Author: Kyle Graham


More “Strikes”: An Unintended Consequence of Realignment?

California’s counties are still figuring out how to adjust to “realignment,” the name given to the state’s efforts to comply with the judicial decree, upheld in Plata v. Schwarzenegger, that demands a reduction in the number of prisoners incarcerated in state prison.

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully offset the costs of housing a prisoner in local jail. Meanwhile, the state is guaranteed to foot the bill if a defendant goes to state prison.

2) Furthermore, local judges and district attorneys might be loathe to clog up their jails with prisoners who will be taking up space there for several years, as might be the case post-realignment. Among the reasons why, a substantial body of long-term occupants may make it more difficult to accommodate the daily ebb and tide of short-term detainees.  Plus, some judges and district attorneys may have a lingering sense that some defendants who historically would have gone to prison should still go to prison, which now may occur only if the defendant is convicted of a strike.

3) In many cases, district attorneys have substantial discretion whether to allege, and insist upon a conviction for, a “strike.” For example, under California law, assault with force likely to produce great bodily injury is not, by itself, a strike. However, assault with force likely to produce great bodily injury that does produce great bodily injury is a strike. The threshold that caselaw and legislative history set for “great bodily injury” is not as high as one might think; on the right (or, depending on your perspective, wrong) facts, a broken jaw may suffice. Appreciating that the low bar for this “strike” may lead to disproportionate punishment, district attorneys sometimes choose not to allege a great bodily injury enhancement even when it would be justified. In other cases, prosecutors agree to dismiss the enhancement as part of a plea deal.

Put these facts together, and it seems at least possible that realignment will spur local district attorneys’ offices to charge “strikes” more often, and to insist upon more “strike” convictions in plea negotiations.  (Somewhat similar dynamics also may cause local judges to “strike” [which essentially means to remove, for sentencing purposes] prior strikes less often.)  I don’t know that this will occur, but it seems like a conceivable, if unintended, outcome.

If this result obtains, one response might be to think harder about requiring counties to foot at least some of the bill for the incarceration of the defendants they send to state prison. My colleague David Ball suggests as much in his recent paper Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates —And Why it Should, which provides an interesting take on the subject.


“The Legal Elephant Parade That Is the Ninth Circuit”

In an editorial published yesterday, the Wall Street Journal casually referenced “the legal elephant parade that is the Ninth Circuit.”

Though the Journal gets points for originality, the wittiest critique of the United States Court of Appeals for the Ninth Circuit that I’ve heard remains a comment attributed to a district-court judge within the circuit.  This judge reported thusly on the status of a decision that had been appealed from his court to the judges above: “I’ve just been affirmed by the Ninth Circuit, but I still think I’m right.”

Interestingly, the quote immediately above seems to have originated with (or at least, been popularized by) Stanley Weigel, a rather liberal, now-deceased Kennedy appointee. More likely than not, to the extent that this comment provides some insight into the thoughts of its speaker, Weigel was lamenting the tendencies of the relatively conservative Ninth Circuit panels of a bygone era.


Barry Bonds: The Likely Sentence

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.


Ye Olde Professor’s Guide to Building an Exam Curve

Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, “You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.


The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.


Corpses, Families, and Property Rights

The Washington Post has reported how the incinerated partial remains of many American soldiers were dumped in a Virginia landfill. I’m not an expert on Virginia law, the Federal Tort Claims Act, or the Feres doctrine, and so I have no idea if the close relatives of these soldiers have viable claims for the negligent infliction of emotional distress (though if any commenters want to weigh in with their informed opinions, I’m all ears), and if so, against whom. What I do know, however, is how these claims likely would have been handled a century ago, had the government not been the defendant.

Back then, close family members of a decedent were regarded as having a property right in the corpse of their loved one. If the corpse had been improperly handled, they could sue and recover for infringements of this right. Unauthorized dissections, autopsies, and burials at sea provided the grounds for most of these lawsuits.

It sounds strange, today, to say that someone has a property right in someone else’s corpse. It sounded strange then, too, but the property right was a legal fiction that functioned as a work-around to avoid the then-prevailing general bar against recovery for “pure” negligent infliction of emotional distress.

Since the barriers against these recoveries have fallen (to a degree), the need for a separate corpse-mishandling tort has more or less disappeared. Just as it is slowly ushering of the tort of insult out the door, the Second Restatement of Torts half-heartedly relates a distinct rule for corpse-mishandling claims (at section 868, which provides, “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body”), but the drafters also observe that the cause of action is really one for emotional distress.  Underscoring the tort’s tenuous status, a tentative draft of the Second Restatement noted that it was “probably” desirable to maintain the separate treatment of corpse mishandling claims, “at least for this Restatement.”

(I promise to avoid connecting the news of the day with ancient tort theories from this point forward in my guest-blogging stint.  Unless, that is, Jennifer Aniston finally gets around to filing an alienation of affections lawsuit against Angelina Jolie, some celebrity gets sued for champerty, or Donald Trump finds himself on the receiving end of an ancient lights claim.)


Erin Andrews and Insult

Some of you may have seen that ESPN reporter Erin Andrews recently re-filed her civil lawsuit against a Nashville, Tennessee hotel for negligence and invasion of privacy. This lawsuit follows upon the surreptitious videotaping of Andrews by one Michael Barrett, named as a co-defendant in the case. Barrett has since been convicted of stalking, and has been sentenced to more than two years in prison.

In her complaint, Andrews alleges that the hotel acted negligently in at least three respects: it informed Barrett which room she was occupying, it allowed him to rent an adjoining room, and then it failed to discover that Barrett had altered the peephole of her door so as to allow his videotaping.

Do these facts, if shown, state a case for the jury?  Probably.  The closest case on point I could find (and I’ll admit, I didn’t look all that hard) is Carter v. Innisfree Hotel, Inc., a 1995 decision by the Alabama Supreme Court.  Addressing a lawsuit brought against a motel by two former guests, the Carter court found that triable issues of fact existed under both invasion of privacy and negligence theories after the plaintiff couple (1) reported that they heard suspicious noises emanating from a wall, (2) had sex, and then (3) later discovered, behind a mirror on the wall, a hole that could have been used to spy on them while they were fooling around.

Perhaps more interesting (at least to me; hey, I’m a law professor), in addressing the plaintiffs’ negligence cause of action, the Carter court relied heavily on old decisions that involved claims sounding in the archaic, now-moribund tort of insult. Insult cases were somewhat common a century ago. They are almost unheard-of today, at least as a cause of action distinct from negligence or intentional infliction of emotional distress (more on that below).

Back around 1900 or so, a claim for insult might lie when a railroad conductor in the Deep South directed a Caucasian passenger to a passenger car reserved for African-Americans; when a streetcar employee allowed a female customer to be harangued by her fellow passengers; or when a hotel detective spied on guests. The common facts being (1) a common carrier or innkeeper defendant, and (2) conduct that, while offensive given the place and time, did not have to rise to the level of outrageousness that we associate today with a viable claim for intentional infliction of emotional distress.

As I discussed a while back, insult disappeared as a distinct cause of action in part because much of its conceptual space came to be absorbed by negligence and the “new” tort of intentional infliction of emotional distress; it was basically caught in a no-man’s-land between these two expanding theories of liability. (Plus, maybe we’re simply more used to rude treatment by common carriers these days.)  The insult tort earned separate mention in the Restatement (Second) of Torts (at section 48, titled “Special Liability of Public Utility For Insults By Servants”), but just barely; today, it’s pretty much extinct as a distinct cause of action.  Instead, facts that once might have given rise to a cause of action for insult are now analyzed under generic negligence  or intentional infliction of emotional distress principles.

What does this mean for Erin Andrews, and her lawsuit?  Not a whole lot, I suppose.  At most, the existence of the cause of action and its echo in modern precedent underscore the heightened responsibilities of hotels and innkeepers, even under negligence doctrine.  But given all of the other interesting aspects of her case, it would almost be too much for an archaic tort theory to also be in the mix.


A Century and a Quarter of Law School Examinations

Earlier this year, Harvard Law School posted examinations given at the institution between 1871 and 1995. I spent a little time the other day skimming through them, concentrating on examinations given in Torts and Constitutional Law courses.

With Torts, as with other classes, the most obvious change involved the gradual lengthening of exam questions. Gone are the days when a professor could ask, “What is an assault? How does it differ from a battery?,” questions posed on this 1871 Torts exam. But more than the questions have changed; one also can detect many shifts in the substantive law by reviewing the tests.

For example, old Torts exams concentrated upon the intentional torts. Of the 14 questions on the 1871 examination, four involved trespass; two, defamation; and there were also questions on nuisance, conversion, assault and battery, false imprisonment, fraud, and malicious prosecution. Modern tests, as one would expect, are much more concerned with the nuances of negligence doctrine.

The exams also illustrate how a given issue may “move” from one area of law to another, as time passes and new fields emerge. Some questions in early Torts exams would today seem much more at home in a Criminal Procedure or Antitrust final. (Consider, for instance, the 1873-1874 Torts question, “When can an officer arrest without a warrant, and when can a private person arrest without a warrant?”)

Trends aside, some of the most interesting questions in old exams were wholly topical at the time they were written. Professor James Thayer’s Constitutional Law examinations, in particular, skewed toward current events. Take, for example, this question, from an examination given during the 1881–82 academic year: “Could Guiteau have waived a jury? Would it make any difference if we suppose a statute purporting to authorize this? Why?” Guiteau, of course, was the (likely deranged) assassin of President James Garfield.

Or this, from Thayer’s 1896–97 examination (with my apologies for the incorporated language, which was, of course, a product of the time): “The State of X forbids the carrying of negroes or other colored persons and whites as passengers in the same car on any railroad in the State. In returning from a “Parliament of Religions” at Chicago, a Hindoo, a Moor, an Ethiopian and Mr. Booker Washington had taken passage from Chicago on a through train, making no separation of passengers, to a point requiring them to pass through State X. On reaching the line of that State, these travelers were all required to shift into a car for negroes. They refuse to go and were ejected from the train. In an action for assault against the conductor the question is raised of the constitutionality of the State law. How should the question be decided? Why?”

Sound somewhat familiar?  Personally, I find this question interesting mostly because Thayer tees up the issue by way of an assault action. But then, I teach Torts.


My Holiday Card to Concurring Opinions Readers


Final Examination
Professor Graham
Holiday 2011 Semester


1. You have three hours to complete the exam,
which consists of a single question.

2. This is a closed-book exam.

3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.

4. Good luck!


On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.

As Santa prepared to board his sleigh, he slipped and fell on an icy shingle. Santa tumbled down the roof and crashed into the bushes below, hurting his back. Mr. Adams had seen the ice on his roof earlier that day, but decided not to clear it off; the task seemed like a lot of work, it was cold outside, and there was a good football game on TV. As Santa lay injured in the bushes, a partially unwrapped gift—a Chia Pet—inexplicably fell from (or was disgustedly tossed out of) a window at the Adams residence, and clobbered Santa on the head.

The tumult caused Santa’s reindeer to panic and fly off without him. The out-of-control reindeer and sleigh crashed into and pulverized the chimney at the nearby Batista household. Meanwhile, the Chen and Davis children had been “nice” this year, but received no presents due to Santa’s injury and the runaway sleigh. Believing that Santa considered them “naughty,” the Chen and Davis kids suffered serious emotional distress.

Later that night, one of the gifts that Santa had left for the Adams family, a Sniggie® blanket (like a Snuggie, only cheaper), spontaneously burst into flames. The ensuing fire burnt the Adams house down to the ground.

Finally, the events related above caused some scales to topple onto a woman standing at a train station in Brooklyn.

Identify and evaluate the torts implicated by the foregoing facts, taking care to consider, inter alia:

1) Whether Santa is best classified as an invitee, licensee, or trespasser at the Adams household, assuming that the State of Confusion continues to adhere to these categories;

2) Whether the doctrine of res ipsa loquitur applies to the defenestrated Chia Pet;

3) Whether Santa would be liable for the chimney damage in a “fence out” jurisdiction;

4) Whether any duty existed to protect the Chen and Davis children from the harms that they suffered; and

5) Whether Santa can be held strictly liable as a “distributor” of the defective Sniggie® blanket.

Happy Holidays!


Goodwin Liu’s First Three Months on the California Supreme Court

Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”


Sandusky’s Law

In the wake of the Penn State child-abuse scandal, authorities in several states have considered toughened and broader mandatory-reporting laws. These laws impose criminal penalties on certain adults, such as teachers and social workers, who fail to report known or suspected child abuse to the police.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be surprised by how small a portion of any criminal code drives a very large percentage of the overall criminal docket.  To illustrate this point, a while back, in connection with some other research I am pursuing, I performed a back-of-the-envelope exercise using charging data collected from the Executive Office for United States Attorneys (EOUSA) Central Charge file for federal criminal cases that terminated in Fiscal Year 2009 (October 1, 2008 to September 30, 2009). I wanted to see (1) how many different crimes were encompassed within this dataset and (2) the number of crimes that accounted for 50,75, 90, 95 and 99 percent of these charges. (Here, keep in mind that, at least according to one source, as of 2008 there were an estimated 4,450 crimes across the federal criminal “code.” Though, in truth, no one really knows for sure, and much depends on how you go about identifying distinct “crimes.”)

Overall, the EOUSA data for federal criminal cases terminating in FY 2009 identify 1,547 distinct crimes as having been alleged in these cases.  This sounds like a lot, but keep in mind the 4,450-crime figure cited earlier; even acknowledging the apples-to-oranges comparison issue, it’s obvious that many—almost certainly most—federal crimes were not alleged in even a single one of these cases.

Of the crimes that were charged, just 14 accounted for 50.6 percent of the 191,884 counts in the FY 2009 dataset. They are, in descending order of frequency, 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1); 8 U.S.C. § 1326(a); 18 U.S.C. § 1343; 18 U.S.C. § 1341; 21 U.S.C. § 841; 18 U.S.C. § 1344; 18 U.S.C. § 371; 8 U.S.C. § 1324(a)(1)(A)(ii); 18 U.S.C. § 924(c); 8 U.S.C. § 1324(a)(1)(A)(iv); and 18 U.S.C. § 1347. Few surprises here; drug crimes, felony re-entry, gun crimes, and fraud offenses represent federal prosecutors’ bread and butter.  (The fraud crimes are over-represented in this dataset relative to the number of defendants charged with these offenses, since a given case many involve dozens of fraud counts.) Meanwhile, just 61 crimes accounted for 75 percent of all counts; 164 crimes, 90 percent of all counts; 291 crimes, 95 percent of all counts, and 699 crimes, 99 percent of all counts.

I appreciate that this is a very rough exercise, to be viewed with a hefty pinch of salt.  To repeat, what may represent a single crime to one observer may constitute multiple offenses to another, and I did not review the dataset carefully to grasp the logic behind its crime-coding system (thus, for example, I don’t know why the EOUSA database distinguishes between 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841), or the accuracy of the data presented.

Nevertheless, even this simplistic inquiry underscores an important, and I believe incontestable, point: Vast portions of any criminal code are effectively inert.  My guess is that any new Sandusky’s Laws will join this moribund lot.

(This exercise used the following dataset: United States Department of Justice, Office of Justice Statistics, Bureau of Justice Statistics, Federal Justice Statistics Program: Charges Filed Against Defendants in Criminal Cases in District Court – 2009 (Study 30789).)