Category: Criminal Law


Plea Bargaining, Reliance, and Sex Offender Restrictions

Judges often refer to a plea deal as subject to the rules of contract law. However, when judges make that statement, they usually backtrack and realize how poorly contract law operates in the criminal domain. The role of the judge as a third party to the deal as well as a lack of normal consideration are particularly difficult to square with typical contract rules. The ongoing struggle in plea deals involving sex offenders is particularly illustrative of how plea bargaining sometimes operates in an environment of anarchy.

Doug Berman points to a Second Circuit opinion today that demonstrates how the concept of reliance is essentially meaningless in a world where legislative enactments apply to classes of, and not individual, defendants. In the case, a defendant pled guilty to a misdemeanor charge of attempted possession of a sexual performance of a child. At the time of his plea, the law required 10 years of registration for his sex offender status and allowed for a petition to remove his name from the sex offender registry afterward. The defendant complied with his registration requirements for the entire decade and then petitioned to have his name removed from the registry. However, in the intervening time period, the legislature extended the time frame for registration for his class of sex offenders to 20 years and removed the procedure for the defendant to have his name taken of the registry. The Second Circuit saw no constitutional or other problem and denied any relief to the sex offender. I wanted to draw attention to one particular section the opinion:

Doe also argues that he was deprived of due process when, as he asserted in his complaint, despite the sentencing court’s promise to him, the Legislature amended the law to abolish the petition for relief from registration. We are no more persuaded by this second argument than we were by the first. There is no serious dispute that the New York State Legislature provided constitutionally adequate process simply by enacting [the SORA amendments], publishing [them], and . . . affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those

Although prosecutors often deliver such promises to defendants, this case was particularly interesting because the sentencing judge further assured the defendant that he would be able to petition to have his name removed. However, the Second Circuit was unpersuaded because it construed the relevant due process right as one of notice related to subsequent legislation. As long as the defendant received notice of the subsequent amendments, there is no constitutional violation under the Second Circuit view (which is universal among courts as far as I know).

Using contract law, we might expect a different outcome. After all, in Santobello v. New York, the Supreme Court found that a prosecutor was in breach of a plea deal by violating a term of the plea contract (by recommending a sentence despite a promise not do so). Thus, we might think that defendants can rely on parties to plea deals (prosecutors and judges). However, many sex offenders have accepted plea deals because of statements made by prosecutors and judges based upon statements that ended up not being true. Sometimes prosecutors have assured defendants that they will not have to register because they are pleading guilty to a nonsexual offense. However, federal registration and some state registration requirements have been subsequently held to apply non-categorically meaning that the underlying facts of the case control the obligation to register. In other cases, like the Second Circuit one from today, prosecutors and judges have made accurate statements of law at the time that are rendered false through subsequent legislative action. And yet the reliance of defendants on such statements and promises have been ignored by courts across the country. In all cases, though, sex offenders are being denied any relief because cases like Santobello are interpreted as only applying to actions related to the sentence by the judge and not so-called collateral restrictions made by the legislature. This might just be the common exception-making that goes on when cases involve sex offenders. However, I think the problem is even more fundamental. The Supreme Court’s deconstitutionalization of plea bargaining and the difficulty in applying contract rules consistently has left the process unrestrained in certain contexts. The case today illustrates that a defendant who is considering a deal for a case involving sex crimes should make no assumptions about the status of sex offender requirements based upon present law. General principles of reliance and fairness simply have no role under current doctrine when collateral restrictions are involved.

Surveillance, Capture, and the Endless Replay

Global opposition to surveillance may be coalescing around the NSA revelations. But the domestic fusion centers ought to be as big a story here in the US, because they exemplify politicized law enforcement. Consider, for instance, this recent story on the “threat” of “Buy Nothing Day:”

Fusion Centers and their personnel even conflate their anti-terrorism mission with a need for intelligence gathering on a possible consumer boycott during the holiday season. There are multiple documents from across the country referencing concerns about negative impacts on retail sales.

The Executive Director of the Intelligence Fusion Division, also the Joint Terrorism Task Force Director, for the D.C. Metropolitan Police Department circulated a 30-page report tracking the Occupy Movement in towns and cities across the country created by the trade association the International Council of Shopping Centers (ICSC).

Yes, police were briefed on the grave threat of fake shoppers bringing lots of products to the till and then pretending they’d forgotten their wallets. Perhaps the long game here is to detain members of the Church of Stop Shopping to force them to make Elves on the Shelf for $1 an hour.

More seriously: no one should be surprised by the classification of anti-consumerist activists as a threat, given what Danielle Keats Citron & I documented, and what the ACLU continues to report on. But we do need more surprising, more arresting, characterizations of this surveillance. Fortunately, social theory provides numerous models and metaphors to counter the ideology of “nothing to hide.”
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George Will and more Politicization of Rape

George Will joins the chorus of conservative authors writing about rape on college campuses. As with other recent articles, Will’s piece downplays the problem of rape on campuses. He writes:

Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.” Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

Six weeks later, the woman reported that she had been raped. Now the Obama administration is riding to the rescue of “sexual assault” victims. It vows to excavate equities from the ambiguities of the hookup culture, this cocktail of hormones, alcohol and the faux sophistication of today’s prolonged adolescence of especially privileged young adults.

Will’s decisions to surround “sexual assault” with quotation marks and emphasize the passage of six weeks before the victim reported the rape belies a disbelief that substantially colors his judgment. Will leaves it to the reader to guess why he doesn’t view the alleged events as rape. I find that omission to be notable. As is often true in rape trials, certain arguments work better when implied than when explicitly stated. The most famous example is perhaps Roy Black’s extensive cross-examination of the alleged victim in the William Kennedy Smith case. Black went through a series of questions about the decision of the alleged victim to wear her underwear after she had said she was raped. He was especially indignant when she testified that she even wore her “panties” when she went to see her mother. If Black actually stated explicitly that “there was no rape because the alleged victim wore the same underwear afterward,” it would have sounded ludicrous. However, the questioning about the panties and on several other topics served to make the jury believe the alleged victim was not acting like a “real” victim. Will seems to be playing the same rhetorical game. Was the Swarthmore incident not rape because the alleged rapist previously had sex with the alleged victim? Did “no” mean something besides “no?” Is sleeping next to someone automatically consent to penetration (even with an explicit “no” acknowledged)? Does a six week delay indicate a lack of credibility? Will doesn’t say because his argument would sound hollow if made explicit. Instead, he joins Roy Black in playing on the biases of the reader/listener without being accountable for potentially ugly implications of his arguments.

Will also has some questionable interpretations of relevant statistics:

The administration’s crucial and contradictory statistics are validated the usual way, by official repetition; Joe Biden has been heard from. The statistics are: One in five women is sexually assaulted while in college, and only 12 percent of assaults are reported. Simple arithmetic demonstrates that if the 12 percent reporting rate is correct, the 20 percent assault rate is preposterous. Mark Perry of the American Enterprise Institute notes, for example, that in the four years 2009 to 2012 there were 98 reported sexual assaults at Ohio State. That would be 12 percent of 817 total out of a female student population of approximately 28,000, for a sexual assault rate of approximately 2.9 percent — too high but nowhere near 20 percent.

Beyond Will’s untested assumption that Ohio State is representative, he fails to consider other possible explanations for the reporting gap. Indeed, one of the central reasons why schools are being investigated for Title IX violations is that rape reports to campus police are not being counted in final tabulations sent to the federal government. Will simply assumes his conclusion by finding the survey data to be not credible. He presumes that any inconsistency between the two statistics indicates the 1/5 number is wrong because of his own worldview. Yet he gives no reason to prefer Ohio State’s self-reported numbers to that survey data.

Will’s involvement, as well that of the AEI, is notable. With recent media attention, it seems that rape has become a political football. And that fact is a disservice to victims and innocent defendants alike.


UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480



Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548





The National Review and the Politicization of Rape

Perhaps triggered by the Obama administration’s call to action regarding campus rape, the National Review Online has published a series of fact-deficient articles about rape in America. Mona Charen, A.J. Delgado, and Thomas Sowell collectively substantially downplay the seriousness of sexual violence while engaging in extensive victim blaming. All three pieces are marked by overheated rhetoric, including Sowell’s surely record number of uses of the word “lynch” in an article not about race or actual lynching. However, I want to look past the rhetoric to discuss the substantively problematic statements made in the three articles. In particular, these stood out to me:

  • “Of course the culture must teach men not to rape. Western culture has been doing so for thousands of years. Next to murder, rape is the most harshly punished crime.” – Charen

This contention, under the most charitable interpretation, is only true if we focus on the small handful of rapists who are prosecuted, convicted, and harshly sentenced. The reality is far different when looking at the entire universe of rape complaints. Even among the number that are reported to the police, prosecution is rare, conviction is rarer, and lengthy incarceration is the outlier event. RAINN estimates that just 3 out of 100 alleged rapists see a day in prison for the rape which they are accused (edited as noted in the comments).

  • “Is it not counterproductive to lump victims of violent rape in with victims of ‘sexual assault’?” – Delgado

This rhetorical question illustrates a misunderstanding of modern rape law and the debate on campuses about rape law enforcement. In many jurisdictions, there is no separate crime of rape. Instead, there are just degrees of sexual assault. Delgado could properly argue that there is an important distinction between groping (low-degree sexual assault) and rape (high-degree sexual assault), but she doesn’t identify anyone actually lumping them together.

  • “Violent-crime statistics — including sex crimes — have been declining for two decades. Did all the bad guys suddenly decide to enroll in universities? No one can explain it, other than to claim that rapes must have been underreported in the past (a claim that is, conveniently, impossible to disprove).” – Delgado

As my recent study indicates, declining rape rates in America are more indicative of police practices than genuine decreases in sexual assault. In fact, the evidence strongly points to a rise in rape over the last twenty years. However, campus rape specifically is simply understudied and poorly understood. There isn’t good evidence either way about rates of reporting, conviction, rates, or incidents on college and university campuses.

  • “After all, for every legitimate, actual rape claim there may be another that was not: a girl who cried rape.” – Delgado

Even with the implied caveat of the words “may be,” this claim is simply wrong. Delgado largely bases this claim on an anecdote about a college friend and some cherry-picked incidents. The plural of anecdote is, of course, not data. In fact, studies of false accusations for rape have generally shown a false reporting rate of 2 to 10%. In the context of other crimes, particularly theft, this rate of false reporting is not unusual and generally indicates, compared to other crimes, false reports of rape are low.

  • “The young women who find themselves in a rough world of sexual insensitivity and sometimes even brutality are looking in all the wrong places to lay blame. They should look left; to the cultural left, that is, including the feminists.” – Charen
  • “But those who are whipping up the lynch-mob mentality have shown far less interest in stopping rape than in politicizing it. Many of the politically correct crusaders are the same people who have pushed for unisex living arrangements on campus, including unisex bathrooms, and who have put condom machines in dormitories and turned freshman orientation programs into a venue for sexual ‘liberation’ propaganda.” – Sowell

Both Charen and Sowell want to blame some monolithic “left” for rape on campuses. The strangeness of this claim is particularly questionable from Sowell as he is simultaneously decrying the politicization of rape. At the core, both claims seemingly rely on the premises that liberalism teaches promiscuity and promiscuity leads to rape. Ignoring the first premise, the second one is entirely unsubstantiated. There is simply no good evidence that a persons decision to have multiple sex partners over any period of time makes them more likely to be a rape victim. Indeed, the belief of Sowell and Charen is a common rape myth and why every American jurisdiction has a rape shield law.

I respond to the National Review articles not because I believe the authors will change their views. Rather, I think the politicization of rape embodied in the three recent articles is a serious obstacle to successfully decreasing sexual violence in America. Rape is not a political football to be played with. As I always talk about with my Sex Crimes seminar students, there is nothing about rape (with the possible exception of its relevance to debates about abortion) that necessitates it being a Left-Right issue. Generally speaking, the right-wing has been more supportive of hard-on-crime policies and the left-wing has been more considered with gender issues (where rape has historically fit). And so, there should be a natural overlap within which reasonable discussion can occur.

When the President says we need to do more about rape, the proper responses should be, “what should we do?” and “how can I help?” It says much about our ugly politics that blaming the “left” is considered a reasonable response. Rape is a horrible crime and rape victims are real people. Casting them aside to score political points is simply unacceptable.

Sowell’s larger point illustrates the potential upside of non-partisan debate about rape. Sowell points to the dangers of campus adjudication of rape complaints. On this issue, reasonable minds can disagree. Campus tribunals are often poorly designed, susceptible to undue influence, and inconsistent. Further, university penalization of those found guilty through campus proceedings is all over the map in terms of severity. On the other hand, the criminal justice system moves far too slow and often not at all in rape prosecutions. That means on-campus victims are often left dealing with their rapists without some alternative to the criminal justice system. The current system fails everyone and clearly needs improvement. Rather than politicizing the issue, Sowell could have offered any litany of suggestions on how to harmonize, improve, or speed up the criminal and campus justice systems.

Not too long ago, conservative Senator Sam Brownback and liberal Senator Paul Wellstone co-sponsored the first major federal legislation specifically focused on human trafficking, the Trafficking Victims Protection Act. The natural overlap between the hard-on-crime approach of Brownback and Wellstone’s concern for women’s and children’s issues led to cooperation that seems almost unfathomable in today’s toxic political climate. Hopefully, the recent efforts to turn rape into an issue of partisanship will abate and similar federal and state laws can emerge to address the ongoing and serious problem of sexual violence in America.


Crime Statistics at Big Universities

I have continued my efforts to make sense out of the Clery Act crime data and made a couple more interesting discoveries. In trying to limit noise and floor effects in the data, I’ve been focusing on large 4-year schools with dorms. After eliminating secondary campuses and mislabeled schools, I found 54 universities with at least 30,000 students fitting the other criteria. Even at those big schools, most of the tracked crimes rarely occur. For example, from 2008 to 2012, for any of those 54 schools, there was 1 murder (Virginia Tech, 2009) and 2 manslaughters (Florida State, 2011; Michigan State, 2012). Even data for the tracked crimes of aggravated assault, arson, car theft, non-forcible rape, and robbery at the 54 biggest campuses in the country are so infrequent that any incidents are difficult, if not impossible, to differentiate from noise. That leaves only two Clery Act crimes that are reported to occur with a high enough frequency such that we might hope to learn something comparative about on-campus crime: forcible rape and burglary.

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More Oddities in College Campus Rape Data

Following up on my post from yesterday, I keep coming across more strange data regarding campus rape from the Department of Education. Importantly, higher education institutions provide this data because of statutory obligation. And yet, it seems hard to believe that most institutions are taking their legal obligations seriously. However, not all of the data for schools is unbelievably low. Consider these odd reports:

Michigan State University College of Law, 1,024 students, 49 rapes from 2010 to 2012

Michigan State University Main Campus, 48,783 students, 49 rapes from 2010 to 2012

I’m guessing that the law school is getting blamed for all of the main campus rapes which are being double counted. Otherwise, the College of Law (which is physically located on the main campus) is one of the most unsafe places for sexual violence in the United States. The odd Michigan State data also highlight a general Big 10 pattern of seemingly higher reporting levels. Big 10 schools report far more rapes than other schools (with only the Ivy League institutions coming close in total counts). In 2012, these were the totals from each Big 10 Conference school with overall ranking (after the jump):

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College Campus Rape Statistics

This post is meant to be  informative, but also includes a request for help. As much as I have criticized the data supplied by many police departments to the FBI, the numbers provided by colleges and universities seem more problematic. The media spotlight has turned onto campus rape in the wake of the bungled Jameis Winston investigation and Obama administration’s call to action. However, based upon the government’s data, the magnitude and nature of the problem of sexual violence at institutions of higher learning cannot be reliably determined.

The Department of Education data concerning over 11,000 higher education institutions in the country appears to be garbage. In 2012, for example, the individual school data only lists 45 non-forcible campus rapes nationwide. In contrast, there were 3,943 forcible campus rapes in the Department of Education data. We would expect non-forcible rapes to be far higher than forcible rape, especially on college campuses. And both rates are far below the national average and contrary to survey data about the rate of sexual assault on college campuses. Because it appears that elite and large state universities are reporting more forcible rapes, at least one author has tried to blame this on liberalism in academia. The far more likely explanation seems to be that the data is just worthless and/or most schools simply aren’t reporting rapes at all as required by law. Interestingly, the school facing the greatest scrutiny in 2012 in the aftermath of the revelations about Jerry Sandusky, Penn State, reports 56 forcible rapes, 22 more than the next highest school (and at least twice as many as all but 2 other schools). In contrast, in 2010, before the Sandusky investigation, Penn State reported only 4 forcible campus rapes based upon the Department of Education data. Almost 10,000 institutions are reported to have had 0 campus rapes in 2012. That’s simply unbelievable.

As I am hoping to research this topic a lot more in the coming months, I was hoping to contact someone about my concerns. However, I know no one in the Department of Education and the Department of Education website hosting the data provides no contact information that I can find to those actually responsible for collecting and organizing the data. If anyone can point me in the right direction or has some insight into the data, I would greatly appreciate help.


Why Having Accurate Crime Data Matters

In the series finale of The Wire, Cedric Daniels, who had just resigned his new appointment as the fictional Police Commissioner of Baltimore, offered this basic, somewhat profane, insight into why truth in crime data is important:

“I’ll swallow a lie when I have to; I’ve swallowed a few big ones lately. But the stat games? That lie? It’s what ruined this department; shining up shit and calling it gold so majors become colonels and mayors become governors; pretending to do police work while one generation fucking trains the next how not to do the job.”

A few years ago, there was a wonderful panel at Law & Society regarding The Wire which featured fantastic panelists and the disembodied head of David Simon, creator of the show, in the background via Skype. After listening to each of the presentations by academics, Simon offered his own view of the show and addressed what had been said. Interestingly, he said that the fundamental theme of The Wire was, similar to the quote from Daniels, was “shining shit and calling it gold.” Politicians, police, drug dealers, newspapers, and virtually everyone featured in the show played the game of taking something worth little and pretending it was something much better. And so, it shouldn’t be surprising that when police performance is judged by easily manipulated crime statistics, some police will choose the easiest path to success: gaming the numbers. And the primary way that crime numbers are kept low in many cases is to not investigate victim complaints at all (deeming them false or not creating a written record of the complaint).

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Crime Statistics and Public Expectations

Before I began work on my article, How to Lie with Rape Statistics, several local newspaper investigations turned up shocking evidence of systemic police undercounting of rape incidents in four cities across the country. In the mid-1990’s, the Philadelphia Inquirer caught the local police gaming the rape statistics sent to the FBI. The city police would regularly classify rape complaints as “investigate persons” without further inquiry. As a result, the city was able to announce lower violent crime rates based upon faulty data. In 2005, the St. Louis Post-Dispatch uncovered similar practices in St. Louis. There, the police used informal memos instead of written complaints to record allegations of rape. These memos were not counted in official crime numbers. The police even pressured victims to sign waiver forms releasing police from any obligation to further investigate their complaints. In 2009, the Times-Picayune and Baltimore Sun found large-scale rape data manipulation in New Orleans and Baltimore. The Baltimore police took advantage of the “unfounded” rule wherein police do not have to count criminal complaints deemed false. However, the department regularly used the category with little or no investigation performed. New Orleans police repeatedly downgraded offenses to crimes that were not counted in official stats.  According to the investigation, over half of New Orleans rape complaints were designated as “Signal 21″ which was a non-criminal category where rape cases went to die.

Why would police engage in such blatant fabrication of crime statistics? The simplest answer is that the unrealistic goals of the public and politicians have left police in a no-win situation. Since the early 1990’s, the country has been in the midst of The Great American Crime Decline. Violent crimes, as tracked through the Uniform Crime Reports, have decreased at record rates throughout this period. And, yet, during that time frame, every Gallup poll except one indicated that the public believed crime actually rose from the previous year. On average, the polls showed that 61% of those surveyed believed that crime had increased from the previous year, 24% believed it had decreased, and 9% thought it had stayed the same. So, even as the FBI, police, and media were reporting record declines in crime, the public actually believed the opposite. In order to meet the unrealistic expectations of the public and their elected politicians, it is little wonder that some police departments resorted to less savory techniques to be able to report a decline in crime in their jurisdictions.