Category: Criminal Law

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Crime Statistics and Public Expectations

Before I began work on my article, How to Lie with Rape Statistics, several local newspaper investigations turned up shocking evidence of systemic police undercounting of rape incidents in four cities across the country. In the mid-1990’s, the Philadelphia Inquirer caught the local police gaming the rape statistics sent to the FBI. The city police would regularly classify rape complaints as “investigate persons” without further inquiry. As a result, the city was able to announce lower violent crime rates based upon faulty data. In 2005, the St. Louis Post-Dispatch uncovered similar practices in St. Louis. There, the police used informal memos instead of written complaints to record allegations of rape. These memos were not counted in official crime numbers. The police even pressured victims to sign waiver forms releasing police from any obligation to further investigate their complaints. In 2009, the Times-Picayune and Baltimore Sun found large-scale rape data manipulation in New Orleans and Baltimore. The Baltimore police took advantage of the “unfounded” rule wherein police do not have to count criminal complaints deemed false. However, the department regularly used the category with little or no investigation performed. New Orleans police repeatedly downgraded offenses to crimes that were not counted in official stats.  According to the investigation, over half of New Orleans rape complaints were designated as “Signal 21″ which was a non-criminal category where rape cases went to die.

Why would police engage in such blatant fabrication of crime statistics? The simplest answer is that the unrealistic goals of the public and politicians have left police in a no-win situation. Since the early 1990’s, the country has been in the midst of The Great American Crime Decline. Violent crimes, as tracked through the Uniform Crime Reports, have decreased at record rates throughout this period. And, yet, during that time frame, every Gallup poll except one indicated that the public believed crime actually rose from the previous year. On average, the polls showed that 61% of those surveyed believed that crime had increased from the previous year, 24% believed it had decreased, and 9% thought it had stayed the same. So, even as the FBI, police, and media were reporting record declines in crime, the public actually believed the opposite. In order to meet the unrealistic expectations of the public and their elected politicians, it is little wonder that some police departments resorted to less savory techniques to be able to report a decline in crime in their jurisdictions.

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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!