Category: Criminal Procedure

4

Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.

6

More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday’s Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury’s factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury – grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering – as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia’s move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can’t be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there’s nothing the Supreme Court can do about it.

4

Are We Too Obsessed By Capital Cases?

One of the recurring themes in Doug Berman’s (incredibly valuable) blog is his concern that capital cases receive too much scrutiny. He doesn’t deny the significance of the sanction, but believes that other sentencing issues – e.g., the new guidelines jurisprudence, the incredible overuse of long-term imprisonment, and the sense that a substantial number of innocent people may be pleading guilty to felonies - are of greater overall importance. (Of course, for all his protestations, Sentencing Law and Policy is a go-to address for news about capital punishment issues.)

I think he raises an important matter, and rather than take issue with him, I’d like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss’s claim that empirical data on crime has produced some clear truths about effective responses to crime – check out Dan Markel’s preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America’s ability to claim moral authority in many international debates and disputes.

That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.

So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government – whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.

But I certainly don’t think that capital punishment should use up all the oxygen of criminal justice debate. Doug’s blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn’t turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.

Personally, I’m going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree – and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug’s caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.

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Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that “among all prosecutions homicide cases suffer an unusually high incidence of false conviction.” He explained this phenomenon as due to “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent”. Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases – from drug cases, to DUI, to disorderly conduct – error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults – including homicides – involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID’s in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to “believe” eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they’re telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

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8

Wild KPMG Fees Decision

Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.

Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.

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High Noon At The Supreme Court On The Purpose Of Criminal Appeals?

Yesterday’s SCOTUS decision in United States v. Gonzalez-Lopez is the most recent installment in a fascinating debate about the function of appellate reversal and the value of procedural rights in criminal cases.

Of course, appellate crimlaw folks know all about the “harmless error” doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between “structural errors” in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and “trial errors” in the criminal process (which require appellate reversal of convictions unless they are “harmless beyond a reasonable doubt” to the outcome.

The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant’s not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn’t allow that lawyer to represent the defendant or to participate in the trial at all.)

The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.

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5

Scalia v. Souter On The Death Penalty

Today’s Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas’s death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other – that is, it’s an evidentiary tie. (There’s a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America’s death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent.” Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded “in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.”

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that “because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system.” Put another way: innocent people may be executed, but probably not that many, and there’s not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter’s three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter’s opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently – and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter’s opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn’t a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don’t reduce erroneous convictions. Souter’s argument only makes real sense – as the dissent notes – if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That’s not a narrow procedural ruling; that’s a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn’t even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don’t know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can’t have thought he’d win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter’s opinion was designed for all these purposes, as well as to spur further international debate on America’s use of capital punishment. Indeed, the international dimension of this case – which Scalia highlighted – is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order – discovered by 41 – increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it’s easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain’t so bad. I agree with MJ, commenting over at Orin’s place, though. I suspect that Scalia’s opinion was so much of a “smack-down” that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

5

Scalito No More!

In today’s decision, U.S. v. Gonzalez-Lopez, Justices Scalia and Alito broke into separate camps on the issue of counsel choice. Scalia, writing (surely with contrarian joy) for the liberal majority, held that a court’s improper denial of an individual’s counsel of choice was a constitutional error requiring automatic reversal. Alito, dissenting – and not respectfully either! – argued that there was something wrong with the idea that a person could end up with a better lawyer than he’d have preferred, but still score a new trial.

I’ll post at a bit more length in a little while. But I thought it interesting to see these supposed doppelgangers divide so neatly. (And even more so to see a little attitude show through in the opposing opinions.)

Mind you, I’m not holding my breath.

0

Parole After Samson

Yesterday, in Samson v. California, the Supreme Court held that the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. Justice Thomas argued that prisoners are subject to suspicionless searches. And because, in his view, parole is essentially a prison sentence that continues on the outside, the state retains the right to continue those searches during parole. Thomas made a clear distinction between those on probation (who have greater privacy rights) and those on parole. Stevens, writing for Breyer and Souter, argued that this decision constitutes an expansion of police power because it allows, for the first time, suspicionless searches in the absence of governmental “special needs.”

The dissent correctly views the decision as a doctrinal shift, but it is only one more step in a lonstanding move towards a “common sense” (i.e., defendant unfriendly) approach to criminal justice. Frankly, the Fourth Amendment horse left the barn when Humphrey’s campaign against Dick Nixon fell short.

The more interesting questions for me involve the long-term implications of Samson. The dissent states that only one or two states allow searches of the type experienced by Samson. I have to think that most states wil now join the bandwagon. DA’s will rarely lose a Fourth Amendment suppression motion submitted by a parolee. Other than states with a special interest in parolee privacy – and I have yet to meet that state – I would expect most jurisdictions to encourage officers to conduct these suspicionless searches. (Will an officer have to know she’s searching a parolee? Or will she get the free-pass search so long as she has probable cause to believe she’s about to search a parolee?)

Samson also creates new incentives for DA’s at sentencing. There is now a clear distinction between probation and parole: only parolees are subject to suspicionless searches. A savvy DA will ask for sentences that involve long paroles rather than long probations. (Thus, for example, a defendant who had served nine months awaiting trial might get an indeterminate sentence like “9 months to 5 years”, rather than simply “time served plus five years probation.” On the flip side, perhaps this enhanced supervision will make parole boards (or judges) a hair more comfortable placing inmates back on the street earlier in their sentence. (I’m not holding my breath.)

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The Problem Of Jury Override In Capital Cases

The ABA death penalty assessment for Alabama highlighted several serious concerns regarding the role of the jury in capital cases. First, judges can override jury recommendations of life. Second, a 10-2 vote – two short of unanimity – is sufficient to support a death recommendation. And, in a slightly different vein, surveys of jurors in capital cases suggest that these jurors are utterly confused about the applicable law. In this post, I’ll attempt to provide further analysis on the issue of jury overrides. (This is my fourth post about the ABA assessment. Others are here, here, and here.)

In Alabama, capital juries only recommend a sentence; the final decision on life or death belongs only to the judge. Alabama is one of only four states that allow a judge to sentence a defendant to death when a jury has rejected this sanction and imposed life. (Some people thought that Ring v. Arizona ended this practice, when it provided that juries – not judges – must find aggravators beyond a reasonable doubt. Because of the structure’s of Alabama’s death statute, however, Alabama courts have thus far upheld Alabama’s override statute.) Of these four states, Alabama is the only jurisdiction that selects judges in partisan elections. Jury override is designed to allow judges to regulate the use of death to insure that the punishment is not imposed arbitrarily or unfairly.

It turns out that in Alabama, 90% of all judicial overrides of jury verdicts impose death against the advice of the jury. Why is this?

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