Category: Criminal Law

4

Separation of Powers and Prosecutions

97px-RoberthjacksonI was reading a book about Chief Justice Warren the other day and learned about a case that I knew nothing about.  In Irvine v. California, 347 U.S. 128 (1954), the petitioner was convicted of bookmaking.  To obtain the evidence that supported the conviction, state police went into Irvine’s home four times without a warrant to install hidden microphones (including a bedroom mic) and used the neighbor’s garage as a listening post for a month.  At that time, though, the exclusionary rule did not apply to the states, so the Court affirmed Irvine’s conviction.

Nevertheless, a plurality opinion written by Justice Jackson strongly condemned the police.  Then came this amazing paragraph:

“It appears to the writer, in which view he is supported by THE CHIEF JUSTICE, that there is no lack of remedy if an unconstitutional wrong has been done in this instance without upsetting a justifiable conviction of this common gambler. If the officials have willfully deprived a citizen of the United States of a right or privilege secured to him by the Fourteenth Amendment, that being the right to be secure in his home against unreasonable searches, . . . their conduct may constitute a federal crime under 62 Stat. 696 . . . This section provides that whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant of any state to the deprivation of any rights, privileges or immunities secured or protected by the Constitution of the United States shall be fined or imprisoned . . . We believe the Clerk of this Court should be directed to forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States.  However, Mr. Justice REED and Mr. Justice MINTON do not join in this paragraph.”

It’s not unheard of for the Court (or for individual Justices) to call upon Congress to do something.  (Such as amend a statute to correct the Court’s interpretation or provide a remedy where there is none.)  I know of no other example, though, where the Court called upon the DOJ to prosecute somebody.

Race, Justice, and the Political Economy of Vigilantism

A few thoughts in the wake of Zimmerman verdict (and related matters):

1) The New Yorker’s Amy Davidson stated last night, “I still don’t understand what Trayvon Martin was supposed to do” once he knew he was menaced.  Gary Younge similarly asked, “What version of events is there for that night in which Martin gets away with his life?”

Cord Jefferson, in a way, provides a practical response to that question:

To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.

Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance.  He notes that, “Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong.”

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Big Rig? Libor & Beyond

BankstersTo inaugurate a series of posts about scandals and crime in the financial sector, I wanted to highlight John Lanchester’s work in the London Review of Books on “banks’ barely believable behaviour.” He mentions the still unwinding Libor scandal up front:

Libor is the single most important number in international financial markets, used as a reference point throughout the global financial system. It is a range of interbank lending rates, set after consultation between the British Bankers’ Association and two hundred and fifty-odd participating banks. During the daily process, each bank is asked the rate at which it could borrow money from other banks, ‘unsecured’ i.e. backed only by its own creditworthiness rather than by specific collateral. The question is, in effect: what would your credit be like today, if you had to ask? . . . .

It seems bizarre that something so central to the global markets – $360 trillion of deals are pinned to Libor – should have such a strong element of invention or guesswork. The potential for abuse is immediately apparent. As Donald MacKenzie prophetically said, ‘the obvious risk to the integrity of the calculation is that a bank on a Libor panel might make a manipulative input, trying to move Libor up or down so as to influence interest rates or the value of its swaps portfolio.’ Surprise! After the crisis, when investigators were taking an energetic interest in Libor, it turned out that that was exactly what had been happening, not just at one or two banks but across an entire swath of the industry.

Lanchester only brings up LIBOR as the opening act for what he considers a far deeper scandal in Britain—PPI. And guess what—it’s not just LIBOR where we’re seeing these concerns about privileged access to information turning into profit. Here are some other “rigging” scandals of recent vintage:
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Badge = Deference & Submission

We know that, in theory, citizens have some rights vis-a-vis police. But in practice, does it make sense to simply submit to any person waving a badge? Reason magazine features a story where that seems to be the lesson:

A group of state Alcoholic Beverage Control agents clad in plainclothes approached [Daly], suspecting the blue carton of LaCroix sparkling water to be a 12-pack of beer. Police say one of the agents jumped on the hood of her car. She says one drew a gun. Unsure of who they were, Daly tried to flee the darkened parking lot. “They were showing unidentifiable badges after they approached us, but we became frightened, as they were not in anything close to a uniform,” she recalled Thursday in a written account of the April 11 incident. . . . That led to Daly spending a night and an afternoon in the Albemarle-Charlottesville Regional Jail.

This story also suggests a wider range of opportunities for abuse of the discretion granted to officers.

10

Sherlock and the Law

sherlockLike many, I’ve been watching the BBC’s Sherlock, a modern re-telling of Arthur Conan Doyle’s detective series. I’m only mostly finished the first series, but thus far it has been striking how little role law (and its constraints) play in the narrative.  Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State), he routinely behaves in unlawful ways.  He often breaks into dwellings (and cellphones, and cars) to get information; he is resistant to writing up his methods (and consequently, a defense attorney would not be able to effectively examine them); he browbeats suspects and witnesses; etc.  In the States, quite obviously, all of the confessions produced by his methods would be thrown out as poisoned fruit.

There’s nothing earth-shaking here – and it’s not the only time that law is devalued by storytellers – but I wondered whether and to what extent a series based primarily in the UK can avoid barnacled procedural discussions in a way that a series based in the US obviously can not.  That would then suggest that Elementary, a CBS show that apparently apes Sherlock in many ways, would spend more time talking about law (and the rules of criminal procedure) than Sherlock does. I haven’t seen the former show, so I’d love to be disabused of my fear that Elementary’s Sherlock spends most of his time filling out paperwork and discoursing on the complicated rules of electronic surveillance.

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Suicide and Legal Liability

A recent study indicates that more Americans committed suicide last year than were killed in car accidents.  This could be good news for auto safety, but it may also be bad news about the suicide rate.  This raises an interesting question–should the law do anything directly to discourage suicide?

At common law, suicide was a crime.  The penalties ranged from prison for attempted suicide that failed, being barred from burial in a cemetery, or escheat of the suicidal estate.  These sanctions were abolished in the twentieth century (at least in Anglo-American law).  A libertarian argument can be made that suicide should not be a crime because we have a right to end our life. (Assisted suicide presents more problems.)  Or you might say that suicide is a mental health issue and hence should not be punished at all.  Or you could say that punishing suicide only hurts the victim’s surviving family members.

Still, I wonder if the current hands-off posture is a little too sanguine.  Maybe there are some people who could be discouraged from suicide by legal consequences.  Complete escheat of the victim’s estate to the state is rather harsh, but what about partial escheat?  In effect, what if we said that you will pay a higher estate tax if you commit suicide?  Would that be so wrong?  Not all problems have a legal solution, but is this one of them?

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LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism

Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read More

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LSA Retro-Recap Day 1: Two Papers on Punishment Theory and Practice

I saw a lot of interesting presentations and met many interesting folks on Day 1. I note a spirited (and sparsely attended) panel on Corey Brettschneider’s When the State Speaks, What Should it Say? that, for some inexplicable reason, was held 8:15 am.

Here are two projects to keep an eye on. Both have extremely high VOSFOTWOAS. Read More

2

Franks on “How to Feel Like a Woman, or Why Punishment Is a Drag”

Professor Mary Anne Franks and fantastic guest blogger makes an important contribution with her latest work “How to Feel Like a Woman, or Why Punishment Is A Drag” (forthcoming UCLA Law Review). Professor Franks focuses on the sexual abuse of men in prison to help us better understand sexual and domestic abuse more generally. As Franks writes:

If a man in prison claims he was made “to feel like a woman,” this is commonly understood to mean that was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison, but sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. This Article argues that feminization is punitive for both men and women: it is as unnatural and as wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced drag, this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and to form our social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting – where sexual abuse is overwhelmingly experienced by women and committed by men – are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but forces law and society to consider sexual abuse in a productively counter-intuitive way.

Also, as my co-blogger Kaimi notes in our Asides, there is a write up of Prof. Franks in Ocean Drive that captures the force of her intelligence and personal strength.

23

Computer Crime Law Goes to the Casino

Wired’s Kevin Poulsen has a great story whose title tells it all: Use a Software Bug to Win Video Poker? That’s a Federal Hacking Case. Two alleged video-poker cheats, John Kane and Andre Nestor, are being prosecuted under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Theirs is a hard case, and it is hard in a way that illustrates why all CFAA cases are hard.

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