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Category: Criminal Law

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Gabriel Garcia Marquez’s Chronicle of a Death Foretold

Garcia Marquez - Chronicle of a Death ForetoldI am deeply saddened by the passing of Gabriel Garcia Marquez, one of the world’s best contemporary authors. His magical realist style brims with life and zest — and his descriptions are unique and unforgettable. His most famous work is the magisterial One Hundred Years of Solitude, but my personal favorite is Chronicle of a Death Foretold.

I teach this great work in my law and literature class. It is a novella about a murder and its legal consequences that takes place in a small town. What is amazing about the book is that it is quite short — it is really just a long short story — yet unlike most works of its length, it focuses on not just the microcosm of one character but the macrocosm of an entire town, with an enormous array of characters. So much is packed into this short work, and I marvel at how each time I read it I discover interesting new details. The novella reminds me of a Breugel painting, a canvas filled with so much detail, so many interesting things going on.

Chronicle of a Death Foretold begins with one of Garcia Marquez’s signature openings, so gripping and enriched with unexpected details that it is impossible to stop reading:

On the day they were going to kill him, Santiago Nasar got up at five-thirty in the morning to wait for the boat the bishop was coming on. He’d dreamed he was going through a grove of timber trees where a gentle drizzle was falling, and for an instant he was happy in his dream, but when he awoke he felt completely spattered with bird shit.

The book is written by a narrator 27 years after the murder, pieced together by various interviews, memories, and documents. Chronicling memories that have faded, stories that diverge and contradict each other, the narrator writes in part like an investigative journalist piecing together an expose and in part like a detective investigating a crime. The narrative isn’t told in a linear way but in various fragments that are pasted together like a collage.

We know who will be murdered on the first page, and we find out the culprits very early on. And yet, Chronicle of a Death Foretold is a murder mystery. What it shows, as the narrator recreates the final days of Santiago Nasar’s life, is how each and every character played a role in the murder. Some were indifferent, some were too absorbed in their own pursuits to pay much attention, some were vindictive, with hidden malice, and some just didn’t take things seriously. So many are to blame, yet most played but a small part, and others who played larger roles acted in part based on societal pressures.

But beyond the individual characters, the ultimate indictment is against the town itself and its norms. This is a collective crime. We see how norms of race, class, and gender all combine to create a bitter stew, how many characters feel trapped by traditions and beliefs that lead them to act in unsavory ways. The indictment is thorough — the individuals and the very fabric of their society all interact to produce this tragedy.

I teach this work in my law and literature class to show how puny a force the law can be, and how the law can be too myopic in its focus. The law in this story fails to address the roots of what happened; it just focuses on a few branches and ignores most of the tree.

I marvel at this work every time I read it — the beauty of the prose, the vividness of the description, the brevity of the story that has enough detail for a book ten times as long, and the ability to capture a whole town and its culture and values in so many dimensions — without becoming too abstract or didactic.

If you haven’t read this book, I strongly recommend it to you. It is gripping, challenging, fascinating, and insightful. It is a true masterpiece, and can be read in just an afternoon. Often overshadowed by Garcia Marquez’s great novels — One Hundred Years of Solitude and Love in the Time of CholeraChronicle of a Death Foretold, despite its brevity, is as rich and sweeping.

Cross-posted at LinkedIn

Brad A. Greenberg on the Free Flow of Information Act of 2013

Brad A. Greenberg is Intellectual Property Fellow at Columbia Law School’s Kernochan Center for Law, Media and the Arts. He writes primarily about laws that encourage, restrict, or regulate speech and technological development, with an emphasis on legal questions raised by new technologies; it at times draws on his previous career as a newspaper reporter. Recent publications include “Copyright Trolls and Presumptively Fair Uses,” 85 U. Colo. L. Rev. 53 (2014); “The Federal Media Shield Folly,” 91 Wash. U. L. Rev. 437 (2013); and “More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age,” 59 UCLA L. Rev. 1028 (2012). He offers the following thoughts on recent developments in media shield policy: 

At the New York Times’ Sources + Secrets conference Friday, one panel took up a perennially popular piece of legislation among news organizations and industry groups: a so-called media shield law.

Numerous media shield bills have been proposed in the 42 years since the Supreme Court ruled that the Constitution does not protect reporters from being compelled to testify; all proposals have failed. But the Free Flow of Information Act of 2013 appears different. The bill has bipartisan support, the endorsement of President Obama, and has already moved out of Senate committee. It has also been overwhelmingly supported by major news organizations and industry groups – reflected again at Sources + Secrets.

But there are at least three substantial challenges to the bill’s efficacy. Read More

Infinite Punishment

Can a society that pours ever more resources into “guard labor” be truly innovative? It turns out that yes, we can:

Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives. Speaking to Aeon magazine, Dr. Roache said drugs could be developed to distort prisoners’ minds into thinking time was passing more slowly. “There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence,” she said.

Manipulating the subjective experience of punishment used to depend primarily on external factors, like cell size, terms of socialization, or lighting. An emerging pharma-prison complex could bring a whole new level of efficiency to the guard labor sector. Would our courts recognize such a drug as “cruel and unusual?” Considering the terms of confinement now routinely accepted in the American prison system, that’s anyone’s guess.

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Interesting example of prosecutorial discretion

The Philadelphia Inquirer has been fed the goods on a very interesting tale of prosecutorial discretion:

“The Pennsylvania Attorney General’s Office ran an undercover sting operation over three years that captured leading Philadelphia Democrats, including four members of the city’s state House delegation, on tape accepting money, The Inquirer has learned.

Yet no one was charged with a crime.

Prosecutors began the sting in 2010 when Republican Tom Corbett was attorney general. After Democrat Kathleen G. Kane took office in 2013, she shut it down.

In a statement to The Inquirer on Friday, Kane called the investigation poorly conceived, badly managed, and tainted by racism, saying it had targeted African Americans.”

There’s obviously much more here than meets the eye, including a fight between Kane and Frank Fina, who had led the state’s investigation into the Sandusky mess, and a further fight between Kane and much of Pennsylvania’s governing class.  But the details are sordid:

Before Kane ended the investigation, sources familiar with the inquiry said, prosecutors amassed 400 hours of audio and videotape that documented at least four city Democrats taking payments in cash or money orders, and in one case a $2,000 Tiffany bracelet.

Typically, the payments made at any one time were relatively modest – ranging from $500 to $2,000 – but most of those involved accepted multiple payments, people familiar with the investigation said. In some cases, the payments were offered in exchange for votes or contracts, they said.

Sources with knowledge of the sting said the investigation made financial pitches to both Republicans and Democrats, but only Democrats accepted the payments.

In explaining the decision to close the sting investigation without filing charges, Kane said one reason was that prosecutors in the case had issued orders to target “only members of the General Assembly’s Black Caucus” and to ignore “potentially illegal acts by white members of the General Assembly.”

The Inky’s reporting on this case is incredibly deep, even though it seems evidently based in leaks by someone who hates the Attorney General and wants everyone to know it.  Certainly worth reading.

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How to Lie with Rape Statistics: America’s Hidden Rape Crisis

I’m happy to announce that my new article, How to Lie with Rape Statistics: America’s Hidden Rape Crisis, is out and available for download. Normally, I post very early drafts of my scholarship on SSRN, but, because of the sensitivity of the claims made in my article, I withheld it until it was in final form.

The article concerns the nationwide practice of police undercounting rape complaints in official crime statistics creating fictional drops in official violent crime rates. For those that are fans of The Wire, the idea of police gaming published statistics is not a new one. Police departments in Baltimore, New Orleans, Philadelphia, and St. Louis were caught “red-handed” by local media investigations substantially undercounting rape complaints in numbers submitted to the FBI (which are the basis for the widely-reported crime rates across the nation). My study uses a novel statistical technique to identify other cities that likely have significantly undercounted the number of reported incidents of rape. The results indicate that approximately 22% of the 210 studied police departments responsible for populations of at least 100,000 persons have substantial statistical irregularities in their rape data indicating considerable undercounting from 1995 to 2012. Notably, the number of undercounting jurisdictions has increased by over 61% during the eighteen years studied. Correcting the data to remove police undercounting by imputing data from highly correlated murder rates, the study conservatively estimates that 796,213 to 1,145,309 complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 to 2012. Further, the corrected data reveal that the study period includes fifteen to eighteen of the highest rates of rape since tracking of the data began in 1930. Instead of experiencing the widely reported “great decline” in rape, America is in the midst of a hidden rape crisis.

I’ll be posting over the next week or two about the background, methods, and conclusions of my article. I’m hopeful that the study can attract much-needed attention to the continuing difficulty of rape victims being able to find justice in the United States. However, as the truly insane experience of Adrian Schoolcraft illustrates, alleging police undercounting of crimes can cause a substantial backlash with little positive reform.

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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The Long Arm of US Law Enforcement

Joaquin_Guzman-Loera

The front page of today’s NY Times reports on yesterday’s arrest of the notorious drug lord Joaquín Guzmán Loera, aka “El Chapo.” Although the raid was carried out by Mexican forces, the Times reports that they were “aided by information from the United States Drug Enforcement Administration, immigration and customs officials and the United States Marshalls Service . . . .”  It is unclear whether Guzmán will be extradited to the United States.

The raid brings back memories of when the US took a more direct route to capturing fugitives in Mexico: the 1990 capture and transfer to the United States of Humberto Álvarez-Machaín by Mexican nationals at the behest of the US Government. Read More

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Who’s a Pirate?

occupations_pirate

For anyone who served as a faculty advisor or judge for the recent Jessup International Law Moot Court Competition pirates have likely been on your mind because of the issue in this year’s compromis as to whether Oscar de Luz is a pirate.

Pirates are also in the news as well, and not just because of Captain Phillips’ Best Picture nomination. As Milena Sterio writes over at IntLawGrrls, “United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.”

Turning to another piracy case, the opinion in U.S. v. Said makes for fun class discussion when teaching statutory interpretation as part of a Criminal Law course. It turns out neither owning a parrot nor saying “Yarrrr, Matey!” are necessary or sufficient for piracy. So have fun on September 19 each year for “International Talk Like a Pirate Day” without fear of prosecution!

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Sex Offenders in the Farm Bill

Over the last two decades, a great deal of innovation in criminal justice has targeted sex offenders. Registration, community notification, residency restrictions, employment restrictions, post-imprisonment civil commitment, special license plates, marked driver’s licenses, and specific loitering laws are among the various collateral limits that have been discussed and implemented for sex offenders. Generally speaking, these restrictions are applied retrospectively but survive Ex Post Facto Clause challenges because the relevant laws are considered non-punitive.

Thanks to the wonderful Texas criminal justice blog, Grits for Breakfast, I found out that the farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.

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Could Revenge Porn Victims Seek Civil Liability Against Hunter Moore?

Suppose that former revenge porn operator Hunter Moore is convicted of federal crimes of conspiracy to engage in computer hacking. Could individuals whose nude photos appeared on his site next to their home addresses and screenshots of their Facebook profiles sue Moore for intentional infliction of emotional distress and public disclosure of private fact? Probably not, but it’s worth exploring the issue.

The closest case law involves civil penalties provided for under federal criminal law. In M.A. v. Village Voice, a federal district court judge found that Backpage.com enjoyed Section 230 immunity for civil penalties under the child trafficking statute, 18 U.S.C. 2255. Section 2255 allows victims of child trafficking to recover damages from those who had committed or profited from the crimes against them. provides that, “[a]ny person who, while a minor, was a victim of a violation of [criminal statutes concerning child trafficking] and who suffers personal injury as a result of such violation may sue” and “recover actual damages such person sustained.” The representatives of a victim of child trafficking argued that Section 230 immunity was inapplicable because Backpage.com had profited from the plaintiff’s victimization in violation of Section 2255. As the court held, however, Section 2255 was a “civil damages” provision of Title 18, not federal criminal law.

The only remaining question is whether Moore materially contributed to the contested content–nude photos and Facebook screen shots. If so, he could be found liable as a co-developer of the content that often was tantamount to cyber stalking. Of course, the question of liability would remain. Just because a site operator does not enjoy immunity from liability does not mean he would be strictly liable for torts of intentional infliction of emotional distress, for instance. The question would be whether he intentionally inflict emotional distress on particular individuals? Recall that Moore boasted to the press that the more embarrassing and destructive the material, the more money he made. When a reporter told him that revenge porn had driven people to commit suicide, Moore said that he did not want anybody to die, but if it happened, he would be grateful for the publicity and advertising revenue it would generate; “Thank you for the money . . . from all of the traffic, Googling, redirects, and press.” Earlier this year, Moore told Betabeat’s Jessica Roy that he was relaunching his site including not just of people’s Facebook accounts, but their home addresses. “We’re gonna introduce the mapping stuff so you can stalk people,” he told Roy. When talking to Forbes’s Kashmir Hill, Moore backed off his statement, claiming to be drunk, but had tweeted, “I’m putting people’s house info with google earth directions. Life will be amazing.”

More broadly, sites that principally host revenge porn are making a mockery of Section 230. As Citizen Media Law Project’s Sam Bayard explains, a site operator can enjoy the protection of Section 230 while “building a whole business around people saying nasty things about others, and . . . affirmatively choosing not to track user information that would make it possible for an injured person to go after the person directly responsible.” In my book Hate Crimes in Cyberspace, I explore the possibility of Section 230 reform to ensure that the worst actors don’t enjoy immunity. It’s certainly a perverse result that the “Good Samaritan” provision of the Communications Decency Act immunizes from liability sites that solicit and principally host revenge porn and other forms of cyber stalking. More to come in August, when Harvard University Press publishes the book.