The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up [...]]]> The Ninth Circuit just issued an opinion about the interplay between state law enforcement, federal law enforcement, the Fourth Amendment, and state law.

The LAPD obtained a warrant to search a licensed medical marijuana facility. The LAPD did not, however, tell the judge that the place to be searched was licensed. The search proceeded. Around 209 pounds of marijuana, 21 pounds of hashish, and 12 pounds of marijuana oil were seized along with $186,416.00. The facility wanted the money back, but it had been turned over federal law enforcement and forfeiture proceedings were started. If forfeited, the city stood to gain about 80 percent of the money. The Ninth Circuit The Ninth Circuit’s ruling (pdf) has the full details. This passage seems to sum up the problem and the way in which the LAPD erred.

While there may have been probable cause to search UMCC for a violation of federal law, that was not what the LAPD was doing. Nothing in the documents prepared at the time the warrant was obtained from the state court or in the procedure followed to obtain that warrant supports the proposition that the LAPD thought it was pursuing a violation of federal law. Instead, it sought a warrant from a state court judge, though, as the District Court found, it lacked probable cause for a state law violation and failed to inform the state court judge of relevant facts that supported the conclusion that UMCC was not in violation of state law. The LAPD, a city agency, never initiated the process of seeking a federal search warrant from a federal magistrate or indicated that it was pursuing a violation of federal law.

I defer to Fourth Amendment scholars as to whether this ruling makes sense. Nonetheless, it seems that the federal government’s new policy might mean that state or local government that wants the federal government involved in going after medical marijuana facilities will have to persuade the federal government that a facility is not complying with state law. That requirement seems to match what the Ninth Circuit is saying state and local law enforcement groups should do with state judges in the first place.

Enter Ron Huberman, the new chief officer of Chicago public schools.  He has a plan to stop the killing, one that is based on an analysis [...]]]> The new chief officer of Chicago public schools has a fresh strategy for preventing the killings of public school students.  Such killings occur with alarming regularity; 67 since the start of the 2007 -2008 academic year.  If this doesn’t sound bad enough, the 67 doesn’t include the hundreds of students who were shot or beaten but managed to survive.  Right now Derrion Albert—the football player and honor student who was beaten to death when he got caught between rival gangs—is dominating the headlines.  But anyone who lives in Chicago expects that we’ll soon know another name.  The violence is relentless.

Enter Ron Huberman, the new chief officer of Chicago public schools.  He has a plan to stop the killing, one that is based on an analysis of more than 500 students who were attacked.   The plan might work, provided that Chicago is able to resist its inevitable temptations.

As Susan Saulny summarized in the New York Times,

Officials know that deadly violent outbursts are not truly random. The students at the highest risk of violence, by statistics, are most likely to be black, male, without a stable living environment, in special education, skipping an average of 42 percent of school days at neighborhood and alternative schools, and having a record of in-school behavioral flare-ups that is about eight times higher than the average student.

The analysis of student attacks also show that they typically happened beyond a two-hour window from the start and end of school — that is, late at night or very early in the morning — and blocks away from school grounds, where neighborhood boundaries press against one another.

 Huberman plans to spend $30 million on the 10,000 students whose profiles suggest that they are most at risk.  Chicago is aiming to radically intervene in the lives of these students in ways that “favor mental health strategies and prevention over policing and punishment.”  The goal is to create meaningful relationships with adults and to give each student a part-time job.  All of this requires coordination between the schools, the Police Department, the Department of Children and Family Services, and local community groups.  Chicago is also “becoming more strategic about providing safe passage to school by increasing police enforcement and by keeping tabs on gang and clique activities in real time as their turf wars hopscotch around school catchment areas.”

Chicago’s plan is an application of problem-oriented policing, which Professor Herman Goldstein pioneered in the 1970s and 1980s.  At root, problem-oriented policing calls on police to increase their understanding of the conditions that create community problems and to understand seemingly discrete events as related incidents that share common characteristics.

Consider this description of problem-oriented policing, taken from Michael Scott’s Problem-Oriented Policing, Reflections on the First 20 Years:

Under a problem-oriented policing approach, the police would recognize how functions like moral education, youth recreation and charity are integral to public safety, but would not see their role as one of providing these services directly, at least not permanently.  The key for the police is first, to establish some sense of ownership or responsibility for a community problem, and if the problem falls within the police mandate, either address it themselves, [or] broker ownership to some other entity. . . .  The police may join with many divergent entities in studying a problem, but ultimately the responsibilities for various responses should be apportioned among those entities according to their resources and competencies. 

Problem-oriented policing can yield extraordinary results.  One classic example is how New York City was able to clean up its subway system after closely studying the problem of vandalism and implementing responses that ranged from changing the way that spray paint was sold to immediately taking defaced cars out of service.  The work of Michael Scott and others provides additional examples.

As the New York Times noted and Huberman recognizes, kids have “to bite” in order for Chicago’s new approach to work.  This is the part that makes me nervous.  A problem-oriented intervention sometimes morphs into a traditional law and order approach.  Again New York City provides an example.  Rudy Giuliani may have described himself as subscribing to broken windows—that is, as cracking down on quality-of-life offenses to provide a sense of order that would discourage more serious crimes—but the quality-of-life crackdown also provided a pretext for making arrests that led to bigger collars and ultimately worsened relationships between the police and minority communities. 

The 10,000 kids at the heart of Huberman’s plan will have myriad connections to the neighborhood gangs that Chicago would like to break up or see unravel.  Many of the kids will have information that the Chicago police department would find enormously useful.  But unless Chicago resists the temptation to try to use these meaningful relationships to make bigger collars, the kids won’t bite.  Then Huberman’s smart plan will become another failed effort.

In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion.  Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.

President Obama said that the police “acted stupidly,” [...]]]> In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge?  Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.

In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion.  Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.

President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement.  He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.

Should the police have so much power to arrest a person?  With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.

And consider this story, from the Chicago Tribune:

Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.

As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.

Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .

A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.

Apparently, the yawn was very loud and disruptive, but jail?  Six months?  Why not simply kick him out of the courtroom?

Judges have tremendous discretion to issue contempt charges.  It is way too much, and there are few limits to reign judges in.  The article continues:

Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .

In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.

The public has a First Amendment right to attend courtroom proceedings, and judges like Rozak who issue such excessive contempt charges might have a deterrent effect on people attending his courtroom.

While police must have the ability to arrest a person who threatens to become violent or dangerous, and while judges must be able to govern their courtrooms, they have far too much discretionary power.  These two recent incidents demonstrate the need to reign in excessive discretion.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the [...]]]> Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.

The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.

According to Langer and Doherty, the managerial tools were not frequently used for three principal reasons: 1) under a largely adversarial system such as the one at the ICTY, judges have limited information about the case at the time they have to make decisions to streamline the proceedings; accordingly, they are reluctant to use managerial tools to shorten the proceedings because such tools may also lead to inaccurate or unfair outcomes; 2) the ICTY has not attempted to train, monitor, or incentivize judges to implement the managerial reforms consistently; 3) both prosecutors and defense attorneys have little incentive to expedite proceedings and prefer instead to maintain control over their cases.

The authors conclude by arguing that their findings should not be taken as disheartening. They point out that, in international criminal cases, managerial judging may often interfere with the goal of reaching accurate and fair outcomes. ICTY judges were therefore correct to be cautious in implementing the managerial procedural reforms.

There will soon be another ground for the authors to test their conclusions. At the permanent International Criminal Court, which follows a more inquisitorial model, judges would receive the evidence disclosed by the parties early during the pretrial stage. This may minimize one of the major problems that Langer and Doherty found with the ICTY procedural reforms-that judges lacked sufficient information about the case when deciding whether and how much to streamline the proceedings. Because ICC judges would have a better grasp of the case and more extensive information early in the process, they may be better able than their ICTY counterparts to expedite proceeding without interfering with accuracy and fairness. As the ICC begins trying more cases, Langer and Doherty-and others interested in the empirical study of international criminal procedure-should have extensive opportunities for further analysis.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea [...]]]> Germany was once known as a “land without plea bargaining.” Those days are now long gone.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea negotiations. Under the new German legislation, judges may initiate negotiations and may indicate the maximum and minimum sentence they would impose as part of the bargain. This requirement has the advantage of involving a neutral party in the bargaining process. At the same time, it raises concerns about judicial bias and even coercion, since the same judges who are involved in the negotiations will be determining the sentence. And if the bargain falls apart, the same judges will be deciding the guilt or innocence of the defendant.

The new law also settles an issue that was contested in the courts for some time-the validity of bargained-for waivers of appeal rights. The legislation prohibits any bargains that include a waiver of the right to appeal the verdict or the sentence. The prohibition on negotiated appeals waivers is a feature that U.S. courts and legislators would be well-advised to consider. Although negotiated appeals waivers are undoubtedly efficient, they also insulate from review a practice that is already criticized for its lack of transparency and its potential coerciveness.

The German legislation further provides that a court may reject a bargain it helped negotiate “when legally or factually significant circumstances were overlooked or presented themselves for the first time, and the court concludes for this reason that the predicted sentence is no longer proportionate to guilt. The court may also reject the agreement when further conduct by the accused contradicts the basis on which the court made its sentence prediction.” This provision aims to reconcile plea bargaining with two longstanding principles of German criminal procedure: 1) that the court has an independent duty to investigate the truth in the case; and 2) that the court must impose a sentence proportionate to guilt. But as German scholars like Thomas Weigend have suggested, the provision gives a surprising amount of leeway to judges in changing their minds about bargains they have helped negotiate. The defendant would then have no choice but to appear for trial before the same judges who have just rejected the bargain.

Another noteworthy element of the new legislation is its requirement that, if the court rejects a bargain, the defendant’s confession may not be used as evidence against him in subsequent proceedings. Under earlier case law, even when the court rejected a bargain, the defendant’s confession could be used against him at trial. The practical effect of this change may not be as great as it appears, however, since the same judges who have heard the excluded confession would be the ones conducting the subsequent trial.

In a broader context, Germany’s official embrace of plea bargaining is notable because it appears to represent a global trend. Countries as diverse as Russia, India, Taiwan, Australia, and Argentina have now adopted some form of plea bargaining. As a major civil-law system, Germany may well influence further developments in this direction around the world. It might not be long before countries like China and Japan-which have so far largely resisted plea bargaining-formally adopt the practice. And even countries with longstanding traditions of plea bargaining, such as the United States, could learn from Germany’s experience about new ways to enhance the fairness of plea bargaining.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end [...]]]> Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and [...]]]> Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property [...]]]> Wow.   A pharmacist accused of murder decided to pay his lawyer with his firearm collection.  When the Judge presiding over his case inquired as to how many guns, exactly, that collection entailed, a constitutional fight ensued.  Quick: which amendment gets play?  (Hint: it’s not the 2nd!)

“I gave every weapon of mine to my attorney. I swear to the Lord,” Jerome Jay Ersland said.

Oklahoma County District Judge Tammy Bass-LeSure last week allowed Ersland, 57, of Chickasha to be released on $100,000 bail but she banned him from any access to weapons. The hearing today was to see if he had complied with her order.

Ersland told the judge he no longer owns the weapons. Defense attorney Irven Box said he took the weapons and other personal property from Ersland as payment of part of the attorney fees in the case.

Box told the judge he has accepted other unusual payments in the past, including comic books.

The case arises out of Ersland’s shooting – in purported self-defense – of an individual robbing his store.  You can see the video here.  And as for the constitutional right to withhold information about Ersland’s gun collection?  That would be the right against self-incrimination:

District Attorney David Prater also said prosecutors could use the answer to that question against Ersland at trial.

The judge at one point said she would put Ersland back in jail if he didn’t answer her question but eventually she decided not to revoke his bail. She said she had learned a lesson and will not in the future let a defense attorney collect a defendant’s weapons.

This advice is generalizable. Take cash over credit, and credit over barter.  And never, ever, take the instruments of the crime.

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have [...]]]> From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Mavericks’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent.  (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions.  That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both.  Wright didn’t choose to foul; he was told to foul. 

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing.  A sporting event between two teams is a kind of competitive commons.  Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport.  That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community.  ”Ordinary” fouling in basketball is a weird way of giving back to the game.  *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport.  Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free: If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage.  Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated.  The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons.  Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s  intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two.  One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge [...]]]> I plan for several of my blog entries this month to address the United States Supreme Court’s confused conception of the role of truth-seeking at trial, particularly as revealed in its constitutional criminal procedure jurisprudence. My primary examples will be drawn from the Court’s various opinions this term concerning the scope of the exclusionary rule. Today’s entry focuses on the rule’s application in the Sixth Amendment right to counsel context in Kansas v. Ventris, 556 U.S. __ (2009).

Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge against Teel in exchange for her pleading guilty to robbery and testifying that Ventris was the shooter. Before Ventris’s trial, officers planted an informant in Ventris’s jail cell, an informant willing to testify that during his conversations with Ventris, Ventris admitted that “he’d shot this man in his head and his chest” and taken “his keys, his wallet, about $350.00, and…a vehicle.”

The state would later admit that this statement was obtained in violation of Ventris’s Sixth Amendment right to counsel on the pending charges, a right triggered by the start of formal criminal proceedings. At trial, Ventris testified, blaming the robbery and shooting entirely on Teel. The state argued that even if Ventris’s statement to the jailhouse informant could be excluded in the state’s case-in-chief as violative of the Sixth Amendment, the statement was now admissible to impeach Ventris by contradicting his testimony. Such contradiction would demonstrate that Ventris had lied to the jury.

The trial court agreed, admitting the statement allegedly made by Ventris to the jailhouse informant, though giving the jury an instruction to “consider with caution” all testimony given in exchange for benefits from the state. The jury acquitted Ventris of felony murder and misdemeanor theft but convicted him of the aggravated burglary and robbery counts. The Kansas Supreme Court reversed on Sixth Amendment grounds, but the United States Supreme Court instead agreed with the trial judge. Impeachment of the accused by an uncounseled statement allegedly made to a jailhouse snitch absent the presence of the accused’s counsel — whose presence the Sixith Amendment mandated — was entirely constitutional, at least in the high Court’s eyes.

Here is where the Court’s troubling notions of truth kicked in.

The Ventris Court justified its new rule permitting impeachment by creating a dichotomy — distinguishing between constitutional rights that by the terms of their text mandate exclusion of evidence if violated and those that do not. The fomer class of rules almost always required exclusion, while the latter class of rules were subject to balancing to decide whether exclusion would so further deter wrongful police conduct as to justify suppression’s cost in reducing the ability to determine the truth at trial. The Court also distinguished between “core” constitutional rights and “prophylactic rules forbidding certain pretrial conduct,” applying balancing as well to these latter rules.

The exclusion of a Sixth Amendment-violative statement for impeachment purposes, concluded the Court, fell into the balancing class of cases. Given that police could not in advance know that a defendant would take the stand (a relatively rare event) and lie, the police could not assume the admissibility of the statement. Accordingly, the deterrent effect of excluding the statement in the state’s case-in-chief will not be diminished by failing to exclude the statement for impeachment purposes, continued the Court. Correspondingly, however, explained the Court, impeachment by contradiction is key to deter defendant perjury and to protect the integrity of the trial process. The exclusionary game was thus not worth the candle, for, once lit, that candle would burn away truth.

I address this rationale, and its problematic nature, in more detail below.

1. The Distinction between Textual and Non-textual Exclusion: Although this distinction is at least implicitly oft-made by the Court, it lacks substance. Thus, in the Fourth Amendment context, the Court, or at least numerous Justices, repeatedly note that the Amendment’s text never mentions a remedy. The Court thus describes the exclusionary rule as a judicially-created remedy designed to deter Fourth Amendment violations, and thus subject to being balanced away given the costs to truth-seeking imposed by suppression.

But, as Justice Brennan wisely explained in his dissent to United States v. Leon, 468 U.S. 897 (1984), seizures are generally conducted precisely for the purpose of “bringing proof to the aid of Government” at trial. Moreover, the Fourth Amendment restrains the power of the government as a whole, including the judciary, not only restraining police. Accordingly, the wrongful seizure of evidence and its use at trial are part of a single continuing governmental violation. Said Brennan, “[I]f the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other.” Indeed, “because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as the other.” Furthermore, if police had complied with the Fourth Amendment, they would have had no evidence in the first place, so the Amendment seems to contemplate loss of inculpatory evidence as a cost of the privacy, property, and locomotive rights that the Amendment protects.

But all this can be said equally, indeed, as I discuss below, more strongly, about the Sixth Amendment right to counsel.. The denial of counsel during deliberate state elicitation of defendant statements post-indictment and the admissibility of that statement in court are part of a single governmental action, and had the counsel right been respected, the police would not have had Ventris’s alleged statement in the first place. The exclusionary rule is thus not simply a judicially-created device but part and parcel of the right to counsel itself.

2. The Multiple Meanings of the Assistance of Counsel: The Court’s logic concerning the meaning of the “assistance of counsel” and its formalist distinction among sub-types of right to counsel rules is internally inconsistent. The Court agrees that the “core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to ‘the crucible of meaningful adversarial testing.’” The Court cites for this proposition, moreover, a case that recognizes that this core trial right is to the effective assistance of counsel. See United States v. Cronic, 466 U.S. 648 (1984).

But the Court is fuzzier on whether the right to counsel at post-indictment pre-trial interrogations is a “core” right or a “prophylactic” one, cryptic language at various points supporting either interpretation. Nevertheless, the Court agrees that the point of the right is to “ensure that police manipulation does not render counsel entirely impotent — depriving the defendant of ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” (emphasis added). Yet the Court describes the effect of admitting evidence at trial for violation of this pretrial right as follows:

It is illogical to say that the right is not violated until trial counsel’s task of opposing conviction has been undermined by the statement’s admission into evidence. A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt—even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much.

This is an odd sort of logic. I fail to understand how both the trial right and the pretrial right guarantee the effective assistance of counsel but the suppression at trial of a statement obtained by violating the pretrial right requires merely representation by counsel that is “simply not worth much.” Not only is this an inconsistency that the Court does not justify other than labeling the exclusionary rule in that circumstance a rule created merely to deter the police, but the inconsistency ignores one of the central reasons for creating the pretrial right in the first place: pretrial events may create evidence that in effect, by their admission at trial, render the trial virtually useless, the outcome a foregone conclusion.

The Court’s clearest articulation of this position was in its holding in United States v. Wade, 388 U.S. 218 (1967), that the Sixth Amendment right to counsel applied at pretrial but postindictment eyewitness identification procedures like lineups. The Wade Court first emphasized the danger of unreliable lineup identifications, then linked the need for counsel closely to the out-of-court identification’s impact at trial and to the therefore necessary existence of an exclusionary rule. Explained the Court,

any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present. In short, the Court’s ability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’s courtroom identification.

Elsewhere in its opinion, the Wade Court made the link among effective representation by counsel, a serious opportunity for cross-examination of witnesses at trial, and yet the limits of even cross itself as aiding truth under such circumstances even clearer:

Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the over-reaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — “that’s the man.”

Although less fully,clearly, and eloquently, the Court followed a logic similar to Wade’s in Massiah v. United States, the leading case recognizing a right to counsel at post-indictment but pretrial interrogations, noting there that the denial of counsel at such a time “might deny a defendant effective representation by counsel at the only stage when legal advice would help him….”

The tremendous inter-connectedness of trial and pretrial proceedings underscores the absurdity of separating out counsel rights based on the stage at which they are triggered, as Massiah particularly recognized, concluding that “the most critical period of the proceedings” is from “the time of arraignment until the beginning of … trial,” for it is during that time span when “consultation, thorough-going investigation and preparation [are] vitally important” so that defendants are “as much entitled to such aid [of counsel] during that period as at the trial itself.”

The Sixth Amendment’s text by itself also seems to contemplate the counsel right as one seamlessly continuing across a time span, rather than being limited to trial or subdivided into pockets of differing ranges of discrete bundless of protection, for the Amendment declares that the right to counsel applies “in all criminal prosecutions,” not in all “trials” or only other specified events. Only such seamless interconnection gives the counsel right real meaning.

3. Informants, Compelled Confessions, and the Wrongly-Convicted: Wade further recognized that the right to counsel advances truth rather than impeding it. Granted, most, though far from all, defendants are likely guilty of something, though not necessarily that with which they are charged. Any effort to acquit the guilty thus seems, at least in the popular mind, inconsistent with truth-finding. And constitutional rights, importantly including the right to counsel, serve many goals other than truth-finding, including protecting privacy, avoiding compulsion, deterring unjustified humiliation, and so on.

Yet the very assumption behind the adversary system is that the clash of equally-matched adversaries will produce truth. In practice, of course, that assumption is often unfounded, as the many proven instances of wrongful convictions of the innocent demonstrate. But flawed eyewitness identification procedures, like those in Wade, are not the only causes of wrongful convictions. Indeed, Ventris involved two other major causes: (1) flawed confession procedures and (2) jailhouse informants.

The literature on both subjects is vast and need not be reviewed here, though I refer readers to concise literature summaries in the comments to two documents: American Bar Association, Achieving Justice: Freeing the Innocent, Convicting the Guilty, The Report of the ABA Criminal Justice Sections’ Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process (2006), and The Death Penalty Initiative of The Constitution Project, Mandatory Justice: The Death Penalty Revisited (2006).

The Ventris Court seems to assume that counsel can only be a hindrance to obtaining truthful confessions, a premise it expressly rejected in Miranda v. Arizona, 384 U.S. 436 (1966), and that is contradicted by the vigorous efforts of counsel to reveal wrongful convictions in the many cases that have caught the public’s attention. Likewise the Ventris Court blithely dismisses concerns about the unreliability of “jailhouse snitches” by simply asserting that “it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid ‘establishing this Court as a rule-making organ for the promulgation of state rules of criminal procedure.”

Yet the Court in Wade recognized quite to the contrary that juries are not anywhere near foolproof and that minimal constitutional guarantees of procedures designed to promote reliable evidence are as necessary in state as in federal trials. The Ventris Court, by contrast, entirely ignores the empirical literature, repeated anecdotal evidence, and lessons of experience demonstrating the special dangers to reliable factfinding of jailhouse snitch testimony, dangers well-recognized by numerous judges, prosecutors, defense attorneys, police, academics, and well-respected bar groups and law reform organizations.

The Ventris Court’s sole implicit response is its noting that in the case before it the jury apparently disbelieved the snitch, who had said Ventris admitted to murder, because the jury acquitted him of that charge. But that outcome in a single case is a poor basis for crafting a rule for the broad run of cases that ample evidence suggests should embody far more skepticism about jailhouse informant testimony than the Ventris . Court chose to embrace.

4. Conclusion: I had originally planned to point out as well the inconsistencies of the Ventris Court’s reasoning with its reasoning in its Miranda and Fourth Amendment line of exclusionary rule cases, but this posting is already too long. Perhaps I will return to the point at a later date. Nor am I necessarily rejecting the idea that under certain circumstances permitting impeachment of defense witnesses by uncounseled statements may make constitutional sense. But the reasoning of the seven member (amazingly lopsided!) Ventris Court majority seems to me likely in many instances to undermine truth-finding, ostensibly in the name of doing quite the opposite. Moreover, the Court sets the stage for its awkward concept of truth-seeking at trial by an artificial division of the nature of the Sixth Amendment right to counsel into a set of rigid categories that neither the Amendment’s text nor logic nor sound constitutional policy will bear. Furthermore, the Court reaches its conclusions by completely ignoring a raft of social science evidence, surely an approach hard to square as well with truth-finding about the “normative facts” underlying a constitutional rule.

At a minimum, therefore, the Court’s concern about truth-seeking at trial is ill-defined, ill-defended, ill-reasoned. More likely, its conception is plainly wrong, especially in its reliance on artificial categorical distinctions. Justice Stevens, joined by Justice Ginsubrg in dissent, had the better of the argument, concluding that while “the constitutional breach began at the time of interrogation, the State’s use of that evidence at trial compounded the violation.” For Stevens, the pretrial counsel right is of a piece, and thus as important as, the trial right, with the Court sanctioning “shabby tactics” that do violence to the “adversarial process — the fairness of which the Sixth Amendment was designed to protect,” while disabling the accused from any effective response to potentially false evidence introduced at trial. Sanctioning such wounds to the adversary process is, concludes Stevens, “intolerable.” Quite so.

For one thing, the current Court does not like to overrule prior cases. For another, the justices might disagree about the reach of [...]]]> Writing in the New York Times, Adam Liptak casts the Supreme Court’s recent decision in Herring v. United States as a big step towards repealing the exclusionary rule the Court crafted in 1961 in Mapp v. Ohio. Liptak emphasizes that Chief Justice Roberts, the author of the majority opinion in Herring, had advocated doing away with the exclusionary rule while he served as a government lawyer under President Reagan. In predicting where the Court is headed, Liptak places greater stock in memos Roberts wrote as a government lawyer than I would. I doubt the Court is likely to overrule Mapp any time soon.

For one thing, the current Court does not like to overrule prior cases. For another, the justices might disagree about the reach of the exclusionary rule, but a majority of them accept that, for better or for worse, it is here to stay.

Instead of a repeal, we are likely to see the core of the exclusionary rule preserved, along with the Court’s refusal to extend the rule to novel situations where the deterrent value is not obvious. Herring fell into this latter category. It held that the Fourth Amendment did not require suppression when a negligent error in the records contained in a police database led an officer to believe incorrectly that a warrant existed to arrest a suspect and then arrested him. Applying the balancing approach from earlier cases, Chief Justice Roberts reasoned that the cost of exclusion outweighed the deterrent value and therefore the exclusionary rule was not an appropriate remedy.

While Liptak (and commentators he quotes) see Herring as the beginning of the end, the case is better seen as one in a line of decisions in which a majority of the court accepts the exclusionary rule as a component of our criminal justice system but does not accept that the rule has to be applied as a remedy for all Fourth Amendment violations. While Herring is, therefore, a step, and a step away from the perspective that the exclusionary rule should apply across the board, it is nonetheless a small step. Future small steps in the same direction will also likely limit the reach of the exclusionary rule but they are not likely to add up to the rule’s repeal.

In particular, due to a negligent error in a computer database indicating that there was an outstanding felony arrest warrant for Bennie Herring, he was arrested and a search incident to arrest revealed drugs and a gun (which he was not permitted to possess since he had a previous felony conviction).

The Supreme Court, in an opinion by Chief Justice Roberts, concluded that the justification for the exclusionary rule is deterrence and that the deterrent benefits in this case were too minimal to support exclusion. The Court wrote that “the exclusionary rule serves [...]]]> Earlier this week, the U.S. Supreme Court decided Herring v. United States, a case examining whether the exclusionary rule should apply to a search that was based on an error in a database.

In particular, due to a negligent error in a computer database indicating that there was an outstanding felony arrest warrant for Bennie Herring, he was arrested and a search incident to arrest revealed drugs and a gun (which he was not permitted to possess since he had a previous felony conviction).

The Supreme Court, in an opinion by Chief Justice Roberts, concluded that the justification for the exclusionary rule is deterrence and that the deterrent benefits in this case were too minimal to support exclusion. The Court wrote that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”

Orin Kerr contends that the case is “a replay” of Arizona v. Evans, 514 U.S. 1 (1995), a previous case upholding a search based on an erroneous database. In contrast, Tom Goldstein argues that Herring constitutes a more dramatic curtailment of the exclusionary rule:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.

Orin disagrees, reading Herring as a narrow decision, not going much further than Evans: “In particular, I don’t see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases.” Is Orin right? Is Goldstein’s fear just a Red Herring?

I hope Orin is right, but two things give me pause. First, the Court states at the beginning of Part II: “When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation.” This is framed much more broadly than the issue in Evans, which was:

This case presents the question whether evidence seized in violation of the Fourth Amendment by an officer who acted in reliance on a police record indicating the existence of an outstanding arrest warrant — a record that is later determined to be erroneous — must be suppressed by virtue of the exclusionary rule regardless of the source of the error.

Note that in Evans the Court explicitly focuses on errors in police records.

Second, at the end of its opinion in Herring, the Court states:

Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U.S., at 909-910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” In such a case, the criminal should not “go free because the constable has blundered.” (some citations omitted)

One could read this in two ways: (1) as signaling a broader rule, that police searches that violate the Fourth Amendment, if based on negligent assumptions rather than a higher standard of fault, will not trigger the exclusionary rule; or (2) improper police searches based on the kind of database error in this case (”the result of negligence such as that described here”) will not trigger the exclusionary rule.

Ultimately, only future cases will tell us whether this is the start of a new broader rule or just a restatement of Evans. If the Court were just restating Evans, why bother taking the case only to affirm a routine application of Evans?

As for the merits of the case–narrowed to the issue of database errors–I think that there must be some kind of deterrent in place in order to justify not applying the exclusionary rule. I agree with the Court that the exclusionary rule shouldn’t be automatic for any erroneous search. However, I find the Court’s dismissal of the potential deterrent effects of the exclusionary rule in this case to be far too glib. The Court fails to address, in the absence of the exclusionary rule, how deterrence will be enforced. The Court doesn’t seem to care — if the errors aren’t systemic, then they’re of little importance. The Court seems fixated on forcing defendants to establish that there are systemic errors in police databases, something that can be very difficult to prove. Moreover, it might be too high a threshold — a database might have a number of avoidable errors in it yet not rise to the level of systemic errors. All errors should still be deterred. There must be some kind of penalty or consequence for an error. In Herring, because of the Court’s decision, the police benefited from the error.

I would therefore hold the following: If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors. Under Herring, there is no such incentive so long as the databases aren’t systemically erroneous.

After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but [...]]]> I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.

After listening to Professor Phillipe Sands on NPR’s Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands’s argument, but listening to him, it did strike me that prosecutions–especially international ones–are more of a possibility than I had previously thought.

Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process–which could have more legitimacy and would avoid sovereignty concerns–remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.

If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.

Another permutation–impeachment of Bush Administration officials after they have left office–looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I’ll post more on “late impeachment” in the next few days.)

Again, I’m not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn’t realize a few hours ago.

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that [...]]]> At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie’s case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.

5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.

It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they “will be” pardoned “as soon as they get the individual warrant” (which may take weeks to arrive). The OPA always tell them they “have been” pardoned. No contingencies.

So far, the president’s argument has been that the pardons were still in some state of preparation–not yet a pardon, in essence–and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)

Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.

One might argue that Toussie hadn’t accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president’s), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn’t accept it.

I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president’s argument in this case–that the Toussie pardon had not yet been granted–is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought “what? you can’t revoke a pardon.” Then, upon hearing the claim that the pardon hadn’t been processed yet, I thought “well, maybe this wasn’t a pardon.” Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I’m back to “what? you can’t revoke a pardon.” I hope that Toussie litigates this and that the court settles this once and for all.

Of course, there is still the matter of Ruckman’s argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman’s credit, they shoot down the callow media reports that Bush’s move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of [...]]]> Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual.” It didn’t say that Bush started the process of pardoning them. It said he pardoned them, because that’s what everyone understood was happening. Without knowing exactly how these things work, I can’t assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn’t purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can’t be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie’s case, because he “believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.” But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.

In any case, if I were Toussie (the only person with standing to challege the president’s action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.

But once President Obama takes office, one can assume the application will be rejected, if it hadn’t been already. Then Obama’s administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old “let’s not cede any authority we may have” doctrine. Then again, Obama could argue in favor of the president’s power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.

To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.

It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.

I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had [...]]]> As this MSNBC story and this CNN story detail, President Bush pardoned real estate scammer Isaac Robert Toussie, and then revoked the pardon a day later (today).

It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.

I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.

President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president’s revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president’s action in court. From the CNN story, though, it doesn’t sound like that is going to happen.

Strange days indeed.

UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn’t final.

Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court’s eyes:

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn’t want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let’s accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.

In Toussie’s case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie’s pardon; DePuy therefore does not control. Toussie’s pardon thus seems to be final in a way that Wilson’s and DePuy’s pardons were not.

However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn’t deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.

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Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.

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