Category: Criminal Law

4

Alito’s First Death Decision

Alitocollege.jpgSam Alito’s first SCOTUS opinion arrived yesterday and – if you see the world through Cass colored glasses – it’s a liberal one: the defendant won. The issue in Holmes v. South Carolina was whether:

a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The trial court excluded evidence suggesting that a third party had confessed to killing 86 year old Mary Stewart. Why? On the grounds that the evidence against the defendant was so powerful that any evidence implicating the third party could not raise a reasonable inference that the defendant was innocent. To put it another way, the case against Holmes was so good that the state was allowed to exclude evidence that another guy did it. No need to bother the jury with messy details. The South Carolina Supremes thought this was a fine idea as well.

This didn’t look like a hard case to me and the 9-0 vote thankfully confirmed that feeling. If a defendant possesses reasonably relevant evidence on the issue of guilt, we generally let the jury hear it. When, as here, a judge keeps this information from the jury, he or she effectively decides the outcome of a case. In rejecting this policy as unconstitutional, Justices Alito and Roberts proved that whatever their ultimate ideological place on the Court, they are not completely off the deep edge.

More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes’ capital sentence after his first trial? Perhaps he didn’t want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn’t want the case framed as a “death decision” – with all the attendant baggage – and instead cast it as a plain old evidence ruling.

This is a small detail to be sure, but Alito surely knew his first opinion would go under a microscope. The odds are that this omission was not strategic. But if it was, I certainly hope that it does not portend a broader willingness to omit uncomfortable facts.

5

When Is A Sex Worker A Victim?

In a recent story out of Richmond, a woman – Barbara Tanner, a 52 year old – who operated an escort service was sentenced to 41 months in federal prison. The interesting hook, noted by Doug Berman, is that the court treated each of the women who worked for her as a “victim” for sentencing purposes. This hoisted her sentencing guideline range from 24-30 months to 41-51 months. As a matter of guideline interpretation, perhaps this makes sense. Section 2G1.1 defines a victim as:

a person transported, persuaded, induced, enticed, or coerced to engage in, or travel for the purpose of engaging in, a commercial sex act or prohibited sexual conduct, whether or not the person consented to the commercial sex act or prohibited sexual conduct. Accordingly, “victim” may include an undercover law enforcement officer.

Perhaps this is just a matter of nomenclature, but is this a fair definition of “victim”? While some sex workers are surely victims, others have chosen this work – admittedly under many of the stresses that propel other individuals towards sub-optimal life choices. Is a sex worker necessarily any greater victim than a coal miner or a worker in a meat processing plant? Would a sex worker who was working on her own, rather than for a madame, be able to claim victimhood as well? If not, why is he or she converted to victim status upon taking a position with Ms. Tanner’s agency? (And what would the IUSW – International Union of Sex Workers – say about this?)

The guidelines commission is within bounds when it makes Ms. Tanner’s sentence depend on the size of her operation. But does it make sense to frame the sentence on the number of people “victimized”? To the degree that those who promote commercial prostitution create unwilling sex workers, they are doing serious harm. And maybe we consider larger prostitution schemes more dangerous because they have the potential to increase coerced prostitution. But my sense is that, with such a broad definition of “victim”, the sentencing commission is mostly dressing up morality legislation in public safety clothing.

If you want to send Ms. Tanner to the pokey for sin, go for it, but don’t assume that all of her employees were necessarily victims. Maybe they were just sinners as well.

2

Karl Rove is the Subject of this Blog Post

Robert Luskin, Karl Rove’s lawyer, released the following statement after Rove’s appearance today before the Plame grand jury:

Karl Rove appeared today before the grand jury investigating the disclosure of a CIA agent’s identity. He testified voluntarily and unconditionally at the request of special counsel Patrick Fitzgerald to explore a matter raised since Mr. Rove’s last appearance in October 2005. In connection with this appearance, the special counsel has advised Mr. Rove that he is not a target of the investigation. Mr. Fitzgerald has affirmed that he has made no decisions regarding charges. At the request of the special counsel, Mr. Rove will not discuss the substance of his testimony. (H/T: The Corner)

This isn’t the first time that Luskin has made this claim. But the news media still aren’t really digging into what this means.

Being “not a target” is a good thing for Rove. But it would be better if he were “not a subject” of the grand jury’s inquiry either, and the failure of the Special Prosecutor to say so means that KR remains in some (unknown) amount of legal jeopardy. The distinction between these two concepts has been usefully discussed on Talkleft: for a recent post see here. Before today’s appearance, there was a rumor that Fitzgerald sent Rove a target letter. Either that rumor was false, or Luskin will some day have some explaining to do. I’m betting on the former. Because it would be frankly shocking were Rove to have testified before the Grand Jury after receiving a target letter. I’m not saying it couldn’t have happened under some immunity agreement that hasn’t surfaced, but it is exceedingly unlikely.

6

Reefer Madness At The FDA

marijuana-leaf.jpgOne of the most troubling behaviors of the current administration is its repeated willingness to manipulate the distribution of empirical data with which it disagrees. From global warming to crime, the government seems more interested in promoting its policy preferences than transparently reporting the results of the research it performs or supports. The administration has a legitimate right to advocate for its positions. But if it wants to argue that marijuana ought to be illegal, as the FDA did last week in its Inter-Agency Advisory Regarding Claims That Smoked Marijuana Is A Medicine, it seems to me the better policy – both from an honesty and a credibility point of view – is to concede the facts that cut against you, and make your case anyway. In its press release last week, the FDA asserted that:

A past evaluation by several Department of Health and Human Services (HHS) agencies, including the Food and Drug Administration (FDA), Substance Abuse and Mental Health Services Administration (SAMHSA) and National Institute for Drug Abuse (NIDA), concluded that no sound scientific studies supported medical use of marijuana for treatment in the United States.

True as this may be, a 1999 review of studies by the National Institute of Medicine suggests that marijuana offers potential therapeutic value for pain relief, control of nausea and vomiting, and appetite stimulation. Also, it notes that “until a non-smoked, rapid-onset cannabanoid drug delivery system becomes available…there is no clear alternative” to smoking. Why can’t the administration concede the existence of this data review by another federal agency?

It seems to me that the administration is driven by a decision, ex ante, that marijuana ought to be illegal. If it were truly interested in investigating the utility of the drug, it wouldn’t make serious research into its value exceedingly difficult. So the federal government ignores data suggesting the value of marijuana. It makes it hard to generate more research on marijuana. And it is therefore able to rail against the many states that have legalized marijuana for medical purposes. There are reasons to believe that, if the government allowed the debate to flourish – by sharing data that does exist and promoting the production of new data – its position might become weaker. But if marijuana is in fact effective as a medicine, perhaps the FDA should legalize it. And if the government’s real argument is something other than efficacy – that it is very likely to be misued, for example, or that its increased availability will lead to a rise in DUI cases – then it should make that case instead.

In some respects, this approach to policy debate reminds me of an argument made by death penalty opponents who argue that the death penalty is bad policy because it is expensive. But why is it expensive? Because opponents litigate these cases very aggressively. There are many good reasons why some people may oppose the death penalty. But it seems to me that when the people complaining about the cost of capital punishment are the people generating this expense, one should at least be skeptical. I’m not denying that the expense argument might mask a a deeper claim: perhaps these cases are so expensive, and require so many appeals, because the state fails to provide excellent counsel in the first instance. But if this is true, wouldn’t a more logical solution to the cost problem be a requirement that states spend money on quality counsel up front, to save in the long haul? In the end, the real claim underneath cost is fairness: the quality of a person’s lawyer should not determine whether he receives a death sentence. That may not “sell” as well to certain voters, but it is the more honest argument.

As for reefer, when government is making the arguments, I think we have a right to expect honesty. The FDA’s dubious pronouncement appears driven primarily by the administration’s emotional hatred of marijuana. Personally, I’d prefer FDA decisions to be grounded in evidence-based research rather than simply madness.

13

Drunk at Duke

By now we all know that an African-American women, hired to strip at a Duke men’s lacrosse party, has accused three white players of kidnapping, strangling, and raping her on May 14, 2006. The Durham district attorney recently secured two indictments in the case, and indicated that a third may be forthcoming. The case is troubling for many reasons. I’ll probably write about a couple of different aspects of the case over the next week, but today I’d like to focus on the issue of alcohol. I’m particularly interested in how intoxication—of the men and the woman on the night in question—will be interpreted.

The initial description of the Duke case included the allegation that the players had already been drinking at the party before the dancers arrived. They may not have been the only ones. On April 10, defense attorney Bill Thomas said that time-stamped photographs would prove that the woman was already drunk herself upon coming to the party. To explain her injuries, Thomas said, “This young lady was substantially impaired. She had fallen several times during the course of the evening.”

How will intoxication of the parties affect an assessment of blame? Studies on the issue are fascinating. In a 1982 study (Richardson & Campbell, The Effect of Alcohol on Attributions of Blame for Rape, 8 Per. Soc. Psychol. Bull. 468 (1982)), participants read a story about a college student raped at a party. Some students read a story in which the attacker was drunk and some read a story in which the victim was drunk. The male attacker was held less responsible for the rape when he was intoxicated than when he was sober. By contrast, the female victim was held more responsible when she was intoxicated than when she was sober.

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7

Why The Right To Choose Counsel Matters

Today the Supreme Court will hear argument in the case United States v. Gonzalez-Lopez. SCOTUS Blog has a nice summary of the issues here. The case involves a criminal defendant who, for various reasons related primarily to guild protection, was denied the chance to be represented by the attorney of his choice. The U.S. takes the position that even though this may have violated the defendant’s Sixth Amendment rights, he should lose his appeal unless the attorney he didn’t want was “ineffective”. The problem is that the Strickland v. Washington definition of ineffectiveness, as it has evolved, misses some core aspects of criminal lawyering. One of the critical problems with the Strickland analysis is its focus on strategic moves: trial skills, evidentiary choices, objections, and the like. Admittedly, the Court has begun to take seriously the importance of pretrial investigation in capital cases. Yet the attorney-client relationship – that (hopefully) large bundle of time and joint effort that occurs before trial – receives short shrift. And it often has at least as large an effect on overall case outcome. An attorney who successfully builds trust with her client can do a much better job for him. And a client’s decision to hire a particular attorney is a good first step in that process.

First, there is the matter of plea bargaining. While plea bargains are usually available in criminal cases, they almost always require a modicum of attorney-client trust. Why? First, if the deal requires a defendant to cooperate with the goverment, the defendant must trust the lawyer to handle this sometimes dangerous transaction properly. Second, when a deal is available, many defendants will not accept it if they think their attorney has negotiated inadequately or, worse, is in league with the prosecution. The higher the stakes in the case – when a defendant is facing decades in jail, for example – the more a defendant must trust his lawyer.

There is also the matter of trial preparation. Defendants often have a great deal of knowledge that can help secure a better deal, or result in a better trial outcome. They know witnesses. They know the facts of their own crimes. They know their own personal history. But defendants are often reticent about sharing this information with lawyers they don’t trust.

Finally, there is the trial itself and, particularly, a defendant’s decision whether to testify. Defendants often want to tell their story. Defense lawyers often want them to remain silent. This decision ultimately rests with the defendant. If he doesn’t trust his lawyer, he is less likely to listen to her advice.

When a person selects his own counsel, he is taking the first step toward building a valuable relatioinship with his attorney. When that process is disrupted by courts, it will inevitably have real consequences. Even if the “show” looks identical – the cross-examination is great and the closing sublime – the process will have changed, and quite possibly for the worse. In recent years, the Court has sometimes shown a greater appreciation for the complex task of criminal lawyering. I hope that their decision in Gonzalez-Lopez reflects sensitivity to the fact that lawyers are simply not fungible.

3

The Federal Bias In Criminal Law Scholarship

feds_193702.jpg

John Pfaff has an interesting post up at Empirical Legal Studies Blog entitled Federalism and Empirical Legal Research. In it he asks why there appears to a skew towards analysis of federal law among empirical researchers of criminal law. He ultimately boils his questions down to these:

1. Do we focus “too much” on federal outcomes?

2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people’s lives?

3. If so, how can we rectify this? In particular, if it’s a problem of data availability, how can we get the numbers we actually need?

In my view, we do focus too much on federal courts. Most cases – and prisoners – are in state systems. And states really are different. The employees are different because state criminal jobs often involve less training and lower salaries than comparable federal positions. State facilities are often in much poorer condition. State sentencing schemes vary widely from state to state, and often look little like federal provisions. And because most state prosecutors and judges stand for election, they operate under a different set of professional pressures. I would expect these differences have substantial effects on case processing and outcome.

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5

A Defining Opinion On Federal Criminal Sentencing

Doug Berman has pointed out a truly engaging sentencing opinion out of the Northern District of Iowa. The case, U.S. v. Saenz, involved a downward departure from the federal sentencing guidelines for a defendant who provided “substantial assistance” to the government. After Kim Saenz entered a plea of guilty to a drug crime, and in light of her genuinely substantial assistance to prosecutors, Judge Mark Bennett gave the defendant a 68% reduction in sentence. Thus, Ms. Saenz received a term of 20 months for her role in the distribution of marijuana. The Eighth Circuit slapped down Bennett’s ruling, holding that this downward departure from the (no longer binding) federal sentencing guidelines was “unreasonable and excessive.” In particular, the Circuit indicated that a downward departure of 50% for substantial assistance was inherently “extraordinary.” It appears that several of the Judge’s recent sentencing decisions have been remanded on the grounds of excessive leniency.

Judge Bennett’s decision was all about redefinition. He redefined language, people, and even his own role in the production of law. In doing so, he created an opinion worth a few reading.

First, he sought to redefine the word “extraordinary.” Courts routinely define terms and in the case of the Eighth Circuit, they have defined an “extraordinary” departure as one that cuts the guideline sentence in half. This is a legal definition, of course. While this particular definition of extraordinariness may carry the force of law, it does not necessarily have the force of reality. Judge Bennett attacked attempted to undermine this legal holding by showing that a 50% reduction was not extraordinary, in the dictionary sense of the word. Like a good 21st century law prof, Judge Bennett used quantitative empirical data produced by the U.S. Sentencing Commission to show that such a reduction is actually quite ordinary. Thus, he attempted to undermine the Eighth Circuit’s legal claim by subtly shifting the term “extraordinary” out of its special legal use, and into common parlance. Very nice.

Judge Bennett also sought to redefine people. Most importantly, he wanted to reclaim the ability to define himself. He acknowledged that some people might see him as a sentencing softy. “Contrary to the perception that this string of reversals may have engendered, I am not a habitually lenient sentencer.” How to prove his sentencing cojones? First, he used capital punishment as a proxy for toughness. “The two most recent ‘kingpins’ to appear in my court received the death penalty”, he boasted. Then, more on point, he confirmed his willingness to bang a defendant, even when the government thought it unnecessary. “I have not hesitated to depart or vary upward, even sua sponte.” He concluded: “the issue is not, or should not be, whether or not I am an excessively lenient sentencer. I am not. What I am is a very experienced sentencer.”

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2

Drug Free Zones, Race, And Sentencing Dilution

A recent report from the Justice Policy Institute, Disparity By Design, reviews the use of “drug free zones”. Almost every state has adopted sentencing enhancements for individuals convicted of selling drugs within a set distance from schools or other drug-sensitive locations. In many jurisdictions, these zones reach a thousand feet (more or less) from the targeted drug-free site. In my home state, Alabama, any drug sale within three miles of any school (including universities) results in a mandatory five year prison term. As the Justice Policy Institute points out, this means that pretty much the entire core of the city of Birmingham is a drug free zone.

Whatever one may think of anti-drug policy, these drug free zones are very problematic. The Justice Policy Institute study points out one key reason: these rules have a substantially disparate racial impact. This disparity occurs because drug free zones have their greatest impact in high density areas, and because minorities – particularly African-Americans – are disproportionately concentrated in such areas. Though I haven’t studied the matter, I suspect that much of the impetus for these zones came from empowered suburban parents desperate to keep the drug menace out of their idyllic suburban school systems. As Joel Best showed in Threatened Children the push for many child protection laws – ranging from Megan’s Laws to these drug provisions – is typically provided by a relatively small coterie of activists who maintain their power and profile by promoting new child-protection legislation. My guess is that these individuals and groups did not set out to produce a law with a disparate racial impact. But just as in the case of Megan’s Laws – which I have shown have disparate race effects – nobody bothered to notice that these laws would almost inevitably lead to race disparities. Given the demographics of drug crimes, this impact simply cannot have been a surprise. (As for those states that make public housing a drug-free zone, matters are more complex. On one hand, the likelihood of disparate race effects is self-evident. On the other, some scholars – like Dan Kahan and Tracey Meares – might argue that the fact that these provisions are endorsed by representatives of minority communities effectively immunizes them from the disparate impact critique.)

There is a second problem with these laws, however. They undermine their very purpose. If the goal of these provisions was to deter drug sales within close proximity of schools, they should have created stronger sentences for crimes committed at the real site of risk. By expanding these zones far beyond schools, drug sellers cease to view schools as protected areas. Instead, as a practical matter, these zones simply increase the general punishment for drug sales. Some people may think this is a fine idea, but these people need to recognize that in doing so, they have diluted any special protection for schools. Not surprisingly, the study showed that these zones did not have a deterrent effect.

Kudos again to the Birmingham News for challenging Alabama’s expansive zones as bad criminal justice policy.

Hat tip: Doug Berman