Archive for the ‘Criminal Law’ Category
The Passive Voice in Statutory Interpretation
posted by Anita Krishnakumar
Thanks to Dan et al. for the opportunity to guest-blog this month. For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999). Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Defendant Jones had participated in a carjacking with two other men. While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head. The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death). The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119. If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.
In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).” While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors. This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.
November 2, 2009 at 1:38 pm
Posted in: Criminal Law, Supreme Court
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Appearing for the Defendant, $186,416.00: Medical Marijuana, State Law, and the Fourth Amendment
posted by Deven Desai
The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.
The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.
While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.
I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.
October 21, 2009 at 7:25 am
Tags: Fourth Amendment, medical marijuana
Posted in: Criminal Law, Criminal Procedure, Health Law, Privacy (Law Enforcement)
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The Use of DNA Evidence in Criminal Cases
posted by Gerard Magliocca
I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year. It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers? When DNA Alone is Enough to Convict.” The Abstract follows the jump:
October 19, 2009 at 5:14 am
Posted in: Criminal Law, Evidence Law
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Problem-Oriented Policing in Chicago Public Schools
posted by Sarah Waldeck
The new chief officer of Chicago public schools has a fresh strategy for preventing the killings of public school students. Such killings occur with alarming regularity; 67 since the start of the 2007 -2008 academic year. If this doesn’t sound bad enough, the 67 doesn’t include the hundreds of students who were shot or beaten but managed to survive. Right now Derrion Albert—the football player and honor student who was beaten to death when he got caught between rival gangs—is dominating the headlines. But anyone who lives in Chicago expects that we’ll soon know another name. The violence is relentless.
Enter Ron Huberman, the new chief officer of Chicago public schools. He has a plan to stop the killing, one that is based on an analysis of more than 500 students who were attacked. The plan might work, provided that Chicago is able to resist its inevitable temptations. Read the rest of this post »
October 9, 2009 at 12:29 pm
Posted in: Criminal Law, Criminal Procedure
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Umpires Don’t Make Law, Players Do.
posted by Dave Hoffman
Via Deadspin comes this great video of Joe Mauer, apparently reading the catcher’s signs and relaying them to batter Jason Kubel.
Putting aside Mauer’s denial, the interesting thing about this is whether it’s actually wrong to steal signs. There’s no rule against it, and so the answer is: it depends on the players’ perceptions of the situation. If you run afoul of the norm (i.e., a batter looking behind him) then you are likely to face informal sanctions in the form of a baseball to the body. Mauer’s sign-stealing, by contrast, seems acceptable: (1) it was a crucial game; and (2) the Tigers didn’t protect their signs despite knowing a man was on second. But it isn’t so acceptable that he can admit it publicly. That is: Mauer’s sign stealing was at once lawful, permitted in the social context, and publicly wrongful.
(H/T: Reader CDP. For more on the history of sign-stealing in baseball, check out The Echoing Green: The Untold Story of Bobby Thomson, Ralph Branca and the Shot Heard Round the World)
October 2, 2009 at 8:49 am
Posted in: Criminal Law, Culture, Current Events, Sociology of Law
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Burglars Like Facebook, Too
posted by Danielle Citron
Facebook offers much to law enforcement, perhaps more than many might think. Last week, a Pennsylvania man was arraigned for felony burglary, having allegedly broken into a woman’s home and stolen jewelry. The defendant seemingly played a big role in ensuring his capture: he checked his Facebook page during the burglary. The victim noticed that the defendant’s Facebook account appeared on her computer after the burglary. No joke. This takes harming oneself through social networking to a new level.
September 22, 2009 at 11:53 am
Posted in: Anonymity, Criminal Law, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Technology, Uncategorized, Weird
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A Semantic Term of Interest
posted by Gerard Magliocca
In the graduate-student murder that occurred at Yale last week, media reports indicate that the police are looking at a “person of interest.” I guess this term has now officially replaced “suspect” in the lexicon. As far as I can tell, this change started with the case of Richard Jewell, the alleged Olympic bomber, who was cleared of any wrongdoing but successful sued various news outlets for calling him a suspect.
Does this distinction mean anything or is it just a feel-good change? Is someone is falsely or incorrectly labeled as a “person of interest,” are they barred from recovering because that sounds more innocuous? I doubt it, but input from people who know would be welcome.
My favorite example of semantic failure, BTW, is when governments officials in the early 1930s decided that using “panic” to describe economic downtowns was a mistake. So they came up with “depression.” Quite the pick-me-up.
UPDATE: I really should have called this post “Round Up The Usual Persons of Interest.” Oh well.
September 15, 2009 at 3:27 pm
Posted in: Criminal Law, Current Events
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The Informant!
posted by Michael Kang
It’s not often that I hear about a new Hollywood movie based on the facts of a case that I first encountered while clerking, but The Informant!, directed by Steven Soderbergh and starring Matt Damon, is just such a film. It tells the story of Mark Whitacre, a central actor in a case decided while I was clerking for my judge on the Seventh Circuit. Whitacre served as the key informant in a successful FBI investigation into price-fixing charges against Archer Daniels Midland Co. that sent top executives to prison. As my co-clerk Kevin Metz observed, the case featured the type of direct evidence of an agreement to fix prices that antitrust professors explain is almost never available in antitrust prosecution. Whitacre secretly recorded many hours of conversations with co-conspirators in the lysine industry over three years, all while bragging carelessly to others about his role as an FBI informant and embezzling millions from ADM under the FBI’s nose. During my clerkship year, we worked on a number of memorable cases, but United States v. Andreas probably featured the most colorful facts. Whitacre was a very odd and unpredictable personality who suffered from bipolar disorder, which Matt Damon plays up for comic effect in the movie.
September 11, 2009 at 12:51 pm
Posted in: Antitrust, Criminal Law, Movies & Television
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Teaching Sexual Violence
posted by Jaya Ramji-Nogales
I’m into week two of Evidence, which is one of my favorite classes to teach — full of vivid examples and fun hypotheticals, which make it relatively easy to keep students engaged. Each year, however, I hit the tricky problem of how to deal with the sections of the course that cover crimes of sexual violence while maintaining the pedagogical goals of maximizing participation in class discussion and encouraging thorough and comprehensive study habits. There are two main parts to this question — how to approach cold-call questioning in this area of the course and how to test these issues. I’m sure others who teach evidence, criminal law, international criminal law, and similar courses have faced these problems, and I’m eager to hear how you’ve addressed them. Read the rest of this post »
September 4, 2009 at 12:06 pm
Posted in: Criminal Law, Evidence Law, Feminism and Gender
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Weird Law Day: Big Time Jewel Heists and MS Word Enjoined
posted by Deven Desai
Yesterday I saw an article about a jewelry heist in London where two men in nice suits got away with $65 million of merchandise. The weird part to me was that the store had a similar event in 2003 where 23 million pounds worth of jewels were taken, and more recently in 2007 a branch suffered a robbery again with well-dressed, and this time chauffeured, men stealing 10 million pounds in gems. So that makes me wonder whether the rich really do trust those who seem rich (i.e. Madoff types) and then get ripped off. In addition, who is insuring and/or protecting these stores? Right now neither can be happy. Still that is small compared to the Microsoft news.
Ah, Texas! Or to be more precise the U.S. District Court for the Eastern District of Texas, home to patent fun like no other place in the country (although I recall someone is showing how other district courts are now competing with E.D. Texas for the patent crown). It seems that Mighty MS and its Word program has been found to violate a patent. According to CNET “In Tuesday’s ruling, Microsoft was also ordered to pay an additional $40 million for willful infringement, as well as $37 million in prejudgment interest. The order requires Microsoft to comply with the injunction within 60 days and forbids Microsoft from testing, demonstrating, or marketing Word products containing the contested XML feature.” The order allows MS to take two months to appeal, settle, or work around the patent problem.
I wonder whether the injunction would require deauthorizing the sold versions? In addition, with the Blackberry case I think there was a carve out for the government because it relied on the system so much. Given Word’s dominance, I would hope that any court order that might threaten how people use already purchased software considers the impact that would have on millions of people. I am not saying that such a result is in the works or required by the current injunction. But if an injunction requires cutting off support or features, people may find that lose access to their works. Again whether the technology at issue would require such a result is unclear to me. Then again, as I argue in Property, Persona, and Preservation, as we move into a world where software and technology providers can update or cut-off access to one’s creations, such a result is not as impossible as it sounds. Can you say Kindle?
August 12, 2009 at 2:58 pm
Tags: jewelry, Microsoft, MS Word, patent, robbery
Posted in: Criminal Law, Intellectual Property
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Too Much Discretion
posted by Daniel Solove
In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge? Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.
In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion. Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.
President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement. He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.
Should the police have so much power to arrest a person? With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.
And consider this story, from the Chicago Tribune:
Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.
As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.
Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .
A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.
Apparently, the yawn was very loud and disruptive, but jail? Six months? Why not simply kick him out of the courtroom?
Judges have tremendous discretion to issue contempt charges. It is way too much, and there are few limits to reign judges in. The article continues:
August 10, 2009 at 10:09 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure
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The Law Gives Up on Beatty Chadwick
posted by Dave Hoffman
Beatty Chadwick, Post Release
Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation. I opined that:
Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”
So, I guess that Cover needs to be footnoted: “Except when judges blink.” Beatty is out. And his jailers are celebrating:
About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.
“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”
Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts. As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.
But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large. His conduct (as alleged) created a social harm which his ultimate freedom only made worse. As the attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”
July 27, 2009 at 7:36 pm
Posted in: Behavioral Law and Economics, Criminal Law, Family Law, Law and Psychology, Weird
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Twitter Fraud
posted by Danielle Citron
Individuals increasingly use social networking tools to commit fraud. Philadelphia Eagles player Asante Samuel discovered his Twitter imposter after the Philadelphia Daily News attributed to him comments from his doppleganger’s Twitter feed. Keith Olbermann was a victim of Twitter impersonation as was Tony La Russa, manager of the St. Louis Cardinals. Temple professor Susan Jacobson predicts that much like the early days of the Internet when individuals bought the domain names of celebrities to sell it to those notables for a tidy profit, we will likely see variations of such mischief on social networking sites.
Aside from the celebrity context, we may see other misuses of Twitter feeds. Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies. A tweet about a fabricated fire or car accident could cause dangerous traffic jams and needless panic. Someone could impersonate a police department, sending tweets about crimes never committed. This teaches us to be circumspect about all of those Twitter updates.
H/T to Jim Stanton for his blog posting, “Social Media Fraud On the Increase.”
Wikimedia Commons Image
June 10, 2009 at 11:11 am
Posted in: Anonymity, Criminal Law, Culture, Current Events, Cyberlaw, Privacy (Law Enforcement), Technology, Uncategorized
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Bright Ideas: Dan Markel, Jennifer M. Collins and Ethan J. Leib on Privilege or Punish: Criminal Justice and the Challenge of Family Ties
posted by Deven Desai
Today’s Bright Idea comes from Dan Markel, Jennifer M. Collins, and Ethan J. Leib. Dan is the D’Alemberte Professor of Law at Florida State University College of Law and of course blogs at Prawfs. Jennifer is an associate professor of law at Wake Forest University School of Law. Ethan is an associate professor of law at U.C. Hastings College of Law. All three have impressive track records as scholars with articles appearing in the Yale Law Journal, Northwestern University Law Review, Iowa Law Review, Emory Law Journal, and many other excellent publications among them. With such an impressive group behind Privilege or Punish: Criminal Justice and the Challenge of Family Ties, I am quite pleased to present Dan Markel, Jennifer M. Collins, and Ethan J. Leib as they share the shape of their ambitious book. In addition, the essay explains how the project began and evolved. Both parts offer insights well worth the read.
DAN MARKEL, JENNIFER M. COLLINS, and ETHAN J. LIEB
First, we want to thank Deven and the Co-Op crew for the chance to share some thoughts about our book and the story behind its writing. Privilege or Punish: Criminal Justice and the Challenge of Family Ties is a book that tries to answer two basic but under-appreciated questions. First, how does the American criminal justice system (writ large) address a defendant’s family status? And, second, how should a defendant’s family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination?
The Shape of the Book
The descriptive part of the project originally began as a chance to ruminate upon contemporary “Antigone” situations where one’s loyalties to the state stand in tension with one’s loyalties to family members. Think of David Kaczynski, the Unabomber’s brother, or Bernie Madoff’s sons—they all called in the authorities to arrest their family member. But we soon realized the Antigone problem was only one of many sites where the state’s criminal apparatus and family intersected.
Consequently, we sought to survey the various spaces within the criminal justice system in which defendants are either benefited or burdened by virtue of their family status, ties, and/or responsibilities. To give you a sense of the panoply of benefits and burdens, consider just a few: most states give spouses a right to refuse to testify against their spouse in a criminal proceeding and some even permit a spouse to block the testimony of a spouse who is willing to testify; almost twenty states give exemptions or substantial punishment discounts to those harboring a fugitive when that fugitive was a close family member; many states permit or require sentencing discounts to offenders who are parents with care-giving obligations; most states impose duties to rescue, supervise and support children and the breach of those duties renders one eligible for criminal sanction; most states have bigamy and incest laws that render conduct “criminal” that would not otherwise be unlawful but for the family status of the defendant. These are just some of the various “family ties benefits” and “family ties burdens” in our criminal justice system.
Naturally, we weren’t satisfied with merely cataloguing these benefits and burdens. We also wondered how policymakers and courts *should* view these laws. And so we established a framework of analysis for these benefits and burdens, one that was inspired by, but not identical to, the framework used to scrutinize suspect classifications in constitutional law. To sum up our various conclusions crudely, we basically claim that the state should exercise substantial caution and indeed skepticism to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we concluded that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.
Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties burdens and benefits are often expressively denigrating the lives of those who don’t live by the rules of a heterosexist and often repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.
By offering both our descriptive and normative claims, we hope to be doing something different and important. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the variety of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one’s family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that we hope will be of interest to anyone seeking the improvement of our criminal justice system.
Below the fold, we talk a little about how the evolution of our book from idea to reality.
June 9, 2009 at 9:06 am
Tags: Criminal Law, Dan Markel, Ethan Leib, family, Jennifer Collins, privilege or punish
Posted in: Bright Ideas, Criminal Law
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Practical Advice: Don’t Let Your Client Pay You in Guns
posted by Dave Hoffman
Wow. A pharmacist accused of murder decided to pay his lawyer with his firearm collection. When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued. Quick: which amendment gets play? (Hint: it’s not the 2nd!)
“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.
Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.
Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.
Box told the judge he has accepted other unusual payments in the past, including comic books.
The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store. You can see the video here. And as for the constitutional right to withhold information about Ersland’s gun collection? That would be the right against self-incrimination:
District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.
The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.
This advice is generalizable. Take cash over credit, and credit over barter. And never, ever, take the instruments of the crime.
June 1, 2009 at 11:47 am
Posted in: Criminal Law, Criminal Procedure, Current Events, Second Amendment, Weird
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Still Smokin’? Maybe So, Maybe Not: Supreme Court, Medical Marijuana, and California
posted by Deven Desai
So medical marijuana is safe or is it? The Huffington post declared “Supreme Court Hands Medical Marijuana Major Victory,” because the Supreme Court refused to hear a case from San Diego County “arguing that the federal ban on marijuana trumps the state law, meaning they are not required to follow the state law.” Yet, almost simultaneously, Judge Marilyn Patel ruled against alleged medical marijuana grower, Charles Lepp, and sentences him to ten years. Judge Patel’s ruling seems to be based on facts that belie the medical marijuana defense and a religion-based defense. Still, she also said “I have to say I think that amount of time is excessive. But it is not up to me to legislate, it is up to Congress.” Apparently, Judge Patel indicated that she might reconsider the ruling if sentencing laws change.
So here’s a possible safety tip: even if the state law is not pre-empted by federal law, one may want to make sure one is in compliance with the state law. In addition, if it is true that supporters of Lepp yelled, “She’s a criminal! She’s a drug war criminal!” about Judge Patel and “screamed” at Assistant U.S. Attorney David Hall, that his prosecution was tantamount to a war crime so much so that he would be charged, “just like Cheney,” it may be time for the legalize marijuana movement to find some other spokespersons. Although I believe that some or many believe these views, I am not so sure that this tactic wins any converts. Indeed, it probably distances those who may be sympathetic.
Image: cannabis indoor growing
Source: Wikicommons; and DEA
License: Public Domain
May 21, 2009 at 3:06 pm
Tags: Charles Lepp, Judge Marilyn Patel, marijuana
Posted in: Criminal Law, Supreme Court
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Why Do Republicans Want to Give Nancy Pelosi the Pardon Power?
posted by Dave Hoffman
Pardoner of the House?
Is waterboarding torture? Charles Krauthammer argues today that because Nancy Pelosi was briefed about waterboarding in 2003 (after it happened), she blessed it.
“Our jurisprudence has the “reasonable man” standard … On the morality of waterboarding and other ‘torture,’ Pelosi and other senior and expert members of Congress represented their colleagues, and indeed the entire American people, in rendering the reasonable person verdict. What did they do? They gave tacit approval. In fact, according to Goss, they offered encouragement. Given the circumstances, they clearly deemed the interrogations warranted.”
I don’t understand this at all. The recently released Bybee/Yoo memo admits that waterboarding satisfies the predicate act requirement under the US Code -i.e., it is a “threat of imminent death” — an the only questions remaining are (i) what is the intent requirement; and (ii) was the resulting mental harm “prolonged.”
These aren’t moral questions. They are mixed questions of law and fact. Pelosi’s briefing provided her neither enough context nor enough facts to make headway at the definitional problem. That’s important because Pelosi – like all of us – operates on a presumption of government legality. She’s told: we’ve investigated the problem, and we determined that this technique is lawful. By sitting there, she’s at most agreeing to the proposition that if it was lawful, it is moral under certain circumstances. That doesn’t mean that if the behavior was unlawful she would have sanctioned it. For many, a determination of illegality makes a great deal of difference in determinations of morality. That’s why lawyers -and judges- have so much power in society.
But the “reasonable people” on the jury that may try John Yoo or Jay Bybee would have an different task: to determine guilt. They would be told about the known/contested science on the mental harm caused by waterboarding. They would be told facts about the captive’’s pre-existing mental state. They would be told about the number of times the captives were waterboarded, which may bear on what information the agents were really after. And they will be given competing stories about torture’s efficacy. And, finally, they will make a judgment. Not about whether the agent’s behavior was reasonable (that could be a decision in a civil trial, on a qualified immunity pre-trial motion). Rather, the jury will be asked if the prosecution proved the elements of a crime beyond a reasonable doubt. The only way I can see the agent’s reasonableness becoming relevant is if they raise a necessity defense. And I’m not even sure that they could, given the actual facts.
There are many times when the judgments of representatives in Congress can and do substitute for the mass of citizens. But here we’ve got a very specific criminal law which a few individuals may have violated. Maybe we shouldn’t have such a law, and maybe that law ought to be modified to give the President the authority to suspend it given certain findings. But the fact that a few members of Congress heard that we were engaging this activity is legally irrelevant to the agents’ and lawyers’ guilt.
Unless, perhaps, Krauthammer is looking to resuscitatethe good old days, when men were men, women were women, and Speakers were really, really powerful. Maybe he wants to give Pelosi a nudge toward legislative hegemony by usurping some of Obama’s power to pardon. I bet she could live with that.
May 15, 2009 at 8:03 am
Posted in: Constitutional Law, Criminal Law, Culture, Current Events, Politics
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A Right to Be Punished?
posted by Michael Madison
From the Department of Paradoxes in Sporting Jurisprudence:
Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)
As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.
After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.
That prompts this question: Is there a right to be punished? If so, when, and if so, why?
May 12, 2009 at 1:29 pm
Posted in: Civil Procedure, Criminal Law, Criminal Procedure, Current Events, Jurisprudence
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Let Private Lawyers, Not Police, Govern Cellphone Use While Driving
posted by Dave Hoffman
Will Saletan argues that some local government will soon ban possessing cellphones in the car. Shorter Saletan: “first, they came for the train conductors.”
Having just been ticketed by the Cornell police for driving while talking on a cellphone, I’m particular aware of the growth of anti-cellphone laws. (A side note: NY has a bizarre system of indeterminate fines that aren’t reduced to a sum until after you plead guilty to the offense. To the extent that this post is read by a municipal judge in Ithaca, I’d ask for mercy.) But the trend against cellphones should be resisted: we should regulate cellphone-motivated accidents through the private-party negligence regime, not the police-directed traffic liability system.
Deciding which traffic laws to enforce solely through private party lawsuits is a knotty problem, but I think the answer relates to the imposition of strict liability more generally. When an activity is unreasonably dangerous (drunk driving) and has little to no desirable social consequences, we make it unlawful even in the absence of harm to others. By contrast, when an activity has both positive and negative social consequences – like long road trips – we punish negligence (nodding at the wheel) only when leads to an accident.
Is cellphone possession and use so unreasonably dangerous, and so without public benefit, that we ought to treat it like drunk driving? Saletan thinks so, and cites a study that finds drivers equally distracted when drunk as when talking on the phone. (Not equally dangerous, which is what Saletan says the study claims.) And I’ll admit that there’s no reason not to force people to use hands-free devices.
But many things can distract drivers. Should we prohibit passengers? Especially younger ones, who sometimes have the habit of fighting in the back seat? How about radio? I’d be curious to see an experiment that compares people listening to Rush or Stern to those who are drunk. Those guys can really suck you in!
Moreover, cellphone use while driving permits important social benefits. It boosts productivity by decreasing time wasted in traffic. A rule that prohibited cellphone use, instead of forcing drivers to merely internalize the cost of use by making them liable for negligent driving, would chill conduct that we want to encourage. It would also significantly increase the costs of commuting, as individuals will once again have no recourse but to listen to the radio or hum quietly to themselves. So we should instead permit people to hold, and use, cellphones while driving. If they hit another driver or cause damage to another’s property, however, we should treat cellphone use as prima facie evidence of negligence.
May 11, 2009 at 3:25 pm
Posted in: Criminal Law, Economic Analysis of Law, Tort Law
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Solitary Confinement: Possibly Torture, Definitely Hell
posted by Sonja Starr
Thanks very much to Danielle for her kind introduction, and to her and Dan for inviting me to participate in this blog. This is my inaugural blogging experience, and I’m (somewhat nervously) looking forward to it! Let me start with a brief comment on the story on solitary confinement by Atul Gawande in this past week’s New Yorker. Solitary confinement is practiced on quite a large scale in the United States, especially with the rise of supermax prisons over the past ten or twenty years. Gawande argues that solitary confinement essentially destroys prisoners’ brains. Humans are extremely social animals, and absent regular interaction, our minds deteriorate rapidly and to a surprising degree. Among people detained alone for extended periods, depression and misery are universal, and psychotic breaks are fairly common. Many prisoners of war describe solitary confinement as a worse experience than physical torture. Some prisoners more or less recover after return to ordinary prison or to society; others never do. A number of legal scholars have made similar arguments, and in fact the extreme psychological harm done by solitary confinement was recognized over a century ago by the Supreme Court in In re Medley, 134 U.S. 160 (1890).
Gawande’s article’s subtitle asks: “Is this torture?” Let me assume for a moment that Gawande, who pushes the torture comparison in the body of the piece as well, means that as a serious legal question. The question isn’t frivolous. The answer isn’t a categorical “yes,” but it’s probably not a categorical “no” either–it is plausible that some cases of solitary confinement in the U.S. might qualify as torture under international law. The leading formulation, in the Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for certain specified purposes, including punishment. Domestic and international courts have generally interpreted the severity requirement fairly strictly (though not as strictly as some recent US officials have done, to be sure), though certainly the dire picture that Gawande paints suggests that at least some instances of solitary confinement might qualify as severe mental suffering.
April 1, 2009 at 10:43 pm
Posted in: Criminal Law, Criminal Procedure, International & Comparative Law
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