Archive for the ‘Criminal Law’ Category
posted by Danielle Citron
Professor Sonja B. Starr and Professor M. Marit Rehavi have posted a fascinating new study on SSRN entitled Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker. It presents new empirical research on the effects of United States v. Booker on racial disparity in the federal criminal justice system (including in prosecutorial decision-making). The study challenges current thinking, finding that Booker has reduced –rather than exacerbated — racial disparity. Professor Starr, my brilliant former colleague and faculty member of the University of Michigan Law School, presented this research in August at the Ninth Circuit Judicial Conference and in October at the National Sentencing Policy Institute, another federal judicial conference that also includes the US Sentencing Commission.
posted by Deven Desai
Imagine that your cool CSI, NCIS, Mentalist, (fill in the procedural (as in cop show, not law), detective sees a tattoo on someone, but no face. She wants to know who that person was. Quick! Check the database! Turns out MSU is developing such a thing. The article admits that a nationwide database is not on the immediate horizon, but the FBI and local agencies want it. The piece has some cultural overtones too. The researcher Anil Jain noted that one could ask
“Is this tattoo connected to a gang? Who were the previous individuals who were arrested with the same tattoo and other such information?” Jain said. “And then right away you have some information about this person. You may not know his name – the tattoo is not a unique identifier – but it can narrow down the list of identities for this particular tattoo.”
One can start to see where a person fits, or used to fit, into a social setting. Then again someone may get the tattoo just for kicks. Hmm, maybe intellectual property law will foil this one? Remember the Hangover II and the tattoo suit? I wonder whether the database will face cease and desist letters from alleged copyright and or trademark holders. Or maybe they will support the database so they can enforce their rights!
Seriously, however, I think that the use of tattoos to identify people has an established history. I am not sure whether that is just a claim in books and film. But this project seems to lend credence to the idea that those marks really do follow you forever.
posted by UCLA Law Review
Volume 60, Issue 1 (October 2012)
November 2, 2012 at 7:11 pm Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Evidence Law, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Privacy, Privacy (Medical) Print This Post No Comments
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.
Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.
Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.
October 10, 2012 at 10:30 am Tags: Constitutional Law, Criminal Law, Criminal Procedure, Education, feminism Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Education, Feminism and Gender, Law Rev (Stanford) Print This Post One Comment
posted by Lawrence Cunningham
Should federal prosecutors who settled a tax fraud case with the New York Racing Association back in 2003 (amended in 2005) be kicking themselves? Besides commitments typical of criminal settlement agreements (called deferred prosecution agreements), to improve internal control and governance, this one required the NYRA to continue its best efforts to install gambling machines at the track. It finally did so last year and the results have included the deaths of 21 horses during the winter meet.
Gambling is a controversial topic and New York State politicians had in 2003 just begun a push to expand the kinds of gambling that are legal in the state, starting with video gaming machines at horse racetracks. Why federal prosecutors settling a criminal tax suit should have anything to say about the NYRA’s role in advancing this agenda is not clear. Prosecutors did not explain their reasoning when signing the DPA.
In any event, the NYRA worked earnestly to move its gambling program along amid growing political and legal controversy in the state over gambling. It finally prevailed, opening a gambling emporium at the Aqueduct track in Queens in October 2011. In the ensuing season, an astonishingly high number of horses — 21 — died while racing.
In March, Governor Andrew Cuomo formed a task force to investigate and in May took state control over the track from the NYRA. The task force released its report last week identifying numerous causes for the deaths and prescribing extensive reforms of the NYRA and Aqueduct operations. Among the culprits: casino funding was allocated to massively increase awards to owners of winning horses in lower-level claiming races. Read the rest of this post »
posted by Frank Pasquale
I was recently listening to a podcast by Carolyn Nordstrom of her 2008 Franke Lecture in the Humanities, Emergent(cies). Nordstrom discusses the extraordinary power wielded by those in control of an underground economy of weapons, drugs, and human trafficking. Paul Farmer attested to Nordstrom’s extraordinary dedication to ferreting out the transactions that knit together so many imperiled and privileged lives. I look forward to reading her book Global Outlaws. This excerpt describes her aims in it:
I am interested in the intersections of crime, finance, and power in activities that produce something of value: monetary, social, and cultural capital, power, patronage, survival. . . . Public media focus on . . . aggressive individuals under the sensational banner of “crime,” yet this interpersonal violence constitutes a small percentage of the universe of criminal actions. Smuggling cigarettes brings in far greater profits and economic repercussions. Robbing an entire country or controlling a transnational profiteering empire is the gold standard of crime.
Must Read: Professor Amanda Pustilnik’s “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law”
posted by Danielle Citron
At Jotwell, Professor Angela Harris has a spot-on review of my colleague Amanda Pustilnik’s superb article Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, 97 Cornell L. Rev. 801 (2012). In “The Pain of Others,” Professor Harris writes:
As Pustilnik explains, advances in neuroimaging techniques, including the fMRI and the positron emission tomography (PET) scan, have made pain objective, rendering obsolete Elaine Scarry’s famous declaration that pain is simultaneously the thing most existentially real (to the sufferer) and most existentially in doubt (to the observer). Observers can now look at the various areas of the brain activated by acute pain and tell, with relative certainty, whether the subject is experiencing pain or not. If fMRI measurements are repeated over time with various levels of stimulus, it should also be possible to tell what degree of pain the subject is experiencing.
These developments could, in theory, revolutionize a number of areas of law and policy. Pustilnik discusses two. First, in many states, homicide by means of “torture” – usually defined as the intentional infliction of “extreme” pain — is one basis for a first-degree murder charge. Could a defense attorney someday submit evidence that the pain caused the victim was not “extreme” enough to constitute torture? Could a prosecutor respond with fMRI evidence about the kind of pain experienced by the average (reasonable?) person in the defendant’s situation?
Second, Pustilnik suggests that neuroscientific evidence could be mobilized in order to draw the line between permissible and impermissible interrogation techniques. Many efforts to define torture in international conventions – as well as, Pustilnik notes, the infamous Bybee Memo justifying torture by U.S. officials in the detention center in Guantanamo Bay – turn on degrees of pain inflicted. Could science help set an objective standard for nations and their interrogators to abide by?
Ethicists fearing future unemployment will breathe a sigh of relief that Pustilnik’s answer is “no.” What’s so satisfying about her argument, however, is not her conclusion that ethics still matter, but the way in which Pustilnik uses these neuroscientific advances as a way to explore the moral import of pain and, more generally, the significance of the body to moral and ethical judgments. . . .
In recent years, neuroscience and cognitive science have appeared to be laying siege to substantive criminal law. New developments in science and technology are poised to help lawyers and their experts predict wrongdoing, assess the responsibility of juveniles, assess culpability, distinguish lies from truth on the witness stand, and decode memories – not to mention helping the police detect illegal activity from afar. At the same time, Stephen Morse has noted in a droll formulation, the excitement generated by new scientific discoveries can lead to “Brain Overclaim Syndrome.” Rather than seeing a competition between science and ethics or technology and law and weighing in on one side or the other, Pustilnik uses our increasing ability to see and manipulate the workings of the body as an occasion to deepen our insight into the links between body and mind, objective and subjective. The dimensions of the physical and the social, she shows, are the double strands of morality’s DNA. Criminal law necessarily must grapple with both.
posted by Kyle Graham
I collect old police manuals, mostly because I like to see what police were directed to do before the exclusionary rule came into the picture. I also enjoy reading the lists of crimes that appear in some of these guides. Are these lists as interesting as the “Mad Men” / Rick Astley mash-up? No. But I take what I can get.
Some of these crimes are still with us; others have vanished from courtrooms in the intervening years. Though that doesn’t necessarily mean they’re off the books; here in California, for example, it’s still a misdemeanor (as it has been since 1872) to kill, wound, or trap any bird within a cemetery, or to destroy any bird’s nest within a cemetery — except, of course, for swallows’ nests, which are specifically exempted by the pertinent statute (Penal Code 598). (Thinking.) Nope, I can’t say that I recall ever invoking this law back when I was a deputy D.A.
One police manual in my collection, M.J. Delahanty’s The Policeman’s Legal Digest, offers an interesting list of crimes that were on the books in circa-1934 New York. In addition to murder, manslaughter, rape, robbery, burglary, theft, and other longtime staples of the criminal docket, the Digest also told officers that they should stay on the lookout for many other crimes that no longer weigh heavily on the minds of most New Yorkers.
For each crime listed in the Digest, the manual identifies the essential elements of the offense (often in a somewhat confusing flowchart manner), as well as the section of the Penal Law or other New York code that relates the crime. Some of the more exotic — by modern standards — crimes related in the Digest are (the list goes on, and on, after the jump):
Compulsory Prostitution of Wife (Penal Law sec. 1090)
Adultery (PL 100)
Compelling a Woman to Marry (PL 532)
Seduction (PL 2175)
Immoral Plays and Exhibitions (PL 1140-A)
Wayward Minor (C.Cr.P 913-A)
Abortion (PL 80)
Self-Abortion (PL 81)
Manufacturing or Selling (miscarriage) Instruments (PL 82)
posted by Kyle Graham
What’s the most difficult federal crime to prove at trial? A little while ago, I tried to answer this question by running a series of inquiries in a database that I’ve put together. This database relates the charge-level disposition of all federal court cases that terminated between October 2002 and September 2009. By framing the proper queries, I can tease out data that, while far from perfect, suggests answers to questions like the one above. (Among the limitations of the data, the database only lists the five most serious charges in each case, and I’ve spotted some inputting errors by court personnel.)
Anyway, take a guess. I’ll give you an answer after the jump.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:
Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.
Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.
Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.
September 13, 2012 at 10:00 am Tags: Civil Rights, Courts, criminal justice, Criminal Law, Criminal Procedure, guantanamo bay, military commissions, security, War on Terror Posted in: Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Law Rev (Stanford), Military Law, Politics Print This Post No Comments
posted by Dave Hoffman
The always blunt Scott Greenfield writes:
“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all. Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.
It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so. There is a shortage of criminal defendants who can afford to pay for a lawyer. Sure, there are some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .
[snipping some typical anti-law school commentary...]
The fact is that the vast majority of criminal defense lawyers are starving. Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn. Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free. The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”
I don’t know if the trend that Scott describes is local (NY) or national. (The students I know in criminal practice are either PDs or too fresh to know the regional market well.) If it is a national trend, it’s disturbing. Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime. Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data. The decline in BigLaw results from outsourcing, client-billing pressure, and digitization. None of that is present here. What’s going on? Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?
Knowledgeable and signed comments will be welcome.
posted by Deven Desai
Reliance on science for legal arguments not only rhymes but has a side-effect. Once science changes what we know or can do, the old argument whithers. Medical marijuana shows this point. Assuming one agrees that there is a medically sound reason to prescribe marijuana for pain and other ailments, the medical marijuana movement has some traction. Get high; get better. But what happens to all those collectives and the people who want to get high, well to get high, when someone finds a way get the medicinal effect without the high? As Wired reports, pot’s “palliative properties appear to come from a substance called cannabidiol (CBD), which some research has shown to have anti-inflammatory advantages. CBD is non-psychoactive, meaning it barely binds with the brain’s receptors. As a result, people can ingest it without getting high.” Thus treatments for “chronic pain, multiple sclerosis, glaucoma, and to stimulate the appetite of patients undergoing chemotherapy” could be had if someone isolated the CBD part but reduced the THC which gets people high. Turns out Tikun Olam in Israel is doing just that.
Lesson: Yes, you may need a theory plus facts to justify your arguments. If medical marijuana is about helping people with the ailments above they should embrace the new strain. If there are other ailments only THC can address, that will fuel the movement too. But if the whole thing is about saying let folks get high because they disagree with current drug policy, it is time to rally the non-medicine-based arguments.
posted by UCLA Law Review
Volume 59, Issue 6 (August 2012)
|From Private Violence to Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control||Kimberlé W. Crenshaw||1418|
|Prison, Foster Care, and the Systemic Punishment of Black Mothers||Dorothy E. Roberts||1474|
|Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System||Jyoti Nanda||1502|
|The New Racially Restrictive Covenant: Race, Welfare, and the Policing of Black Women in Subsidized Housing||Priscilla A. Ocen||1540|
|Justice for Girls: Are We Making Progress?||Francine T. Sherman||1584|
|Engendering Rape||Kim Shayo Buchanan||1630|
|Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions With Men and Boys in Custody||Brenda V. Smith||1690|
|“In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights||George Lipsitz||1746|
|Unlocking the Gates of Desolation Row||Sara Taylor||1810|
posted by Lawrence Cunningham
In the field of corporate criminal liability, no subject is hotter than deferred prosecution agreements (DPAs). In these, prosecutors agree with target corporations to defer or refrain from prosecution in exchange for the target admitting allegations and committing to various reforms. Reforms invariably include enhanced internal compliance programs, and sometimes top-level governance changes. Terms provide that if the government determines that the corporation breached, it can prosecute. Given the admissions, conviction then is almost certain.
Several rationales support these functional settlement agreements. These include avoiding the risk of collateral consequences of corporate convictions (such as customer defection and investor withdraws that could ruin a firm, as happened with Arthur Andersen in 2005). They may also be valuable alternatives to straight-up criminal convictions or civil regulation when investigations give prosecutors firm-specific information about corporate defects that the agreements can cure. There are thus both public law enforcement (deterrence) rationales and private corporate rationales (reducing agency costs when managers act against the interests of shareholders).
DPAs are age-old devices but have become popular in the US only the past decade: only a couple dozen were ever used before 2003, but nearly 200 have been formed since. This summer alone, federal prosecutors around the country have entered into a dozen of them with various corporate targets. England is now considering whether to follow this American development.
Many open questions exist. For example, suppose a company breaches the agreement, as Wright Medical was alleged to have done this week. The contracts state the rights of prosecutors clearly–they may proceed with prosecution. Many contracts, including the Wright Medical deal, are silent on another question: are there any third party beneficiaries as a matter of contract law? Are shareholders intended third party beneficaries of DPAs? The issue is the government’s intention in exacting the corporation’s promise. If the rationale is general deterrence, probably not; but if the rationale is reducing agency costs, probably so. Any opinions?
posted by Frank Pasquale
The Penn State scandal has become ever more shocking with each new revelation. My colleague Kathleen Boozang argues that it is time for higher ed to learn from other large enterprises about the importance of compliance:
It appears that even now, Penn State lacks a compliance program, the creation of which Special Investigative Counsel Freeh’s Report recommends. Previously limited to financial fraud and HR issues, a June 21, 2012 posting by Penn State’s internal auditor announces a poster redesign advertising its hotline number, to which any ethical or legal concerns can now be reported. Important will be training throughout the university regarding the law’s protection of whistleblowers, about which, according to Freeh’s Report, top university leaders were unaware.
While it is stunning that, even now, Penn State has not advanced further in setting up these protective measures, it is fair to say that much of higher ed has been slow to adopt compliance best practices common to the healthcare sector and most business entities.
In related news, the Institute of Internal Auditors met in Boston last week. It looks like they will need to play an increasing role in the higher education setting, especially if internal compliance methods are not mere “rituals of verification.”
posted by Frank Pasquale
It’s fashionable for some finance experts to dismiss reporters like Matt Taibbi as hyperbolic. How dare he compare a muni bond rigging scandal to Mafia tactics? But the more one digs into high finance’s behavior, the clearer a pattern of criminality and recklessness emerges. Taibbi was on a cordial and enlightening panel with Gillian Tett back in 2009, and if any finance reporter’s work is considered impeccable by the establishment, it is hers. Consider her perspective on the latest outrage regarding the setting of Libor:
Five long years ago, I first started trying to expose the darker underbelly of the Libor market. . . .At the time, this sparked furious criticism from the British Bankers’ Association, as well as big banks such as Barclays; the word “scaremongering” was used. But now we know that, amid the blustering from the BBA, the reality was worse than we thought. As emails released by the UK Financial Services Authority show, some Barclays traders were engaged in a constant and pervasive attempt to rig the Libor market from 2006 on, with the encouragement of more senior managers. And the British bank may not have been alone.
posted by Peter Swire
At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.” Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125. Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.
Swindling/selling. The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.” Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.” See? The exchange is identical – Bob hands Alice money. The difference is sociological (what society values) and economic (can Bob resell the item). But the structure of the transaction is the same.
Bribing/contributing. So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Again, the structure of the transaction is identical. There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.
Extorting/taxing. Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice. The difference here? Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing). In the modern government, Alice hires Bob, and Bob sends the payment to the IRS. The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.
For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting). Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.
I am wondering, did people know this already? Are there citations to previous works that explain all of this? Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?
posted by Lawrence Cunningham
Debate has intensified concerning the role of criminal liability for organizations such as corporations, under the guise of having “prosecutors in the boardroom.” Issues include how prosecutors interact with boards in ferreting out wrongdoing and targeting employees. Topics extend to whether the terms of deferred prosecution agreements should include particular corporate governance changes.
Heard about less often in this debate is the role of politics in prosecutorial decision-making. True, the relative appeal of “prosecutors in the boardroom” may not depend on whether any given prosecutor’s incentives include aspirations for higher office. But there are many instances in which it is clear that prosecutorial political ambitions are tied to prosecutorial excesses: Eliot Spitzer is perhaps the poster child for this problem.
As a result, when scholars of corporate governance or corporate criminal liability debate the role of prosecutors in the boardroom, it may be worth paying specific attention to tools that can reduce the role of politics in prosecutorial conduct. After all, a sense of proportion can be promoted by neutralizing the political incentives prosecutors sometimes have.
States with elected attorneys general—the vast majority today, including Spitzer’s New York—could follow the lead of the few with laws discouraging prosecutors from engaging in political activity. The chief alternatives are barring an attorney general from running for higher office while serving as the state’s chief prosecutor (called “resign-to-run” laws) or requiring an attorney general to wait two to four years after leaving that office to run for a higher one (a “cooling-off period” approach).
Opponents of such restrictions object that these impair the officials’ rights of free speech and impinge on democratic traditions allowing the electorate to choose from among a broad field of candidates. But resign-to-run laws meet those objections, putting the prosecutor to a simple choice, and even the cooling-off period is a modest eligibility limitation, not adding qualifications to run for office. The restrictions are common in codes of judicial ethics which have been upheld against constitutional challenge; they are modest compared to those contained in more sweeping federal legislation such as the Hatch Act, which prohibits federal and state employees from running for elected office.
Are these points valid? Should corporate/criminal law scholars look at the role of politics in prosecutions; is that role a significant factor in the risk of prosecutorial excess; are such laws helpful to address that factor; are the laws legitimate?
posted by Danielle Citron
The judge handed down the sentence in the Dahrun Ravi case today. For his conviction on witness- and evidence-tampering and lying to the police, Ravi will serve 30 days in jail. For the hate crimes charge and sentence enhancement, Ravi was sentenced to three years’ probation, 300 hours of community service, counseling on cyber bullying and alternative lifestyles, and payment of $11,000 to a group that helps victims of bias crimes. The judge included a recommendation to immigration authorities that the defendant, an Indian citizen who came to the United States as a child, not be deported. The judge made fairly clear his thinking. Before announcing the sentence, the judge said that he did not believe that the defendant hated Tyler Clementi but rather that he “acted out of colossal insensitivity.” To the defendant, the judge said: “You lied to your roommate who placed his trust in you without any conditions, and you violated it. I haven’t heard you apologize once.” He emphasized the defendant’s attempt to “corrupt the justice system” by tampering with evidence and witnesses. The judge explained that he took factors including Ravi’s youth and his lack of a criminal record into consideration.
Before the sentencing, many (including me) worried about a sentence that straddled the extremes. An unduly harsh sentence might produce a backlash against using hate crime laws in instances of bigoted online harassment (including threats, privacy invasions, etc.) while an unduly light sentence would trivialize what happened to the victim, the public shaming of his sexuality and bias intimidation. We have fallen into the latter zone. The defendant received a sentence of probation and counseling on the hate crime that he thrice rejected in plea offerings by the prosecutor. To make matters worse, the judge repudiated the jury’s conviction on the hate crime count when he characterized the defendant as insensitive, not bigoted. Even so, all is not lost. The sentence and conviction do say something important. They make clear that engaging in online harassment and shaming of individuals from traditionally subordinated groups has a cost. The sentence is not something to shrug at: the defendant has a criminal record for a hate crime with three years’ probation (even though he might have been sentenced to far more than that, ten years). To young people interested in bright futures, this is worth avoiding. Viewed at a distance, the case teaches us that juries will take similar cases seriously. It does not and should not say that such cases are easy and uncomplicated. They are hard and deservedly belong in the public eye. That this case made it into court with a conviction makes a difference.
posted by Frank Pasquale
Christopher Glazek’s article “Raise the Crime Rate” challenges recent estimates of crime levels in the US. According to Glazek, crime “has not fallen in the United States;” rather, “it’s been shifted. . . .away from urban centers” and into “a proliferating web of hyperhells.” If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the “unbelievable brutality unleashed on kids in for-profit prisons.” Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:
Under a practice known as “the Program,” guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.
These revelations are among many that vindicate Mike Konczal’s important essay “Against Law, For Order.” Konczal argues that the latter half of the “law and order” slogan has proven far more important in recent decades than the former:
“Law and order” isn’t just the rallying cry of Southern traditionalists[;] it also forms a core of the neoconservative governance project. Take the influential 1982 Atlantic Monthly essay “Broken Windows” by the neoconservative thinker James Q. Wilson. . . . For Wilson, society took a wrong turn when it viewed the ideal role of policing as detectives solving a crime or a system following clear rules agreed on in advance. The real purpose of the policeman was to preserve order, pushing the limits of his or her authority in an improvisational, eternal combat against an almost self-conscious disorder. . . . The concept of the night watchman is re-purposed: instead of the quiet, passive night watchman looking over the rules of property and law, the government is active, participating, constantly at war with disorder, pushing the laws against its constraints to save the system.
Of course, the ultimate victory in such an ideological struggle is to get rid of nearly all legal constraints on the watchman, as the Supreme Court recently did in a range of situations relating to strip searches after an arrest. As Bernard Harcourt has observed, the Court’s concerns with liberty and due process are minimal in that context:
[The Court] allow[s] federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy’s view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.
As Aaron Bady observes, “the decision accepts the proposition that the rights you have — that the state must obey — don’t need to wait for some juridical process to determine that you’ve forfeited them, that your actions or your situation require a suspension of your default status as rights-bearing citizen.” The ultimate rationale for that position is in turn economic, Bady argues: when the Court calls alternatives unworkable, it essentially laments that protecting liberty is too expensive. It also expresses its profound lack of interest in developing a jurisprudence that might carve out certain basic safeguards for the arrested—a view shared by President Obama’s DOJ.
When administrative discretion trumps legal regularity, the usual rationale is either scientific or political. Only the latter appears relevant here; the triumphs of order over law proceed apace with scant empirical backing. As Glenn Loury has said of Wilson’s approach, “there is little evidence beyond the anecdotal to show that such ‘quality of life’ policing actually leads to lower crime,” however reliably it reinforces “racial stigmata associated with the institutions of confinement, surveillance, and patrol.” Justice Breyer’s dissent in the strip search case offers a litany of studies with a simple message: basing strip searches on “individualized reasonable suspicion” would do virtually nothing to undermine the penological and public safety goals that are the ostensible basis of the blanket discretion endorsed by the majority.
Without scientific basis, it is pure political power that explains the repeated triumphs of order over law. The closest most of us will come to arbitrary police authority is the TSA—an agency whose wide discretion appears to be strongly supported by the majority of Americans who don’t fly much. Until a majority of Americans is directly affected by imprisonment or strip searches, I expect few of the problems mentioned above to abate, or even to be addressed.