Category: Criminal Law


The Federal Bias In Criminal Law Scholarship


John Pfaff has an interesting post up at Empirical Legal Studies Blog entitled Federalism and Empirical Legal Research. In it he asks why there appears to a skew towards analysis of federal law among empirical researchers of criminal law. He ultimately boils his questions down to these:

1. Do we focus “too much” on federal outcomes?

2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people’s lives?

3. If so, how can we rectify this? In particular, if it’s a problem of data availability, how can we get the numbers we actually need?

In my view, we do focus too much on federal courts. Most cases – and prisoners – are in state systems. And states really are different. The employees are different because state criminal jobs often involve less training and lower salaries than comparable federal positions. State facilities are often in much poorer condition. State sentencing schemes vary widely from state to state, and often look little like federal provisions. And because most state prosecutors and judges stand for election, they operate under a different set of professional pressures. I would expect these differences have substantial effects on case processing and outcome.

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A Defining Opinion On Federal Criminal Sentencing

Doug Berman has pointed out a truly engaging sentencing opinion out of the Northern District of Iowa. The case, U.S. v. Saenz, involved a downward departure from the federal sentencing guidelines for a defendant who provided “substantial assistance” to the government. After Kim Saenz entered a plea of guilty to a drug crime, and in light of her genuinely substantial assistance to prosecutors, Judge Mark Bennett gave the defendant a 68% reduction in sentence. Thus, Ms. Saenz received a term of 20 months for her role in the distribution of marijuana. The Eighth Circuit slapped down Bennett’s ruling, holding that this downward departure from the (no longer binding) federal sentencing guidelines was “unreasonable and excessive.” In particular, the Circuit indicated that a downward departure of 50% for substantial assistance was inherently “extraordinary.” It appears that several of the Judge’s recent sentencing decisions have been remanded on the grounds of excessive leniency.

Judge Bennett’s decision was all about redefinition. He redefined language, people, and even his own role in the production of law. In doing so, he created an opinion worth a few reading.

First, he sought to redefine the word “extraordinary.” Courts routinely define terms and in the case of the Eighth Circuit, they have defined an “extraordinary” departure as one that cuts the guideline sentence in half. This is a legal definition, of course. While this particular definition of extraordinariness may carry the force of law, it does not necessarily have the force of reality. Judge Bennett attacked attempted to undermine this legal holding by showing that a 50% reduction was not extraordinary, in the dictionary sense of the word. Like a good 21st century law prof, Judge Bennett used quantitative empirical data produced by the U.S. Sentencing Commission to show that such a reduction is actually quite ordinary. Thus, he attempted to undermine the Eighth Circuit’s legal claim by subtly shifting the term “extraordinary” out of its special legal use, and into common parlance. Very nice.

Judge Bennett also sought to redefine people. Most importantly, he wanted to reclaim the ability to define himself. He acknowledged that some people might see him as a sentencing softy. “Contrary to the perception that this string of reversals may have engendered, I am not a habitually lenient sentencer.” How to prove his sentencing cojones? First, he used capital punishment as a proxy for toughness. “The two most recent ‘kingpins’ to appear in my court received the death penalty”, he boasted. Then, more on point, he confirmed his willingness to bang a defendant, even when the government thought it unnecessary. “I have not hesitated to depart or vary upward, even sua sponte.” He concluded: “the issue is not, or should not be, whether or not I am an excessively lenient sentencer. I am not. What I am is a very experienced sentencer.”

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Drug Free Zones, Race, And Sentencing Dilution

A recent report from the Justice Policy Institute, Disparity By Design, reviews the use of “drug free zones”. Almost every state has adopted sentencing enhancements for individuals convicted of selling drugs within a set distance from schools or other drug-sensitive locations. In many jurisdictions, these zones reach a thousand feet (more or less) from the targeted drug-free site. In my home state, Alabama, any drug sale within three miles of any school (including universities) results in a mandatory five year prison term. As the Justice Policy Institute points out, this means that pretty much the entire core of the city of Birmingham is a drug free zone.

Whatever one may think of anti-drug policy, these drug free zones are very problematic. The Justice Policy Institute study points out one key reason: these rules have a substantially disparate racial impact. This disparity occurs because drug free zones have their greatest impact in high density areas, and because minorities – particularly African-Americans – are disproportionately concentrated in such areas. Though I haven’t studied the matter, I suspect that much of the impetus for these zones came from empowered suburban parents desperate to keep the drug menace out of their idyllic suburban school systems. As Joel Best showed in Threatened Children the push for many child protection laws – ranging from Megan’s Laws to these drug provisions – is typically provided by a relatively small coterie of activists who maintain their power and profile by promoting new child-protection legislation. My guess is that these individuals and groups did not set out to produce a law with a disparate racial impact. But just as in the case of Megan’s Laws – which I have shown have disparate race effects – nobody bothered to notice that these laws would almost inevitably lead to race disparities. Given the demographics of drug crimes, this impact simply cannot have been a surprise. (As for those states that make public housing a drug-free zone, matters are more complex. On one hand, the likelihood of disparate race effects is self-evident. On the other, some scholars – like Dan Kahan and Tracey Meares – might argue that the fact that these provisions are endorsed by representatives of minority communities effectively immunizes them from the disparate impact critique.)

There is a second problem with these laws, however. They undermine their very purpose. If the goal of these provisions was to deter drug sales within close proximity of schools, they should have created stronger sentences for crimes committed at the real site of risk. By expanding these zones far beyond schools, drug sellers cease to view schools as protected areas. Instead, as a practical matter, these zones simply increase the general punishment for drug sales. Some people may think this is a fine idea, but these people need to recognize that in doing so, they have diluted any special protection for schools. Not surprisingly, the study showed that these zones did not have a deterrent effect.

Kudos again to the Birmingham News for challenging Alabama’s expansive zones as bad criminal justice policy.

Hat tip: Doug Berman


Should Silence Be Free?

Moussaoui.jpegThe invaluable Lyle Denniston reports on Zacarias Moussaoui’s new filing before Judge Brinkema :

The new filing also contended that the government, with aviation security evidence, would be seeking to prove something that the government had not planned when it initially proposed a death sentence. In the notice of intent to seek the death penalty, the reply noted, the government said that it would show as an act justifying such a sentence that Moussaoui had lied, and that act connected him with the deaths on Sept. 11. Now, according to the defense, the government is seeking an opportunity to prove that the deaths were due to Moussaoui’s failure to tell the truth. That would contradict his right to remain silent, the lawyers contended . . .

“While an incarcerated defendant may not lie to authorities, he certainly is not required to tell the truth, for he is not required to say anything,” the reply said. “It would be an extraorindary proposition — and like the Court, the defense is unaware of any such case — to execute a defendant for an omission, including his failure to take the affirmative step of telling the truth. But that is precisely what the government is now attempting to do…”

This is strong rhetoric in support of a freedom – the right to withhold life-saving information from the government – that probably finds little support among citizens. Indeed, the popularity of discussions of the “ticking time bomb” justification for torture suggests that most people don’t really believe there is a freedom to be silent when in possession of information that could prevent catastrophic crime. To the contrary, the overwhelming majority of the country seem to think that society has the moral right to compel the silent to speak. By compel, I mean inflicting extreme physical pain until you surrender your “determination, courage, and will,” and talk. (The quote is from the abstract to Michael Seidman’s forthcoming book, Silence and Freedom). Indeed, I imagine that most citizens would want to immunize officers in a real ticking bomb scenario were the tortured suspect die before speaking: thus, the freedom to be silent is, like all constitutional guarantees, contextually rooted at best.

That is, while I understand the legal basis behind Moussaoui’s motion, and I’m uncomfortable with the idea of an omission leading to an execution, I don’t think the defense struck quite the right note. The government has a powerful counter-narrative at hand: the Constitution does not celebrate silence in service of evil. Right?


The Necessity Defense?

You may be interested in reading this article from Hattiesburg American (Miss.) about the Sheriff Billy McGee, who has been charged with “intimidating and impeding a federal officer.” According to the article, in the aftermath of Hurricane Katrina, McGee “seized a pair of 18-wheelers full of ice from Camp Shelby without Federal Emergency Management Agency authorization” to obtain ice to preserve the insulin of local residents suffering from diabetes. Seems like a pretty clear cut case of a good necessity defense, but then again, it has been some time since I had criminal law. Maybe our new co-blogger and criminal law expert knows better?


Sexualizing Victims And Offenders

Rick Garnett blogged yesterday about a recent Eighth Circuit opinion in a sex abuse case. The appellate court reversed a trial court’s decision to close the courtroom during testimony of children allegedly abused by the defendant. A particularly interesting part of Judge Arnold’s short Sixth Amendment decision said:

The government implies in its brief that requiring children to testify in publicin this kind of case could only expose them to voyeuristic or prurient interests.

What did the government mean, exactly? Did it think that the defendant would get sexually excited during trial? Would pedophiles flock to the courthouse to witness the testimony?

I imagine that the government was suggesting that having a child testify about sex has the effect of sexualizing the child. Everyone watching this testimony, intentionally or not, would begin to see the child as a sex object. The government is probably right. Amy Adler has written a compelling piece arguing (in line with Judith Butler) that the criminalization of child pornography transforms images that would not otherwise be seen as sexual into sexual events. She suggests that, once we know child underwear ads might be pornographic, we’ll always look at these ads and ask: “is this this is a sexual image?” And of course once we ask that question, we’ve answered it.

In effect, the mere act of going to trial in a any sex crime case sexualizes the victim. We see that victim in his or her role as sexual object because that is how he or she is presented to us. If the right to a public trial is to have real meaning, Judge Arnold must be right that this phenomenon is no basis for closing a public trial.

This brings to mind an interesting post over at The Smoking Gun. TSG posted a series of mugshots under the heading “Foxy Felons.” One such canid, Casey Hicks, has threatened to sue TSG unless it removes her photo. It seems that she believes – based on blog commentary, no less – that TSG readers are using her photo for their own “private sexual gratification.” Perhaps Alabama, which is ever mindful of the dangers of sexual gratification, will add mugshots to its existing ban on sexual stimuli.


When Punishment Breeds Crime

The NY Times has an important article today about the extent to which ex-offenders are burdened by court costs. There have been some further comments on the issue here. I know what many folks will say: criminal offenders, not society, should pick up the secondary costs of their behavior. Clearly, it is appropriate for people who have money to pay for court costs and perhaps even the cost of incarceration. But most people who commit crimes are poor. So while justice may demand offenders to pay, common sense requires that courts be very careful in assesssing such charges.

There are at least two reasons why indigent offenders should be assessed minimal, if any, costs. First, as a practical matter, these individuals will take a very long time to pay up. In many cases, this means that they will remain on probation – with all the associated administrative costs – for longer than the sentence otherwise demands. (Probation often remains open until all costs are paid, irrespective of the underlying sentence.) Aggressive judges actually incarcerate offenders for non-payment when they find (sometimes incorrectly) that the offender had money but simply didn’t share it with the courts. Incarceration is incredibly pricey. It’s a reasonable expense to stop serious crime, but excessive when the only “crime” is a failure to contribute $100 to the public fisc.

A second problem with these fees, even for those who can marginally afford them, is that they can tip poor offenders over the brink. Among the poor, criminal convictions and incarceration create very dark economic futures. There has been some important literature showing that incarceration – and particularly the poverty that follows when offenders leave jail – damages offender communities and leads to further crimes spikes. This in turn leads to more incarceration. Ex-offenders are already saddled with a large bundle of economic and social sanctions, often termed collateral punishment or civil disabilities. They have trouble getting jobs, housing, licenses, and other things essential to earning a living. Earning a living, in turn, is typically a precondition for staying out of trouble. To the degree that these fees make economic survival more difficult, they are counterproductive: they produce crime.

This is not a bleeding heart versus tough love issue. It is a matter of pragmatism. Bernie Ebbers should share the costs of his trial and punishment if he has some cash lying about. But while there may be moral arguments for dunning the average John Doe, practical considerations suggest we shouldn’t.


Execution By Overdose

California is set to exceute Michael Morales tonight via a lethal overdose of barbiturates. This is hardly the glamorous end that most state legislatures have designed for convicted murderers. In years past, societies used corporal punishment – beatings, whippings, and the like – in response to crime. With the exception of the death penalty, American society has abandoned physical punishment, trading it in for incarceration. In the last century, we’ve struggled to figure out how to square the act of killing with this rejection of corporal punishment. We’ve often veered toward technological solutions, presumably because they appear less brutal – less like the destruction of a human body. Unfortunately, gas chambers echoed the tactics of Nazi Germany. Electric chairs just didn’t work that well and the explicit pain accompanying death gave lie to our claim that we no longer punish the body. Finally, we moved to lethal injection which fit in with the modern scientific obsession of the age: medicine. Lethal injection looked very advanced, using a three step process of anesthetic, paralytic agent, and heart stopper. It was supposed to be painless, closer to shutting down a machine than killing a person. In practice, however, this sophisticated medical treatment plan was not quite so antisceptic. Like all medicine, sometimes it worked poorly. Sometimes people regained consciousness in the middle of the process and suffered.

Last night, Morales was supposed to be executed by lethal injection. Judge Jeremy Fogel, concerned about the potential cruelty of this approach, required that the state have an anesthesiologist on hand to insure that Morales never regained consciousness. The appointed physicians rebelled, however, and would not assist in the execution. So California has chosen to overdose Morales on barbiturates. There is something very mundane about execution by overdose, in part perhaps because it is so simple that a person could do it himself. And indeed they do, every day. Society has grand hopes for the death penalty. We hope it will dramatically decrease murder rates. We think that it will provide a just response to a horrible crime. We feel it will make the victims, and indeed society at large, whole again. Compared to these grand designs, death by overdose seems very sad and small. Notwithstanding the national drama, Morales will die just like hundreds of other addicts around the country. I hope it gives the victim’s family some peace.


The Crime That Shouldn’t Bother “Us”

Milwaukee made the NYT today, but not in a good way. While the nation’s largest cities are seeing a drop in crime, other mid-sized cities are experiencing an increase in homicides. Milwaukee is one such city; 2005 saw 122 homicides compared with 88 in 2004. The increase in homicides is not due to gang-related violence or drug-related violence, however; the increase is almost all due to homicides that occurred during arguments over much smaller things, such as dirty looks or acts of “disrespect.” These homicides are limited to certain neighborhoods and usually involve individuals with criminal records.

The article doesn’t have a lot of answers as to reasons why this increase is happening. Milwaukee is a very segregated city, with a very high teenage pregnancy rate, a low high school graduation rate for African-American males, and a large racial education gap. With manufacturing leaving Milwaukee, the article suggests that lack of work opportunities in some neighborhoods have eliminated hope and possibly added to this “rage.”

What bothered me about the article was the whitewashing of the problem by city officials. (Yes, I guess all puns intended.) For example, the police chief in Charlotte, NC is quoted as saying: “It’s hard for people to look at it in depth and understand that they’re not likely to be a victim if they get along with their family members and neighbors and don’t live a high-risk lifestyle.” I’m not sure what the “high-risk lifestyle” is here. Being poor? Living in a high-risk neighborhood? LIving next door to people with crimnial records? Not everyone gets to move into more expensive, crime-free neighborhoods just by wishing. I’m sure this quote is taken out of context, but it smacks of “they’re just killing each other, so why should we care?”