Archive for the ‘Criminal Procedure’ Category

The Potentially Profound Implications of United States v. Jones

posted by Daniel Solove

I must respectfully disagree with a recent post by Renee Hutchins on our blog about the recent U.S. Supreme Court case, United States v. Jones.    She concludes:

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.

Although it is true that the majority opinion is narrow, the concurring opinions indicate five votes for a broader more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy. When I read Jones, I see cause for celebration rather than disappointment.

I have long argued that the Court has failed to understand that aggregated pieces of information can together upend expectations of privacy. See Privacy and Power 1434-35 (2001), The Digital Person 44-47 (2004), Understanding Privacy 117-21 (2008).  I have also critiqued what I call the “secrecy paradigm” where the Court has held that privacy is only invaded by revealing previously concealed information.  See The Digital Person 42-44 (2004), Understanding Privacy 106-12 (2008).  I have argued that privacy can be invaded even by public surveillance.  More recently, in Nothing to Hide 178 (2011), I argued:

The problem with the secrecy paradigm is that we do expect some degree of privacy in public.  We don’t expect total secrecy, but we also don’t expect somebody to be recording everything we do. Most of the time, when we’re out and about, nobody’s paying any special attention to us. We do many private things in public, such as buy medications and hygiene products in drug stores and browse books and magazines in bookstores. We expect a kind of practical obscurity—to be just another face in the crowd.

In Justice Alito’s concurring opinion, he seemingly recognizes both of the concept of aggregation and the fact that the extent of the surveillance matter more than merely whether it occurs in public or private:

Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.  But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.  For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Justice Sotomayor discusses this passage with approval in her concurrence, indicating five votes for this view.  Indeed, she would go even further than Justice Alito.

I see profound implications in Jones for the future direction of the Fourth Amendment and privacy law more generally.  I explain this in detail in a recent essay, United States v. Jones and the Future of Privacy Law: The Potential Far-Reaching Implications of the GPS Surveillance Case, Bloomberg BNA Privacy & Security Law Report (Jan. 30, 2012).  From the essay:

The more contextual and open-ended view of privacy articulated by Justice Alito has five votes on the Court.  This is a sophisticated view of privacy, one that departs from the antiquated notions the Court has often clung to.  If this view works its way through Fourth Amendment law, the implications could be quite profound.  So many of the Court’s rationales under the reasonable expectation of privacy test fail to comprehend how technology changes the dynamic of information gathering, making it ruthlessly efficient and making surveillance pervasive and more penetrating.  We might be seeing the stirrings of a more modern Fourth Amendment jurisprudence, one that no longer seems impervious to technological development.

I continue:

Read the rest of this post »

  January 29, 2012 at 1:18 pm   Posted in: Constitutional Law, Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)   Print This Post   One Comment

United States v. Jones, A Step Back for Rights

posted by Renee Hutchins

I appreciate the chance to engage with CoOp readers on the United States v. Jones case.  I wrote an Op Ed for the Baltimore Sun, so here’s what I have to say.

I really wanted to love the Supreme Court’s decision Monday in United States v. Jones. As one deeply committed to personal liberty and restrained government, what’s not to love when the nation’s highest court finds the police must obtain a warrant before continuously tracking the citizenry with installed GPS devices?  Unfortunately, the answer is “plenty.”

The Supreme Court in Jones could have categorically denounced intrusive government monitoring in the mold of the Orwellian state. It didn’t. And so, while the result in Jones is being roundly celebrated in many quarters, there remain good reasons for privacy fans to hold our applause.

Acting on suspicions that Antoine Jones was selling drugs, the government attached a GPS device to his car. From that device, police computers received a steady stream of information about the car’s location for 28 days. In all, more than 2,000 pages of location data were transmitted. Some of the data linked Mr. Jones to a house where substantial quantities of drugs and money were found. Mr. Jones was consequently charged with drug trafficking offenses. The trial court held that most of the data gleaned from the GPS device was admissible.

Commendably, the Supreme Court reversed that decision and declared the GPS monitoring of Mr. Jones unconstitutional. In doing so, however, the court refused to answer the long-standing question of constitutional limits on the Orwellian state. The case was an opportunity for the court to announce that round-the-clock surveillance of citizens without a warrant offends Fourth Amendment guarantees. Instead, the court based its analysis upon the narrower observation that the police attached a device to Mr. Jones’ car. The Supreme Court’s reluctance is understandable; the broader questions are complex and not easily resolved. But, now more than ever, advances in technology make pressing the need to confront the questions head on.

  January 29, 2012 at 10:29 am   Posted in: Constitutional Law, Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement)   Print This Post   7 Comments

Barry Friedman on United States v. Jones

posted by Danielle Citron

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts.  His piece adds an important layer to, and echoes, the conversation our experts have been having this past week.  If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum. Read the rest of this post »

  January 29, 2012 at 7:50 am   Posted in: Constitutional Law, Criminal Procedure, Privacy (Law Enforcement)   Print This Post   2 Comments

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   9 Comments

Jones is a Near-Optimal Result

posted by Paul Ohm

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

1. Justice Alito?

Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

2. Justice Scalia and Thomas showed restraint.

The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

3. Justice Sotomayor does not like the third-party doctrine.

It’s probably best here just to quote from the opinion:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

4. The wrong case for a privacy overhaul of the Fourth Amendment.

Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

  January 24, 2012 at 11:11 am   Posted in: Civil Rights, Constitutional Law, Criminal Procedure, Privacy, Privacy (Law Enforcement)   Print This Post   2 Comments

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

posted by Danielle Citron

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional.  There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan).  We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong).   In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

  January 24, 2012 at 8:26 am   Posted in: Civil Rights, Constitutional Law, Criminal Procedure, Privacy, Privacy (Law Enforcement)   Print This Post   One Comment

United States v. Jones — The Fourth Amendment and GPS Surveillance

posted by Daniel Solove

The U.S. Supreme Court has decided United States v. Jones, concluding that when the government installs a GPS surveillance device on a car, it is a Fourth Amendment search.  The majority uses a property-based rationale and the concurring opinion (Alito, Ginsburg, Breyer, and Kagan) uses a privacy-based rationale.   More thoughts and analysis to come later.

I also want to congratulate my colleague Orin Kerr, who is cited in both the majority opinion and in a concurring opinion for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004).  The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.

  January 23, 2012 at 12:04 pm   Posted in: Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement)   Print This Post   3 Comments

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

posted by Jeffrey Kahn

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

  December 31, 2011 at 9:24 am   Posted in: Civil Rights, Courts, Criminal Law, Criminal Procedure, Current Events, Uncategorized   Print This Post   No Comments

Original Habeas Writ

posted by Danielle Citron

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus.  He’s a wunderkind.  One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams.  Professor Kovarsky is also writing ground-breaking articles.  Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.

  December 25, 2011 at 2:53 pm   Posted in: Capital Punishment, Civil Rights, Constitutional Law, Courts, Criminal Procedure, Law Practice   Print This Post   No Comments

The Phone Booths in Katz v. United States?

posted by Kyle Graham

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

  December 20, 2011 at 8:30 pm   Posted in: Criminal Procedure, History of Law, Teaching   Print This Post   2 Comments

Back for One (or Two) Last Things—An Offer and a Request

posted by Kyle Graham

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

  December 17, 2011 at 4:44 pm   Posted in: Criminal Law, Criminal Procedure, History of Law, Teaching   Print This Post   One Comment

The Other Face of Torture

posted by Kyle Graham

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on top of convictions of the “core” charge or charges.  Nevertheless, charging crimes raise the prospect of a stiffer sentence upon conviction, which gives the defendant an incentive to come to terms with the prosecution, and thus, an incentive for the prosecutor to include these counts in the initial charging mix.

OK, but what does all this have to do with torture?  Well, while I haven’t done much research on the existence of charging crimes within state codes (most of my work on this point involves federal offenses that may amount to charging crimes, like use of fire or explosives in the commission of a federal felony [18 U.S.C. § 844(h)], witness tampering [18 U.S.C. § 1512(a)], and hostage taking [18 U.S.C. § 1203]), I suspect that under California law, torture may represent such an offense.

Here in California, the crime of torture (Penal Code, § 206) occurs when an individual, acting “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury” on the person of another.  Torture is punishable by a life term in prison (a defendant sentenced to life in California may be eligible for parole in as little as seven years, however).

Torture is broadly worded, such that it’s not that hard to prove; it overlaps with several other crimes; and it carries severe sentencing consequences.  These circumstances make torture susceptible to charging by those prosecutors who may, in the final analysis, care less about what particular crimes a specific defendant is convicted of than about the defendant receiving a particular dollop of custody time. Toward this purpose, the in terrorem effect of a torture count may encourage a defendant charged with this offense to plead guilty to lesser crimes, such as assault, that carry shorter sentences than the torture offense—but enough time to satisfy the prosecution (and judge).  In return, the torture count will be dismissed, and its life term averted.

These situations aren’t merely theoretical.  Recently, in San Jose, two brothers accepted plea deals to lesser charges that carry sentences of (respectively) two to seven and two to eight years in prison, after they were charged with torture for assaulting a former friend whom they suspected of molesting an eight-year-old girl (the stepdaughter of one of the two defendants).  In matters such as these, a torture charge effectively creates a high-stakes game of chicken between the prosecution and the defense, except that the prosecution is driving an 18-wheeler; the defendant, a subcompact.

All this is not to say that defendants charged with torture or related offenses are not accused of serious crimes—they are; nor that these defendants, if convicted, should not be held accountable for their actions—they should be; nor that the torture charges are somehow unsupported by the evidence in these cases—they are, which is the very problem. Instead, the point is simply that by creating such a broad crime that carries such a severe sentence, California voters (torture having been enacted by initiative in 1990) have provided prosecutors with a very substantial bargaining chip, and they can’t be too surprised when, as in the San Jose case, it’s used to win some pots that one might wish had gone unclaimed.

  December 15, 2011 at 1:58 am   Posted in: Criminal Law, Criminal Procedure   Print This Post   3 Comments

Speedy Justice

posted by Gerard Magliocca

I was doing some research on the assassination of William McKinley, and I was struck by how different the process given to his murderer, Leon Czolgosz, was from modern practice.  Consider this timeline:

Sept. 6, 1901:  Czolgosz shoots McKinley in Buffalo.

Sept. 14, 1901:  McKinley dies.

Sept. 16, 1901:  Czolgosz is indicted for murder.

Sept. 23, 1901:  His trial begins.

Sept. 24, 1901:  He is convicted.

Sept. 26, 1901:  He is sentenced to death.

Oct. 29, 1901:  He is executed.

Seven weeks from act to execution!

  December 14, 2011 at 8:19 am   Posted in: Criminal Procedure   Print This Post   5 Comments

Criminal Codes as Ecosystems: The Curious Case of Misprision of a Felony

posted by Kyle Graham

Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.

I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”

This crime seems pretty banal; it’s kind of like the algae of the federal criminal code.  You never hear about a complex, multi-agency investigation into misprision of a felony.  But, like algae, misprision of a felony serves very important purposes within its environment. It is what I call a “pleading crime,” used to resolve a wide range of matters in which a federal prosecutor, for one reason or another, either (1) doesn’t want to charge a potential defendant with the “concealed” substantive crime (even though there might be sufficient evidence to charge the person with, and convict them of, this offense), but does want to charge them with a lesser, related crime; or (2) wants to resolve, via a plea bargain, a case in which the substantive crime was originally alleged, but as to which evidentiary problems or other reasons for compromise exist.

Misprision of a felony fills these roles because of its malleable nature (it applies to the concealment of any felony) and because of the sentence that adheres to the crime.  The United States Sentencing Guidelines prescribe a sentence for misprision that’s indexed to, but somewhat below, that of the concealed offense. This placement tees up misprision of a felony as a (to use Ronald Wright and Rodney Engen’s phrase) “landing point” for compromises in plea deals.

Federal charging and plea-bargaining data underscore this crime’s role as a case closer.  In federal criminal cases that terminated by plea between October 2002 and September 2007, misprision of a felony was the most serious charge at the time of initial filing in only around 600 cases (virtually all of which resulted in a guilty plea to the misprision charge, suggesting a pre-filing deal between the prosecution and defense).  Misprision was most serious charge at the time of case termination much more often, claiming this status in more than 2,300 matters.  The almost 1:4 ratio bespeaks the frequent utilization of misprision of a felony as a pleading crime.

And so, just like species in an ecosystem, even the most humble crimes may serve important functions.   Though I’m still searching for the big-picture purposes of crimes such as acting or attempting to modify the weather without proper authorization (15 U.S.C. § 330a);  the misuse of the Swiss Confederation Coat of Arms (18 U.S.C. § 708); use of the United States Army or Air Force as a posse comitatus (18 U.S.C. § 1385); and the transportation of illegal dentures (18 U.S.C. § 1821).

  December 13, 2011 at 5:00 am   Posted in: Criminal Law, Criminal Procedure   Print This Post   5 Comments

Arizona v. Gant and Inventory Searches: A Good Subject of Empirical Study, Or Not

posted by Kyle Graham

A little while back, I was considering whether to undertake an empirical study into whether law enforcement officers were relying on the inventory-search exception to the warrant requirement more often after the United States Supreme Court’s 2009 decision in Arizona v. Gant, which pared back the search-incident-to-arrest exception to the warrant requirement insofar as it applies to vehicle searches.

Some have suggested that, given the number of exceptions to the warrant requirement that exist, the diminution of one exception will simply lead to the expansion of another. I thought that the post-Gant scenario would provide as good a setting as any to test this hypothesis, especially since it’s been said that officers are relying on the inventory-search exception to the warrant requirement more often in the wake of the Gant decision.

I decided not to perform the study, however, after a casual conversation with a local police officer. After I described the proposed inquiry to him, he said, in essence, “Don’t bother.” When I asked why, he told me that the numbers would almost certainly be skewed by the fact that the post-Gant era has coincided with substantial layoffs at local law enforcement agencies, due to the recession.

These layoffs would affect my results, the officer added, not only because they resulted in fewer officers, but also because (given last-hired, first-fired seniority rules) more recently hired officers were disproportionately affected by these cuts, and more recent additions to the force tend to be more eager than senior officers are to impound vehicles and perform inventory searches on them. And so, if the data reflected fewer inventory searches, or about the same number of searches, these totals might represent the recession-affected demographics of local police departments, as much as anything else.

I don’t know if what the officer told me was correct in every particular, but I thought it was interesting, and worth passing along as another reminder of how empirical studies can sometimes run into unexpected impediments.

  December 12, 2011 at 7:07 pm   Posted in: Criminal Procedure   Print This Post   No Comments

More “Strikes”: An Unintended Consequence of Realignment?

posted by Kyle Graham

California’s counties are still figuring out how to adjust to “realignment,” the name given to the state’s efforts to comply with the judicial decree, upheld in Plata v. Schwarzenegger, that demands a reduction in the number of prisoners incarcerated in state prison.

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully offset the costs of housing a prisoner in local jail. Meanwhile, the state is guaranteed to foot the bill if a defendant goes to state prison.

2) Furthermore, local judges and district attorneys might be loathe to clog up their jails with prisoners who will be taking up space there for several years, as might be the case post-realignment. Among the reasons why, a substantial body of long-term occupants may make it more difficult to accommodate the daily ebb and tide of short-term detainees.  Plus, some judges and district attorneys may have a lingering sense that some defendants who historically would have gone to prison should still go to prison, which now may occur only if the defendant is convicted of a strike.

3) In many cases, district attorneys have substantial discretion whether to allege, and insist upon a conviction for, a “strike.” For example, under California law, assault with force likely to produce great bodily injury is not, by itself, a strike. However, assault with force likely to produce great bodily injury that does produce great bodily injury is a strike. The threshold that caselaw and legislative history set for “great bodily injury” is not as high as one might think; on the right (or, depending on your perspective, wrong) facts, a broken jaw may suffice. Appreciating that the low bar for this “strike” may lead to disproportionate punishment, district attorneys sometimes choose not to allege a great bodily injury enhancement even when it would be justified. In other cases, prosecutors agree to dismiss the enhancement as part of a plea deal.

Put these facts together, and it seems at least possible that realignment will spur local district attorneys’ offices to charge “strikes” more often, and to insist upon more “strike” convictions in plea negotiations.  (Somewhat similar dynamics also may cause local judges to “strike” [which essentially means to remove, for sentencing purposes] prior strikes less often.)  I don’t know that this will occur, but it seems like a conceivable, if unintended, outcome.

If this result obtains, one response might be to think harder about requiring counties to foot at least some of the bill for the incarceration of the defendants they send to state prison. My colleague David Ball suggests as much in his recent paper Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates —And Why it Should, which provides an interesting take on the subject.

  December 11, 2011 at 11:39 am   Posted in: Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Barry Bonds: The Likely Sentence

posted by Kyle Graham

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.

  December 9, 2011 at 1:14 pm   Posted in: Courts, Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Ye Olde Professor’s Guide to Building an Exam Curve

posted by Kyle Graham

Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, ”You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.

***

The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.

  December 9, 2011 at 12:01 am   Posted in: Criminal Law, Criminal Procedure, Humor, Teaching, Tort Law   Print This Post   One Comment

Sandusky’s Law

posted by Kyle Graham

In the wake of the Penn State child-abuse scandal, authorities in several states have considered toughened and broader mandatory-reporting laws. These laws impose criminal penalties on certain adults, such as teachers and social workers, who fail to report known or suspected child abuse to the police.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be surprised by how small a portion of any criminal code drives a very large percentage of the overall criminal docket.  To illustrate this point, a while back, in connection with some other research I am pursuing, I performed a back-of-the-envelope exercise using charging data collected from the Executive Office for United States Attorneys (EOUSA) Central Charge file for federal criminal cases that terminated in Fiscal Year 2009 (October 1, 2008 to September 30, 2009). I wanted to see (1) how many different crimes were encompassed within this dataset and (2) the number of crimes that accounted for 50,75, 90, 95 and 99 percent of these charges. (Here, keep in mind that, at least according to one source, as of 2008 there were an estimated 4,450 crimes across the federal criminal “code.” Though, in truth, no one really knows for sure, and much depends on how you go about identifying distinct “crimes.”)

Overall, the EOUSA data for federal criminal cases terminating in FY 2009 identify 1,547 distinct crimes as having been alleged in these cases.  This sounds like a lot, but keep in mind the 4,450-crime figure cited earlier; even acknowledging the apples-to-oranges comparison issue, it’s obvious that many—almost certainly most—federal crimes were not alleged in even a single one of these cases.

Of the crimes that were charged, just 14 accounted for 50.6 percent of the 191,884 counts in the FY 2009 dataset. They are, in descending order of frequency, 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1); 8 U.S.C. § 1326(a); 18 U.S.C. § 1343; 18 U.S.C. § 1341; 21 U.S.C. § 841; 18 U.S.C. § 1344; 18 U.S.C. § 371; 8 U.S.C. § 1324(a)(1)(A)(ii); 18 U.S.C. § 924(c); 8 U.S.C. § 1324(a)(1)(A)(iv); and 18 U.S.C. § 1347. Few surprises here; drug crimes, felony re-entry, gun crimes, and fraud offenses represent federal prosecutors’ bread and butter.  (The fraud crimes are over-represented in this dataset relative to the number of defendants charged with these offenses, since a given case many involve dozens of fraud counts.) Meanwhile, just 61 crimes accounted for 75 percent of all counts; 164 crimes, 90 percent of all counts; 291 crimes, 95 percent of all counts, and 699 crimes, 99 percent of all counts.

I appreciate that this is a very rough exercise, to be viewed with a hefty pinch of salt.  To repeat, what may represent a single crime to one observer may constitute multiple offenses to another, and I did not review the dataset carefully to grasp the logic behind its crime-coding system (thus, for example, I don’t know why the EOUSA database distinguishes between 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841), or the accuracy of the data presented.

Nevertheless, even this simplistic inquiry underscores an important, and I believe incontestable, point: Vast portions of any criminal code are effectively inert.  My guess is that any new Sandusky’s Laws will join this moribund lot.

(This exercise used the following dataset: United States Department of Justice, Office of Justice Statistics, Bureau of Justice Statistics, Federal Justice Statistics Program: Charges Filed Against Defendants in Criminal Cases in District Court – 2009 (Study 30789).)

  December 5, 2011 at 1:38 pm   Posted in: Criminal Law, Criminal Procedure   Print This Post   No Comments

AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

posted by Jeffrey Kahn

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

Read the rest of this post »

  December 5, 2011 at 11:33 am   Posted in: Corporate Law, Corruption, Courts, Criminal Procedure, Current Events, Law School, Uncategorized   Print This Post   3 Comments

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