was in turn acting at the request of the Attorney General.  The cited portion of the opinion states that, because the statute authorized only the President to make the seizure, “a direction given by the Attorney-General to seize property liable to confiscation under the act of Congress must be regarded as a direction given by the President.”  The Court suggested that this holding was related to a previous decision that “the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.”  It is possible that the Chemical Foundation Court relied on The Confiscation Cases for the proposition that the Attorney General is presumed to act at the request of the President.  But the Chemical Foundation Court did not provide this (or any other) explanation.

The second case cited by Chemical Foundation is United States v. Page. That case involved a requirement that the result of all court-martial proceedings were to be signed by the President.  In Page, that requirement had not been technically satisfied.  The Secretary of War testified that he had forwarded the proceedings to the President, but the Secretary, rather than the President, had signed the copy of the proceedings. Nevertheless, the Court refused to dismiss the court-martial charge.  It stated that “where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that, if the Secretary of War said he forwarded something to the President for approval, that statement ought to be presumed correct.  But that is hardly the only possible way to read this case.

The final case, United States v. Nix, involved a dispute over the travel fees of a marshal to serve arrest warrants.  The marshal claimed travel not only for miles that he traveled, but also for miles traveled by his deputies.  The deputies were not available for testimony or depositions to verify the miles they traveled.  But the marshal was able to show that “his accounts” of the miles traveled by his deputies “had been allowed by the district judge.”  The Court deemed this decision by the district judge “prima facie evidence of the correctness of the items of that account” that “was sufficient to place upon the government the burden of showing any error of fact in his account.”  It is possible that the Chemical Foundation Court relied on this case for the proposition that the official accounting of the marshal ought to be presumed correct.  But it is difficult to tell what, precisely, was entitled to the presumption—the representation of the marshal, or the fact that the lower court found the representation credible.  In short, this line of precedent hardly provides a solid foundation for the presumption.

Although Armstrong was a criminal case, the presumption is not limited to criminal prosecutors.  Many Supreme Court cases discussing the presumption are unrelated to the criminal justice system.  For example, in National Archives and Records Administartion v. Favish, the Court referenced the presumption in creating a higher threshold showing for disclosure in certain FOIA cases.  The Court stated: “[T]here is a presumption of legitimacy accorded to the Government’s official conduct. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it.”

But, as with the cases applying the presumption to decisions by prosecutors, these other cases tend to make only brief reference to the presumption, sometimes including little more than citations to previous cases, which themselves made only brief reference to the presumption.  Indeed, a case that has long been associated with the presumption of regularity afforded to administrative agencies—Citizens to Preserve Overton Park v. Volpe—states only: “Certainly, the Secretary’s decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review.”

Although the Supreme Court has not made the connection explicit, one suspects that the presumption of regularity afforded to prosecutors is related to the ancient maxim “Omnia praesumuntur rite esse acta,” which roughly translated means “All things are presumed to have been done rightly.”  The maxim is sometimes recounted as “Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”—that is, “All things are presumed to have been done rightly and with due formality unless it is proved to the contrary.”  Recent cases involving the presumption of regularity do not invoke the maxim, but some older opinions do.  Justice Story invoked the maxim in Bank of U.S. v. Dandridge, stating:

[The law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie’s late valuable Treatise on Evidence.

As the excerpt from Justice Story’s opinion indicates, the presumption had a number of iterations.  But it also indicates that the presumption of regularity is not limited to executive officials—or even public officials; instead, it applies to everyone.  It is an evidentiary presumption that people act appropriately—an presumption that the party claiming otherwise bears the burden to disprove.

So how on earth did a presumption that applies to everyone and merely sets a burden of proof transform to shield prosecutors from discovery?  I’m not sure.  But I imagine that it is attributable, at least in part, to the fact that the courts do not want to be inundated with cases challenging executive action.  And I imagine that it is also related to the fact that the post-Warren Court has (at least at times) made a big show out of not interfering in the business of the political branches.

In any event, I think that it is worth noting the shaky foundations of the modern presumption of regularity.  History shows that it is an evidentiary presumption that applied to public and private actors alike; it was used to allocate burdens of proof, not to prevent discovery or to insulate executive action from judicial review. 

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM in Carissa Byrne Hessick, Criminal Law, Legal History | Permalink | Comments (3)

Monday, December 03, 2018

Guest Post: Come On, Justices Gorsuch and Kavanaugh! Doctrinal (and Intemperate) Error in the Timbs v. Indiana Oral Argument

The following post is from Rory Little (UC-Hastings and SCOTUSBlog).

It’s bad enough when a Supreme Court Justice expresses sarcastic impatience with an advocate; even experienced advocates are on edge when they appear in the nation’s highest court. Perhaps even worse when the advocate is a sovereign state’s Solicitor General.  But it really is inexcusable when the sarcasm is based on doctrinal error and thus wrong.  Here’s why that happened in last week’s oral argument in Timbs v. Indiana.

Background on the Timbs case and the Doctrine of Incorporation

The State of Indiana sought to forfeit Tyson Timbs’ $42,000 Land Rover after Timbs use it to transport small amounts of heroin to drug deals.  The Indiana Supreme Court declined to consider whether this violated the Eighth Amendment’s “no Excessive Fines” clause, because the U.S. Supreme Court has never definitively said that that clause is “incorporated” against the states (via the Fourteenth Amendment’s “no state shall” deny Due Process clause).  Whether or not Timbs should lose his vehicle, the Question presented in Timbs may seem easy: the doctrine of incorporation, developed only in the 20th Century, is well-accepted. Most recently the Court ruled in 2010 in McDonald that the Second Amendment’s “right … to keep and bear arms” is incorporated and thereby governs state as well is federal actions.  Although it is surprising to many, the Bill of Rights was originally intended to apply only against the federal government, and for our first 100 years or more it was said to have no application to state actions.  However, after a century of litigation, all rights that are found to be “deeply rooted in this Nation’s history and tradition,” “so as to be ranked as fundamental,” are now said (McDonald) to be “incorporated” against state action as part of due process.  This includes most – but see below, not all – of the Bill of Rights provisions.

The “deeply rooted in this Nation’s history and traditions” test might be well-satisfied by the Eighth Amendment’s command that “excessive fines” shall not be “imposed” -- although the common practice in the early days of our Union of forfeiting entire ships used to run contraband might give an Originalist pause regarding whether a rule against the forfeiture of vessels of crime is in fact so “deeply rooted.”  (As Chief Justice Roberts noted at the Timbs argument “I certainly understand the argument that … with respect to forfeiting instrumentalities of the crime, … [i]t’s always proportionate since it’s the way the crime is accomplished.”)

But one thing is doctrinally clear: not all the rights specified in the Bill of Rights have been incorporated against the States.  For some rights, like the “no Excessive Fines” clause, this might merely be an accident of history.  (One can find a good discussion of “why hasn’t the excessive fines clause already been incorporated?” in the November 26 episode of “First Mondays” with Professors Beth Colgan and Dan Epps”)

The Fifth Amendment’s Grand Jury right has, and for good reason, not been incorporated

But for one Bill of Rights provision in particular – the Fifth Amendment’s right to be charged by a Grand Jury for any “capital or otherwise infamous crime” – the decision to not incorporate is long-standing and quite considered.  Every student and professor of Constitutional Criminal Procedure understands this intentional anomaly.  Yet, as recounted below, it appears to be a “blank spot” in the doctrinal understanding of the Court’s two newest Justices, Gorsuch and Kavanaugh.

By way of quick summary, in 1884 in Hurtado v. California, the Supreme Court ruled in no uncertain terms that the Fifth Amendment’s grand jury provision need not bind the states.  The progressive 1879 Constitution of the young state of California had provided a new system, one viewed as more protective than the old grand jury system, permitting the charging of criminal defendants by a prosecutorial “information.”  California’s then-new Penal Code -- unlike secret, non-judicial, one-sided grand jury proceedings -- permitted the prosecution’s information to be immediately tested by a preliminary hearing, presided over by a judge, providing counsel for the defendant and allowing for cross-examination.  When Joseph Hurtado was charged with murder (and ultimately sentenced to death) based upon an information rather than grand jury indictment, the U.S. Supreme Court viewed it as a “question … of grave and serious import” whether the Fifth Amendment’s grand jury rule should be required, under the Fourteenth Amendment, to apply against the state.  In a thorough opinion (while certainly sounding different in some ways from today), the Court ruled that “progress [and] improvement” is not forbidden by the Fourteenth Amendment, and that California’s information system, with all its additional protections for a defendant, was at least as protective of “principles of liberty and justice” as the grand jury system.

Hurtado has well stood the test of time.  Critics of the federal grand jury system are many.  Meanwhile, over half the states allow criminal charging by information rather than grand jury; and two states (Pennsylvania and Connecticut) have abolished the use of criminal charging grand juries entirely.)  Thus the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause.

Intemperate Doctrinal Error at the Timbs oral argument

This brings us, finally, to Justices Gorsuch and Kavanaugh at the Timbs oral argument (transcript is here).  Justice Gorsuch lit into Indian’s Solicitor General Thomas Fisher (who I do not know) from the start.  He demanded agreement that “the Excessive Fines Clause is incorporated against the states.”  When Fisher resisted (unsurprisingly, since that is the Question Presented), Justice Gorsuch persisted:

 I mean, most of the incorporation cases took place in like the 1940s.” [– this is an erroneous account in itself as virtually all the criminal procedure incorporation case were products of the 1960s Warren Court –]  And here we are in 2018 still litigating incorporation of the Bill of Rights.  Really?  Come on, General.

The audio on this last statement (audio of the argument is here) is undeniably harsh: Justice Gorsuch’s tone is, frankly, unbecoming.

Fisher politely stood his ground, and Justice Kavanaugh took up Gorsuch’s point -- although he at least had the courtesy to pose his view as questions, a fortunate method since in fact he and Justice Gorsuch were wrong:        

Isn’t it too late in the day to argue that any of the Bill of Rights is not incorporated? … [A]ren’t all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?

As you now know, these rhetorical questions and accusations – “Come on, General” -- are flatly, doctrinally, incorrect.  Hurtado stands in their way, fully and after 134 years of careful consideration. 

Conclusion

Why does any other this matter, you may wonder?  Errors must happen all the time even in Supreme Court arguments, right?  Why single these four pages of transcript out?

Two reasons.  First, my perhaps old-fashioned view is that a little bit of humility is a good thing for at least new Supreme Court Justices, especially regarding areas of the law in which they may not have deep experience.  Neither Justice Gorsuch or Kavanaugh has any substantial background in criminal law, and at the D.C. Circuit at least Justice Kavanaugh’s criminal law exposure was not extensive.

Second, and far more important, one must point out doctrinal errors if one can before they leak into published Supreme Court opinions, not after.  It would be a grave error to say, sarcastically or otherwise, that all the rights in the Bill of Rights have been incorporated.  And it would be a far more serious error to suggest that a carefully considered procedure such as criminal information-followed-by-preliminary-hearing charging is somehow in danger of being wiped out by slapdash dicta in a Supreme Court case not even presenting the question.  It is for that reason, and with all respect for the understandably challenging task of being elevated to the Nation’s highest court, that the foregoing is published.

Posted by Howard Wasserman on December 3, 2018 at 11:12 AM in Constitutional thoughts, Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, October 31, 2018

"Volunteering for Execution" (again)

Reading and thinking about this Bloomberg news-item ("In Unusual Capital Fight, Inmate Gets His Wish and Gets Executed") took me back to a Prawfsblawg post of mine from more than ten (!) years ago.  Reacting to a then-recent decision by the U.S. Court of Appeals for the Ninth Circuit, I wrote: 

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of minefrom a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Perhaps the most famous death-row "volunteer" was Gary Gilmore, who imagined himself something of a romantic outlaw-hero.  As is described at (great) length in The Executioner's Song, he fought, bitterly and publicly -- with the help of some publicity-hungry lawyers -- the efforts by the ACLU, his own mother, and others to prevent his execution.  Gilmore insisted, in an open letter to the ACLU, "I know what I did. . . .  I know the . . . effect it had on the lives of two families.  I'm wiling to pay ultimately.  Let me!"  "Butt out of my life," he demanded.  To which the ACLU responded, "We don't think the world is obliged to be governed by your preference. . . .  We are not imposing our wants and attitude on you.  We are seeking to impose humanity and decency upon the state of Utah."

So, again, how should we think about Gilmore's or Comer's case?  On the one hand, we might follow a commitment to "autonomy" where it (appears to) lead, and say, something like, "we don't approve of the death penalty, but it's legally authorized, and it's your choice."  As it happens, though, most lawyers for death-row inmates who flirt with volunteering -- and many do -- are willing to contest their own clients' efforts to volunteer and to contest, if necessary, their own client's decision-making capacity.  Here is a question:  If one opposes capital punishment on the ground that it is inconsistent with a commitment to human dignity, is that commitment undermined or impeached by efforts to paint one's client as "incompetent" in order to prevent him from pursuing a course that one believes will result in immoral state action?

I once represented a man who was living -- like Comer -- on Arizona's death row.  He twice "volunteered" -- or started to -- but was dissuaded.  If he had not changed his mind, though, what should I -- or another lawyer who opposed the death penalty but also knew that the inmate was not delusional, just tired, lonely, and remorseful -- have done?

By way of an update:  A few years I posted the above, the person I represented had his death sentence vacated (thanks to the hard work of other lawyers).

Posted by Rick Garnett on October 31, 2018 at 10:11 AM in Criminal Law, Rick Garnett | Permalink | Comments (5)

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 22, 2018

Big Little Lies--Crim Law Question

GMy wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Posted by Howard Wasserman on August 22, 2018 at 11:11 AM in Criminal Law, Culture, Howard Wasserman, Television | Permalink | Comments (8)

Wednesday, July 25, 2018

Tribute(s) to Prof. Joshua Dressler

The latest issue of the consistently excellent Ohio State Journal of Criminal Law includes a bunch of tribute-essays from the field's heaviest hitters about CrimProf extraordinaire Joshua Dressler and his work.  I don't think it's a stretch to say that Dressler is a legal-education treasure.  I've been using his casebook (now a joint project with Stephen Garvey) since 2000 and I know that hundreds of my former students are more-than-grateful to his Understanding Criminal Law for cutting through the fog created by my lectures!   Take a look a the volume, and raise a glass to Joshua!       

Posted by Rick Garnett on July 25, 2018 at 11:15 AM in Criminal Law, Rick Garnett | Permalink | Comments (1)

Tuesday, July 24, 2018

Pragmatism and Compliance

One of the reasons I enjoy working in the compliance area is its pragmatism, which I think is reflected in two important ways. 

First, compliance is a pragmatic area of study for students.  I have seen this with both my actual compliance students and my research assistants.  For example, one of my former students went on to apply for a position with the SEC Student Honors Program and was eventually placed with the Office of the Whistleblower.  She emailed me shortly after starting the program to explain how she felt prepared for the placement, because we had covered the SEC whistleblower program during class.  Similarly, my summer research assistants often email me after on-campus interviewing to explain how their summer working for me was helpful to them during the process.  Because much of the “law” I rely upon is not available on Westlaw/Lexis, I tend to conduct specialized training for my research assistants where we cover what an enforcement action is and different methods of identifying and analyzing information that is not available in case law databases.  For those students who end up in a regulatory or white collar practice for the summer or after graduation, they tend to have a bit of a leg up on their counterparts who may have little to no awareness of these sorts of enforcement documents.

Second, compliance is an area that has huge applicability and ramifications for practicing attorneys.  I love that each of my projects tackles a concrete problem confronting practitioners and leaders within industry and attempts to help them sort through potential solutions or considerations they should take into account.  When I send out my reprints, I probably send about 20% to people in practice at law firms, in-house at corporations, or senior government officials.  To my delight, I often get a response back, which allows me to have informal conversations that help me get a better understanding of the challenges and struggles faced by those within industry.  These conversations almost always help me to sharpen my ideas.  And I am hopeful that these interactions will aid me when I eventually transition to some qualitative projects, which I plan to start working on in a couple years.

There are, of course, other ways in which working in the compliance space is pragmatic; just as there are other scholarly areas with similarly pragmatic attributes.  But the pragmatism—for both my students and my scholarship—associated with compliance work is one of the things I enjoy about working in the area.

Posted by Veronica Root on July 24, 2018 at 10:36 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (1)

Thursday, July 19, 2018

Something New, Something Old, and Something Borrowed

Writing in the compliance space has been extremely rewarding for many reasons, but today I will highlight the new, the old, and the borrowed. 

Something New

Compliance is still considered new within legal scholarship.  Its newness makes it an extremely fun area to write in, because it is often the case that you are one of the first, or one of very few, academics who have written on a particular topic.  For me this has been most true, I think, with my work on corporate monitors (here, here, and here). There were certainly excellent articles (e.g., here, here, and here) written prior to my own work, but because there weren’t a large number or articles on the topic, I have been able to carve out a scholarly niche for myself.  As a result, when it comes time to have an academic speak or write on the topic of monitors, I often get asked.  I can’t always take on the opportunity, but it is fun to have something you are known for, and there is still quite a bit of room for that in the compliance area.

Something Old

And yet, many of the issues important for compliance today aren’t at all new.  A great deal of compliance scholarship is rooted in more established areas, like corporate law, corporate governance, and corporate criminal law.  The iconic Caremark decision is a case about compliance (see this symposium).  Within industry, compliance is an established field with a variety of “professional” organizations with hundreds of members.  This is nice, because while compliance is “new” within legal scholarship, it is also “old” in a way that provides a strong foundation for the scholarly work being done.  In one of my forthcoming articles, I use classic BA cases to serve as the basis for a new argument related to identifying the root-cause of compliance failures within organizations.  All that to say, you aren’t starting from scratch when you identify a problem to write about.

Something Borrowed   

Finally, because compliance is inherently interdisciplinary, it lends itself well to borrowing concepts from other fields.  For example, many compliance scholars spend a fair amount of time drawing on behavioral ethics research (e.g. here and here), which is a literature primarily found within business schools.  Additionally, I often find that when I present a paper someone in the audience from another discipline will suggest I read something that I have not come across, which turns out to be completely applicable to what I am writing about.  A couple summers ago, for instance, someone made a relatively offhand remark about how I should look at interagency coordination literature, which is in the administrative law area, and that literature ended up serving as the theoretical basis for my paper.

* * *

All that to say, part of what I like about writing in the compliance space is that it is new, but not too new, while allowing the flexibility to learn about a number of topics from other areas of law. 

Posted by Veronica Root on July 19, 2018 at 12:37 PM in Corporate, Criminal Law | Permalink | Comments (0)

Monday, July 16, 2018

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.

Posted by Howard Wasserman on July 16, 2018 at 08:44 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (26)

Friday, July 13, 2018

Teaching Compliance

During bar study, July 4th is a big “you don’t have much time left” marker, and that is how I feel about the academic summer.  As soon as the fireworks have died down, I start thinking about teaching.  I love teaching.  I love teaching Contracts to 1Ls, in part, because it is hard to imagine a greater privilege than being able to help introduce the law to a brand new set of students.  But I also love teaching my Compliance course, because it allows the students to confront legal issues that are still being debated and determined.

Developing my Corporate Compliance & Ethics Seminar was both exciting and challenging.  At the time I started teaching it there was one compliance casebook (it is excellent), but I wanted to use a different set of materials for a seminar.  As many of you know, coming up with a set of materials for a course from scratch is time intensive, but it is also very rewarding, particularly when it overlaps with your scholarly interests. 

I decided to break my course up into modules and to use case studies as a vehicle for learning each concept covered.  Module I covers introductory materials like the Organizational Sentencing Guidelines, the importance of self-policing, as well as some background reading in behavioral ethics.  In Module II, we go through different actors within compliance efforts, like regulators, gatekeepers, and whistleblowers.  In Module III, we cover substantive compliance areas.  I have traditionally covered the Foreign Corrupt Practices Act, Antitrust, the False Claims Act, and Title IX.  In Module IV, I merge the theoretical concepts we have learned in class with some more practical concerns.  This latter module has changed each year I’ve taught it, with last year focusing on conflicts of interest and sanctions for compliance officers.  Finally, I weave in coverage of applicable Model Rules of Professional Conduct throughout the course.  

In other words, there is a whole lot of information crammed into a 14 week course, but it has generally been quite successful.  I use some classic exemplars for case studies—like Enron and Siemens—but I also use current events when I can.  For example, during last year’s whistleblowers class, I put together materials from the Wells Fargo scandal.  The mix of (i) case studies, (ii) theoretical background reading, and (iii) Model Rules has sparked intensive discussions about the role lawyers play within compliance efforts and where the boundaries should be when defining the scope of responsibility that lawyers should have for ensuring successful compliance programs are created and developed.  It is fun to teach, and the students seem to enjoy the concepts learned.  And because this is a class where the law is still quite dynamic, I’m looking forward to amending my antitrust and whistleblowers sections next week!

Posted by Veronica Root on July 13, 2018 at 08:27 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Monday, July 02, 2018

Compliance

Many thanks to Howard for arranging to have me contribute as a guest blogger this month!    

A few months before I began my tenure-track position in 2014, I was nervous that my seemingly diverse research interests were going to create problems for me down the line.  I had interests in professional responsibility, corporate governance, workplace law, and organizational misconduct, which meant I did not feel like I “fit” neatly within a field of legal research. I knew that my research was all connected, but I felt like conveying that connection to others was sometimes a bit difficult.  Thankfully, I had a wonderful conversation with a senior scholar who said something to the effect of:  “You just research compliance.  It is kind of new, so people may not realize it, but that is what you are doing.”  These words were instantly clarifying and gratifying.  I suppose I knew I was researching compliance issues, but not having met many scholars who defined themselves in that way at that time, I did not realize it was legitimate to actually use the compliance title to describe my work. 

Today, compliance has developed into its own, albeit some might still say new, field.  There are several law schools with centers, programs, or areas of study in compliance.  The ALI is working on a set of Principles of the Law in Compliance, Enforcement, and Risk Management.  And there are a variety of compliance-specific conferences that I can attend.  Compliance is, however, an interdisciplinary field.  Some people writing in the space describe themselves as corporate law scholars, some as criminal law scholars, and there is quite a bit of very good work being done by business school professors.  Personally, while I self-identify as a compliance scholar, I do so with the caveat that I draw on research from several areas within legal scholarship and organizational behavior.  More specifically, the underlying research question that motivates my scholarship asks how one might address dysfunctions within organizations in an effort to create more productive, healthy, and ethical environments within firms.     

This month I’ll be blogging a bit about my compliance research, but also about the experience of working within a field that is (i) still emerging and (ii) interdisciplinary in scope.  For me this has been a really exciting endeavor, but it does have its own set of challenges to work through.  But for now, I will just wish you all an early Happy July 4th. 

Posted by Veronica Root on July 2, 2018 at 07:55 AM in Blogging, Corporate, Criminal Law | Permalink | Comments (0)

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)

Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (3)

Wednesday, May 09, 2018

Prejudice, Legal Realism, and the Right/Remedy Relationship

Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.

Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.

I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.

That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.

Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!

Posted by Justin Murray on May 9, 2018 at 06:25 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (4)

Wednesday, May 02, 2018

Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)

Posted by Justin Murray on May 2, 2018 at 11:54 AM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (6)

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)

Wednesday, November 29, 2017

Carpenter – Post-Oral Argument Thoughts

The following guest post is by past guest-Prawf Andrew Ferguson (UDC).

Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States.  Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse. 

Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days.  Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction.  Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.

The reason for the buzz of interest is because the case presents a real legal puzzle.  In a world where almost all of our digital devices work through third parties, the idea that law enforcement can simply obtain the data from our smart devices without a warrant means that our modern culture of self-surveillance has also potentially created a governmental surveillance state.  At the same time, the third party records in Carpenter were owned, controlled, and used by the phone companies, raising questions of who owns this data, who controls it, and does sharing it for one purpose also mean sharing it for all other purposes including government investigation? 

Much (almost instant) commentary has already been posted on this case, but two things are clear: first, the stakes for the future of the Fourth Amendment are quite high and demand an answer; and second, no Justice or advocate has a completely coherent answer to how the third party doctrine should apply in the digital age.

As to the stakes – almost any digital device you can imagine connects to third party providers (and creates third party records) in order to make the magic of “smart” devices happen.  In an interconnected world filled with smartphones, smart cars, smart homes, and smart medical devices, ubiquitous communication by email, text, Tweet, or chat, you share your data with private companies.   In a world of data trails, you are a potential police target at all times.  Your smartphone, your smart car, your fitness band provide exact geo-locational clues to your whereabouts.  Your location is being tracked, and police have recognized the utility of this information to prove criminal acts and patterns.  Data trails provide a wealth of clues to past and present criminal activity

As to the debate in the high court, the Supreme Court was, perhaps not surprisingly, divided.  Questions of how to distinguish decades old precedent mixed with questions about new future-oriented technology.  Hypotheticals about modern subpoena power mixed with queries about the Writs of Assistance.  John Adams got a shout out.  So did Stephen Henderson’s idea of a Fourth Amendment time machine.  So did the empiricists’ amicus brief.  Again, for Fourth Amendment nerds it was a party. 

At least from the questions at oral argument, it can be intuited that some Justices wish to rethink the existing third party records doctrine, and others wish to see how to make it fit a digital age.  (As a disclosure, I helped author one of the amicus briefs on behalf of Mr. Carpenter).  Theories abounded, with no clear resolution of how the Justices would decide. 

But one question – signaling perhaps a new way of thinking about the Fourth Amendment – seemed to trouble at least a few members of the Court – namely what rights (property based or otherwise) do the consumers of smart devices have over their own data.  This is a huge question in the digital age.  How does the Fourth Amendment protect smart data?  How do we conceptualize who owns or controls the location data coming from Carpenter’s cell phone?  

Here is how Justice Gorsuch framed the question to Carpenter’s lawyer Nathan Wessler of the ACLU:

JUSTICE GORSUCH: Mr. Wessler, I'm sorry, one quick question. Focusing on the property-based approach, putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? So say -- say a thief broke into T Mobile, stole this information and sought to make economic value of it. Would you have a conversion -- would your client have a conversion claim, for example, under state law? Have you explored that at all?

Similar questions were put to the government’s advocate, Michael Dreeben:

JUSTICE GORSUCH: Mr. Dreeben, I'd like to -- I'd like to drill down on that and return to Justice Kagan's question. You know, the facts here wind up looking a lot like Jones.

One thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach.

So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen.

Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

            The question likely arises from a law review article written by William Baude and James Stern in the Harvard Law Review called The Positive Law Model of the Fourth Amendment and in Richard Re’s response essay, The Positive law Floor.  Both articles were cited in Carpenter’s brief and apparently caught the attention of the Court.  But, as anyone who has read those thoughtful pieces knows, positive law when it comes to the Fourth Amendment gets confusing and contested pretty quickly in practice.  It is not that the Positive Law model doesn’t offer some helpful ways to conceptualize the possible future rules, but it is hard to operationalize because positive law is messy. 

So, in the spirit of the ongoing debate, I offer my own thoughts to the intuition that Justice Gorsuch was reaching for – that there is some property-like element to our smart data – but with a different conceptual hook.  

My argument is not about positive law, but about the ownership/security interests we have in the data we create.  Smart data (including location data) is partially ours, and because it comes from our effects, we can claim some control over it.  The argument turns on the simple principle that the Fourth Amendment protects not simply the physical integrity of “persons, papers, homes, and effects” but also the information that comes from those constitutional derived sources (which would include Timothy Carpenter’s cell phone – as an effect – and its smart data).  As I wrote in The “Smart” Fourth Amendment:

The Fourth Amendment--at its core--protects “informational security” …. Underlying the protection of persons, papers, homes, and effects and behind the expectation of privacy lies a desire to guard personal information from government intrusion.

In other words, it is not the corporal person, alone, that deserves protection, but also the information about the person. It is not the sheaf of papers, but the revealing personal details in those words that matter. It is not the physical home that is as important as what happens in the home. …

In this longer work on how the Fourth Amendment should adapt to new “smart” technologies, I developed the idea of “informational security” the principle of why the Fourth Amendment should protect smart data, again similar to Justice Gorsuch’s intuition that there is some property/security right to control the locational information created by individuals through the use of smartphones.  [In the following excerpt from the article, I deleted the footnotes for easier reading.]

 

[I]nformational security is not an abstract concept, but arises from those particular constitutionally referenced sources. The Fourth Amendment secures someone, something, or somewhere. Information obtained from a constitutionally recognized source--effects, houses, persons, papers--gains derivative protection due to the source of the information. Focusing attention on a derivative constitutional source provides a useful and relatively easy guidepost to identify which types of information deserve constitutional protection.

Such derivative protection also covers information at some remove from the actual constitutionally protected interest. Charlie Katz's voice exited the closed glass door and was captured by the microphone taped on top of the phone booth. Antoine Jones's travel coordinates left the car and was captured by satellite technology. David Riley's smartphone communications data existed both on the phone and outside of it (in the cloud). Yet, the protections of the Constitution carried to these intangible, invisible, separate pieces of personal information. The constitutional protections of persons, houses, papers, and effects might, thus, be better characterized as protections of the information emanating from those constitutionally protected interests.

 

As laid out in more detail in the article, one can trace through the history of the Fourth Amendment and see this emphasis on protecting informational details arising from constitutionally protected sources (effects, homes, persons, papers).  For questions about whether we have any property rights in our own smart data, this can be an important consideration. 

            For example, in terms of effects:

Central to the protection granted effects has been securing personal information about those effects. The sparse Founding Era literature suggests a focus on protecting objects which revealed something about the owner--religion, culture, status, or family associations. Searching and seizing a colonist's religious objects was not offensive simply because it interfered with property rights, but because searching revealed personal information about family and faith. Rummaging through bedroom drawers was not solely about the inviolate nature of property but, as the early history suggested, also about revealing information that might be contained in those drawers. Interpreted one way, the protection of effects has largely been the protection of what the personal effects revealed or contained.

Similarly, while Justice Scalia attempted to ground his Jones argument in property rights, the harm of affixing the GPS device was not in any real sense to physical property (the car was undamaged). The real harm was exposing the revealing personal data about the effect (car). Placing the device on the car might have been a seizure, but what made it a search was collecting the locational data intercepted by police (the “use of that device to monitor the vehicle's movements”). The “use” in that case was the capturing of data trails via satellite transmissions communicated by cell phone to a government computer. By using the car to track its owner, the government invaded the informational security of the effect. Justice Scalia's Jones analysis requires both parts--trespass plus use--and as Justice Alito argues in his concurrence, neither alone should constitute a search under Scalia's reasoning. In holding that this interception/collection was a Fourth Amendment search, Justice Scalia implicitly acknowledged the centrality of informational security. What mattered was securing the information coming from the effect, not just securing the effect itself.

The concurring Justices in Jones also focused on the personal information revealed from the GPS device. The reason a twenty-eight-day tracking of locational data became a search rested solely on the informational exposure that resulted. Such collection of personal data points (touching on associational, health, and other private travels) became of constitutional significance when the data trails could be revealing of private, personal actions. The expectation of privacy was not about expectations from the effect (the car) itself, but the information to be inferred about the travels of the car. This personal information essentially radiating off the car is what created the constitutional harm.

The article goes on to discuss the other constitutionally protected terms and the quirks and problems with the theory of informational security, but at its core the article offers a way to get to a property-oriented approach to data protection without diving into positive law.  (Although, candidly, there are 84 pages of my article not excerpted that add a whole host of complexity to it). 

So, if the Supreme Court is looking for a reason to protect smart data under the Fourth Amendment, it offers a starting point for debate.  And, the best thing about the Carpenter argument day was that for one shining moment, everyone was focused on thinking about the Fourth Amendment and how it should apply to the digital age.  Can’t wait for the decision. 

Posted by Howard Wasserman on November 29, 2017 at 06:41 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (13)

Monday, October 30, 2017

Your Crim Pro Final

Here.

Posted by Howard Wasserman on October 30, 2017 at 08:06 PM in Criminal Law, Howard Wasserman | Permalink | Comments (3)

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 (6)

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)

Monday, June 26, 2017

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)

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)

Saturday, March 04, 2017

Thanks -- and Predicting the End of One Marijuana Prohibition

Thanks to Howard and the other Prawfs for hosting me! I’ve enjoyed writing about a few of the legal topics now confronting state marijuana reforms.

Marijuana legalization has been one of the most notable law reform movements of the past two decades. The chart below, reprinted from Chapter 1 of my Marijuana Law, Policy, and Authority casebook, displays the proliferation of three types of state legalization from 1996 to 2016.

Chart

In this final post, I want to hazard a (new) guess as to when medical marijuana will be legal in all fifty states. I say “new” guess because a few years ago, using data from 1996-2013, I boldly(?!) predicted that medical marijuana would be legal in all 50 states by  . . . 2039. Based on the quickening pace of reforms, I now predict that medical marijuana will be legal in all states by . . . 2032, or roughly 46 years after California got the ball rolling. (To put that timeline in historical perspective, it took about 40 years for all of the states to repeal their prohibitions on alcohol.) 

Posted by Robert Mikos on March 4, 2017 at 01:08 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Tuesday, February 14, 2017

Could Jeff Sessions Stifle State Marijuana Reforms?

Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.”  The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think  a challenge to most reforms would clearly fail.) 

However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.

First, since 2014, Congress has barred the DOJ from using appropriated funds “to prevent . . . States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The quoted language has been inserted in riders to omnibus spending bills for the last couple of budget cycles. Although the rider language is not terribly clear, the Ninth Circuit has interpreted it as barring the DOJ from prosecuting anyone for actions that comport with state medical marijuana laws. This means that, at least until the current rider expires later this year, the DOJ probably couldn’t initiate legal action against state licensed medical marijuana suppliers. Even recreational marijuana suppliers might be off limits under the Ninth Circuit ruling if they also serve the medical market (as they do in several states) -- though that's an untested proposition.

Second, even if AG Sessions demands a crackdown on marijuana, it’s not clear that the 93 United States Attorneys – i.e., the ones who can actually bring prosecutions – will necessarily oblige him. For the time being, many of those USAs are holdovers from the Obama Administration, and they might not share Sessions’ antipathy toward marijuana. But even after Trump has a chance to replace them, there is no guarantee that his USAs would necessarily heed Sessions’ demands regarding marijuana enforcement. USAs have a degree of independence from the AG and central DOJ. And if asked to do something that is locally unpopular – like crack down on the marijuana industry in a legalization state – some USAs might balk, either because they believe it's the right thing to do or because they aspire to local political office and fear alienating large local constituencies who support state reforms. 

Third, the DOJ has very limited resources. The DEA, the unit within the DOJ that has primary responsibility for enforcing federal drug laws, has only about 5,500 agents total – and they’re responsible for policing all drugs (licit and illicit), worldwide.  As I have written elsewhere, even before the Obama Administration first adopted a deferential enforcement policy toward marijuana in 2009, the DOJ couldn't take on all of the marijuana cases that had previously been handled by reform states. The task facing the DOJ has not gotten any easier in the intervening years. There are now 44 states (including DC) that have legalized some form of marijuana, including 29 that have full-fledged medical marijuana laws (and 9 of those have recreational marijuana laws). That’s an awful lot of ground for the DOJ to cover with only limited resources, especially when the agency is also attempting to crack down on various other offenses (immigration, etc.). To be sure, the DOJ could (eventually) make life difficult for some marijuana suppliers. But I think the number of prosecutions (and other legal actions) the agency could undertake would be too small to make much of a dent in the state legalized marijuana market (even given harsh sanctions).

Ultimately, AG Sessions might be able to forestall reforms at the federal level –– assuming he has some clout in Congress. For example, he might be able to block or at least delay passage of federal legislation that would enable banking with the marijuana industry. However, I don’t think Sessions will be able to stifle state marijuana reforms.   

Posted by Robert Mikos on February 14, 2017 at 05:05 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (1)

Wednesday, February 08, 2017

Must Police Return Wrongfully Seized Marijuana?

Imagine the following scenario. P is a local police officer who stops D for speeding. In the course of a consensual search of D’s car, P finds a small bag of marijuana. State law bans the simple possession of marijuana by most people, so P seizes the drug. However, D subsequently convinces a judge that he was allowed by state law to possess the marijuana (say, because he’s a qualified patient under the state’s medical marijuana law). Following the judge’s ruling, D asks P to return the marijuana. Must P do so?

Many states explicitly require the police to return marijuana they have wrongfully (as a matter of state law) seized from individuals like D. But the police sometimes refuse to obey such requirements. The police claim that the act of returning marijuana constitutes a drug distribution offense under 21 U.S.C. Section 841, since federal law defines “distribution” as any transfer of a banned substance. Hence, a state law requiring police to return marijuana poses a direct conflict with and is thereby preempted by federal law.

Ah, but there is a twist. 21 U.S.C. section 885(d) expressly immunizes state police from “civil or criminal liability” under federal drug laws if they are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” The provision was likely adopted to shield police from liability for participating in sting operations. But marijuana users have claimed that Section 885(d) also applies to other scenarios, including the return of marijuana, and thereby resolves any conflict between state and federal law.

Who is right? There are at least four possible ways of resolving these disputes, none of which is entirely satisfactory:
  1. Adopt a purposivist interpretation of Section 885(d) and side with the police. Just last month, for example, the Colorado Supreme Court found that Section 885(d) would not immunize state police for returning seized marijuana; thus, state police could ignore a state law that required them to do so. Colorado v. Crouse. This interpretation is arguably consistent with the purpose of Section 885(d), but it is difficult to reconcile with the provision’s text. The Crouse court, for example, suggested that a police officer would not be “lawfully engaged in the enforcement” of state law if she violated federal law—i.e., by distributing marijuana. But the same could be said of the undercover police officer who sells marijuana during a sting operation.
  2. Adopt a literal interpretation of Section 885(d) and side with users. In one case, for example, a California appellate court found that Section 885(d) plainly shielded state police from federal criminal liability for returning marijuana to a medical marijuana patient. City of Garden Grove v. Kha. The Kha court reasoned that Section 885(d) “makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties. . . . There can be little question the [City] police would be acting pursuant to their official duties, were they to comply with the trial court’s order to return [the citizen’s] marijuana to him.” This interpretation arguably comports with the text of Section 885(d) (and prevents state agents from undermining state marijuana reforms). But it difficult to reconcile with the text of another provision of the Controlled Substances Act. 21 U.S.C. Section 903 expressly preempts any state law that poses a “positive conflict” with the CSA. To be sure, Congress might not care if state police return marijuana to the same person from whom they seized it. But interpreted literally, Section 885(d) might block preemption of other, more controversial state actions. Imagine, for example, that a state orders its agents to produce and sell marijuana. Indeed, in the early 2000s, the City of Oakland, California, thought it could immunize a local medical marijuana dispensary by deputizing its owner (Ed Rosenthal) and ordering him to supply the needs of the City's medical marijuana patients. When Rosenthal was later prosecuted by the federal government, the district court rejected his assertion of Section 885(d) immunity, though in so doing, it (like the Crouse court) had to rely on a questionable reading of Section 885(d). United States v. Rosenthal.
  3. Find that the anti-commandeering rule empowers state agents to return marijuana. The idea is that if Congress can’t force state police to seize marijuana in the first instance, it also shouldn’t be allowed to force them to retain the drug if they no longer wish to hold it. To be sure, Congress can preempt some state actions that violate federal law – say, growing marijuana at a state-run farm. But there has to be some limit to preemption if the anti-commandeering rule is to do any work. Otherwise, as I’ve argued elsewhere (p. 1446-49), Congress could prevent states from voting to repeal their marijuana bans, releasing prisoners held on marijuana charges, etc. (both of which entail actions of some sort). So as long as state police do no more than restore the proverbial state of nature (say, by returning marijuana to its original owner), Congress may not be able to stop them. (I sketched this argument in the article above (p. 1459-60).) If a court followed this approach, it could sidestep the 885(d) issue and users would win. 
  4. Find that the police lack standing to challenge state duties as preempted. The likelihood that any police officer would actually be prosecuted for returning marijuana is almost zero (because of DOJ enforcement memoranda, congressional spending restrictions, etc.). In other words, the threatened injury to the police is too speculative to satisfy federal standing requirements. If a court followed this approach, it again wouldn’t have to reach the merits of the Section 885(d) issue and users would presumably win. However, even if this standing argument would work in federal court, it wouldn’t necessarily work in state court (where most of these claims have been raised ). That’s because state courts don’t necessarily apply the same restrictive standing rules as their federal counterparts.

As I noted above, none of these approaches is entirely satisfactory to me. But I’m interested to hear what others think – and whether there might be another solution to the puzzle.

Posted by Robert Mikos on February 8, 2017 at 11:10 AM in Constitutional thoughts, Criminal Law | Permalink | Comments (13)

Thursday, February 02, 2017

Teaching and Writing About Marijuana Law

Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.

For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.

This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

That’s it for now. In the coming days, I’ll write about several of the questions posed above.

Posted by Robert Mikos on February 2, 2017 at 09:54 PM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2)

Wednesday, January 04, 2017

Book Recommendations: Alafair Burke's The Ex & Elizabeth Strout's My Name is Lucy Barton

Happy New Year! I spent the winter break reading lots and lots of fiction, among other things, and thought I'd mention two good ones.

Alafair Burke, the most prolific contemporary prawf-novelist I am aware of (another full time law prof, and now dean, who is a super talented fiction writer is my former army commander Yuval Elbashan, but his books are all in Hebrew), has published over a dozen crime novels, including two best-selling series. She also co-authors with Mary Higgins Clark. I just finished her newest novel The Ex. Its in the suspense genre of Gone Girl and The Girl on a Train, told by first person narrator Olivia Randall, a criminal defense attorney (As Gillian Flynn writes, “Burke’s female characters are always very involving, with big, strong voices.”). The Ex is a great fast read -- the attorney's perspective, knowing and not knowing her client and wondering whether or not he is guilty, is sharp. I liked the realistic feel of the court proceedings, the dynamics between the opposing attorneys, and the intensity of the trial preparation. If any of you ever wondered about a murder case and considered whether and how is it possible for seemingly normal, normative, people to plan monstrous crimes, there is a part in Burke's novel that I found particularly interesting. Olivia the protagonist visits a psychiatrist who has specialized in criminology. The psychiatrist tell her: "Because I've testified in numerous homicide trials, (I've been asked about) my insight about how a quote-unquote normal person can come to commit cold-blooded, premeditated murder." "And?," Olivia asks her. The psychiatrist continues:"I've spent a good number of hours of my career talking to people who admit to being murderers. These seemingly normal people tell me how it starts small. They get fired from their job, or dumped by their husband, and they begin to wish some kind of bad upon the person responsible - typically, that the world will come to see the person for what they really are. And when karma or fate or whatever doesn't come through, the seemingly normal person starts to think, 'what if they died?' And that turns into 'What if I killed them?' And eventually, 'How would I do it?' and 'Would I get away with it?'" The thoughts become a training ground until the person is conditioned to the idea of killing and it's no longer shocking to them, she explains. 

Pulitzer winning Elizabeth Strout does it again with My Name is Lucy Barton. Strout is a minimalist, understated, heartbreakingly honest writer and this book is unforgettable. It happens mostly in a hospital and mostly through a conversation, and extended moments of silence, between a daughter and her mother. It is a book of our times, telling the stories of Midwestern poverty, fear and contempt toward those who go away and aspire to other (better?) lives, childhood abuse, forgiveness and love. Lucy's dad walked her brother down the street yelling at him a "f*cking fagg*t" in front of everyone when he was caught trying on Mom's high heels; Lucy's parents locked multiple times in the truck including during the winter. She survived her terrifying physically and mentally cold conditions by staying late at school where it was warm and she could read. Her parents basically disowned her when she got into college with a full scholarship. And yet she loves them, understands them even. And maybe they too can understand her as time goes by. We need more books like this as we move into 2017. 

Happy New Year, may it be full of good fiction and non-fiction. Hope to see many of you here at AALS! Don't forget the MarkelFest happening tonight.

Posted by Orly Lobel on January 4, 2017 at 11:55 AM in Books, Criminal Law, Orly Lobel | Permalink | Comments (0)

Monday, December 12, 2016

The Privacy of Criminal Records

Criminal records in the United States are more widely accessible than anywhere else in the world. Congress allows various industries, organizations and businesses access to the criminal histories of job applicants, employees, and volunteers. Inmate locators allow members of the public to find the location, crime of conviction, custody status and sentencing terms of detainees. Anyone can also look up in online registries the name, address, photograph and offense history of sex offenders and, in some states, those convicted of violent crimes. The public and media have daily access to arrest blotters, docket sheets and court case indexes. A few states even make publicly available documents within court records, like pre-sentence reports, that can contain mental and physical health information, and intimate personal and family history.

All this accessibility enables entrepreneurial secondary aggregation and distribution of criminal history information. Private information vendors market and sell lucrative criminal background check services, populating their databases with information downloaded from publicly-accessible sources and purchased from state and local governments. Particularly troubling are those companies that collect publicly available information about arrestees and offenders, including names and photographs, post them to their website, and then offer to remove the embarrassing information for a fee (it's not all that far from blackmail).

Are criminal records public information infused with public interest to which others should (or even must) have access, or are they personal information entitled to privacy protection?

In the U.S., the unequivocal answer is that they are public information. There are several different and contestable reasons why we've come to that answer, and inextricable links to other areas of law (such as tort law) that seem to drive access and disclosure, which I will cover in future posts. For now, I want to acknowledge that the answer need not be that criminal records must be exceptionally public.

Indeed, in Europe (as a general rule), it's nearly the complete opposite. Individual criminal history records created and held by police are not available to non-police agencies, much less the media and general public. Nor may European employers and landlords obtain criminal history information from the courts or national conviction registers. Indeed, the Spanish Supreme Court held that the country’s National Conviction Register violated an individual’s right to privacy by disclosing his criminal record to the Election Commission.In protecting criminal record information from disclosure to the Election Commission, the Spanish Supreme Court reasoned that a criminal conviction is “personal information” and the constitutional right to privacy “guarantees anonymity, a right not to be known, so that the community is not aware of who we are or what we do.” Another case prevented the posting on a website of the names of civil servants who had previously been found guilty of torture.

For Americans steeped in sex offender registries and background checks, concealing criminal records from anyone, much less torture convictions of government employees from election officials seems unfathomable. And conceiving of criminal records as personal information, to which the community cannot become aware, seems like a world truly an ocean away. In the days ahead, I hope to explore when and where the U.S. could, and arguably, should reconceive the public nature of criminal records.  

Posted by Kevin Lapp on December 12, 2016 at 12:17 AM in Criminal Law | Permalink | Comments (1)