Category: Criminal Law

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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.

 

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Some Thoughts on Section 230 and Recent Criminal Arrests

We’ve devoted considerable attention on our blog to Section 230 of the Communications Decency Act, which immunizes online service providers/hosts from liability for user-generated content. Site operators are protected from liability even though they knew (or should have known) that user-generated content contained defamation, privacy invasions, intentional infliction of emotional distress, civil rights violations, and state criminal activity. Providing a safe harbor for ISPs, search engines, and social networks is a good thing. If communication conduits like ISPs did not enjoy Section 230 immunity, they would surely censor much valuable online content to avoid publisher liability. The same is true of search engines that index the vast universe of online content and produce relevant information to users in seconds and, for that matter, social media providers that host millions, and some billions, of users. Without Section 230, search engines like Google and Bing and social media providers like Yelp, Trip Advisor, Facebook, YouTube, and Twitter might not exist. The fear of publisher liability would have inhibited their growth. For that reason, Congress reaffirmed Section 230’s importance in the SPEECH Act of 2010, which requires U.S. courts to apply the First Amendment and Section 230 in assessing foreign defamation judgments.

In the past few months, prosecutors have arrested notorious revenge porn site operators Hunter Moore, Kevin Bolleart, and Casey Meyering. Those arrests have raised the question, what about Section 230? Hunter Moore’s arrest is the least controversial. Although Section 230 immunity is broad sweeping, it isn’t absolute. It exempts from its reach federal criminal law, intellectual property law, and the Electronic Communications Privacy Act. As Section 230(e) provides, the statute has “[n]o effect” on “any [f]ederal criminal statute” and does not “limit or expand any law pertaining to intellectual property.” Federal prosecutors indicted Moore for conspiring to hack into people’s computers in order to steal their nude images. According to the indictment, Moore paid a computer hacker to access women’s password-protected computers and e-mail accounts to steal nude photos for financial gain—profits for his revenge porn site Is Anyone Up. Site operators may be held accountable for violating federal criminal law.

What about revenge porn operators Bolleart and Meyerson who are facing state criminal charges? Generally speaking, site operators are not transformed into “information content providers” (who are not immunized from liability) unless they co-developed or co-created the allegedly criminal/tortious content, such as by paying for the illegal content and reselling it or drafting some of the contested content themselves. California Attorney General Kamala Harris’s prosecutions of both Bolleart and Meyerson press the question whether Section 230’s immunity extends to sites that effectively engage in extortion by encouraging the posting of sensitive private information and profiting from its removal.

Let’s take Bolleart’s case. It’s based on a similar theory as the case against Meyerson, who runs WinbyState, a private revenge porn site with a connected site that charges for the take down of photos. In December 2013, Bollaert, operator of revenge porn site UGotPosted, was indicted for extortion, conspiracy, and identity theft. His site featured the nude photos, Facebook screen shots, and contact information of more than 10,000 individuals. The indictment alleged that Bollaert ran the revenge porn site with a companion takedown site, Change My Reputation. According to the indictment, when Bollaert received complaints from individuals, he would send them e-mails directing them to the takedown site, which charged up to $350 for the removal of photos. Attorney General Harris explained that Bollaert “published intimate photos of unsuspecting victims and turned their public humiliation and betrayal into a commodity with the potential to devastate lives.”

Bollaert will surely challenge the state’s criminal law charges on Section 230 grounds. His strongest argument is that charging for the removal of user-generated photos is not tantamount to co-developing them. Said another way, charging for the removal of content is not the same as paying for, or helping develop, it. That is especially true of the identity theft charges because Bollaert never personally passed himself off as the subjects depicted in the photos. Nonetheless, the state has a strong argument that the extortion charges fall outside Section 230’s immunity because they hinge on what Bollaert himself did and said, not on what his users posted. Only time will tell if that sort of argument will prevail. Even if the California AG’s charges are dismissed on Section 230 grounds, federal prosecutors could charge Bollaert with federal criminal extortion charges. Sites that encourage cyber harassment and charge for its removal (or have a financial arrangement with removal services) are engaging in extortion. At the least, they are actively and knowingly conspiring in a scheme of extortion. Of course, this possibility depends on the enforcement of federal criminal law vis-à-vis cyber stalking, which as we have seen is stymied by social attitudes and insufficient training.

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Neurocriminology: The Monsters are in the Molecules

Is the brain indeed the prime suspect when it comes to horrific crimes? Does our molecular structure or DNA determine our destiny, for the benevolent best or the malovent worst?

Such questions and others are explored in Dr. Adrian Raine’s book titled The Anatomy of Violence: The Biological Roots of Crime (Pantheon, 2013). This mind-opening book by a University of Pennsylvania professor of psychiatry and chairman of the department of criminology is the focus of an online symposium just posted on the Washington Independent Review of Books Gb4yObYARcACwebsite.

To help flesh out some of the instructive and provocative points raised in Dr. Raine’s illuminating book, NYU professor of Clinical Psychiatry Laurence R. Tancredi (who holds MD and JD degrees) and a University of Minnesota law professor Francis Shen (who specializes in neuroscience and the law) wrote commentaries. In the spirit of a free exchange of ideas, Dr. Raine authored a reply. I wrote the foreword to the symposium.

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Silence and Evil

Some of you may have read the story of the 55 bodies found at a reform school for boys in Florida. Although the national media is finally paying some attention (law professor Tim Wu deserves some credit for this), I cannot help but wonder the reasons that it isn’t considered true headline news. It is hard to identify a clearer example of a recent story exhibiting  such genuine evil and injustice.

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.

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“The German Prosecution Service: Guardians of the Law?”

I want to note the publication of my colleague Shawn Boyne’s fascinating new book on prosecutorial discretion in Germany.  Here is the Abstract:

Acclaimed as the “the most objective prosecutors in the world”, the German prosecution service has long attracted the attention in the past of comparative law scholars. At first glance, the institutional position and statutory mandate of German prosecutors indicate that that reputation is well-deserved. Unfortunately, the introduction of charge-bargaining has opened the door to criticism that German prosecutors have abandoned their role of objective decision-makers. Using interview data collected from interviews with German prosecutors themselves as well as quantitative data, the book uses the actual voices of German prosecutors to show how real-world constraints, rather than changes in the law, undermine the ability of German prosecutors to objectively seek the truth. The book will take readers behind closed doors where prosecutors discuss case decisions and unveil the realities of practice. As a result, it will critically revise previous studies of German prosecution practices and offer readers a well-researched ethnographic analysis of actual German decision-making practices and the culture of the prosecution service. Unlike prosecutors in America’s adversarial system, whom critics claim are driven by a “conviction-mentality” and gamesmanship, German prosecutors are institutionally positioned to function as (at least semi-)judicial officials dedicated to finding a case’s objective truth. The book argues that, organizational incentives and norms, rather than the boundaries of the law determinately shapes how prosecutors investigate and prosecute crime in Germany. 

American Arms Race

One has to wonder what the upshot of this story is for those who promote more widespread ownership of guns:

As a male moviegoer texted, the man seated behind him objected, and asked the texter to put his phone away. . . . Voices were raised. Popcorn was thrown. And then came something unimaginable — except maybe in a movie. A gun shot. [The texter] was fatally wounded. His wife was hit, too, through the hand as she raised her hand in front of her husband as the shooter drew a handgun.

Is the idea behind, say, universal carry (or concealed-carry) that someone else in the theater could have shot the gun out of the killer’s hand before he shot the texter? That in a world of universal gun ownership, nobody would think to pull a gun on someone else in a trivial situation like this because the other person’s wife would shoot back? I recall reading a science fiction novel years ago about a world where everyone was exceedingly polite, because they knew everyone else was packing lethal force. That may be about the most positive outcome I can imagine from the emerging American arms race.