Category: Criminal Law


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?”


Man Bites Dog? Rational Discussion About Sex Offenders Begins

I want to amplify Doug Berman’s post today about a new statement from the Iowa County Attorney’s Association. The group – which as best as I can tell includes the county attorney from each Iowa county – has taken a position opposing Iowa’s sex offender residency restrictions. It argues that the state’s law prohibiting sex offenders from living within 2000 feet of schools and child care facilities is actually counter-productive. In particular, rather than keeping offenders away from kids, it is both ineffective (most offenses occur against relatives and acquaintances, not strangers) and actively increases risk (by rendering offenders homeless and less subject to tracking). At the same time it imposes additional costs that are either unjustified or increase risk in their own right (such as damaging family structures.) The Association offers some policy alternative they see as a more effective responses to sex offenders. Read the whole statement here.

It is heartening to see rational policy debate creep into what has otherwise been the land of moral panic: regulation of sex offenders. Brutal retaliation against such offenders may make people feel safer as they watch hour after hour of reality TV. There is little evidence of the efficacy of most of these regulations, however, and they exact serious costs.


Walking While Drunk

A colleague of mine chooses to start her day by reviewing the list of new detainees in the Tucaloosa County Jail. As my prior work indicates – particularly my study of the race effects of Megan’s Law – I too have a passion for studying on-line databases of criminals. I thus listen closely as she describes the quirks of the daily intake. Yesterday, she discovered a gentleman who had been booked on the charge of being a Pedestrian Under the Influence of Alcohol (Alabama Code 32-5A-221). Alabama law provides that “a pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway.” A highway, in turn, is “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Alabama Code 32-1-1.1.

I must admit my experience with motor vehicle offenses is thin (and this offense is under the motor vehicle section of the state code), but this was the first time I’d ever encountered a Walking While Drunk statute. Turns out, they are a standard part of the Uniforn Vehicle Code. Alabama is a little tougher than the folks over at the National Committee on Uniform Traffic Laws and Ordinances. (Query: what individuals choose to join this group for $100?). The Uniform Code provision provides that pedestrians “under the influence of alcohol or any drug to a degree which renders such pedestrian a hazard shall not walk or be upon a highway except on a sidewalk.” Alabama has no sidewalk exception.

It looks to me like there might be cases where a sidewalk is part of a highway (i.e., where it is a publicly maintained sidewalk within the boundary way. I’m thinking, for example, of sidewalks on bridges, and perhaps along parks.) In addition, since most Alabma roads are sidewalk-free, pedestrians must often walk on the shoulder. I know it may be a bit of a hazard, sometimes, but I suspect we’d prefer our local drunks to walk, rather than drive, home. Personally, I’ll think twice before I quaff a couple of Guinnesses (Rick Garnett has linked to an attractive establishment for this purpose) and stroll back to my humble abode. At minimum, I’ll try to stumble along privately maintained sidewalks.


Justice for Joni

Orin Kerr has a great post about a habeas opinion authored by Judge Kosinski on the Ninth Circuit. I’ll leave out the fine detais – which are hammered and hammered and hammered out in some of the better blog comments I’ve seen – but the basic idea is this. A woman named Joni Goldyn wrote five checks on an empty account that was backed by a check guarantee card issued by the bank. Under Nevada’s reading of their Drawing and Passing Checks with Insufficient Funds on Deposit statute, that was a crime. Since she had previously been convicted of three felonies and one gross misdemeanor, all related to fraud, she got five life sentences. After twelve years in prison, she was paroled. The court found that she had been convicted for an act that was not illegal. The debate over at House-o-Volokh is whether Kosinski had to fudge the law to grant the writ of habeas corpus. The court’s most controversial move was its decision to interpret a statute according to its plain text, ignoring a state Supreme Court decision taking a different position on the statute’s meaning.

The problem in the habeas context is two-fold. First, federal courts are typically not in a position to give meaning to a statute contrary to that already provided by a state court. Second, a federal court can only grant a writ where federal law has been violated. Kosinski made the case for granting the writ, but as the discussion in Orin’s post and comments shows, it was a fairly activist move. I don’t think many people would have predicted that a court – even the generous Ninth Circuit – would grant the writ.

For me, though, this case set me wondering what sort of person would get such active assistance in habeas, from Judge Kosinski no less. Our petitioner here was a woman with a gambling problem, according to press accounts. She was clearly involved in misconduct – essentially, she defrauded the bank. She served 12 years, but had been paroled several years ago. The offender wasn’t an innocent nor was she still in prison. The case was in a habeas posture. This matter simply did not scream out for active intervention. So why did the court do it?

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Criminal Prosecution for Scientific Fraud


I spoke to a reporter at the end of last week about the criminal prosecution of scientific fraud. I’m not sure how coherent my end of the conversation was at the time, but I thought the topic was interesting enough to return to it briefly here.

Let’s put aside potential investigations and prosecutions by the federal Office of Research Integrity (part of DHHS). Granted, the ORI has claimed an extraordinarily broad mandate (funded and unfunded applications!), which might be worth returning to one day. But on the whole, such cases seem to me to be a fairly mundane application of the general contract fraud principles.

Instead, I’ll concentrate on a free-floating action in fraud against a scientific investigator for having misled potential patients. Thus, consider the scenario of a doctor faking an experiment to show that Drug X prevents heart attacks and has no side effects, when, in fact, it has no preventative powers, and it causes immediate hair loss. Is that doctor criminally liable? Civilly?

I’d guess that to the extent that general fraud often requires an intent-to-induce element, most scientists would be able to successfully assert that they did not intend for patients to rely on their work. In the civil context, I also assume that a consumer’s action would fail on the “justifiable reliance” end. If this weren’t true, I imagine that most scientific papers would end with a disclaimer that they are not intended to be relied upon, and that patients ought to consult their physicians (etc.)

But let’s put aside the doctrine for a moment and consider the policy arguments for attacking scientific fraud with prosecution. There are at least two reasons to think this is a bad idea (again, apart from the government-contract fraud case).

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Taking Supermax Seriously

supermax.jpgJustice Posner’s description of a Supermax prison, in Scarver v. Litscher rekindled my discomfort with such facilities. Posner draws a clear picture of life at the prison’s “Level One” where all prisoners begin their stay and some continue for several months:

Inmates…are locked in windowless single-person cells for all but four hours of the week; the four hours are for recreation in a small windowless room not much larger than the cells. The cells are illuminated 24 hours a day so that the guards can watch the inmates, although they glance in only intermittently. The cells are not air-conditioned, and so, being windowless, they become extremely hot during the summer–the heat index sometimes rises above 100 degrees, and often above 90. The inmates are not allowed to have mechanical or electronic possessions, such as a television set, a clock, or even a watch–just one religious text, one box of legal documents, and 25 personal letters.

Perhaps it reflects my own lack of an inner life, but this sounds like hell on earth. I think I would quickly go mad in that little box. Although Level One is clearly the worst of the worst, it appears – looking over some of the prison handbooks for Level 2 – 5, available here – that life in the Supermax doesn’t get hugely better. Although Level 5 offers a small TV, you’re still locked in that room almost all day and night.

This all brings up two issues. First, is Supermax punishment so cruel that it is inherently unconstitutional? Second, even if not, should legislatures have to specifically authorize Supermax sentences for particular crimes?

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