The Rise of Automated Policing

Scholars analyzing immigration enforcement often do so in a way that treats the matter as separate from more general trends and developments in law enforcement. In fact, however, many of the trends in immigration enforcement are mutually reinforcing of, and in evidence throughout, various law enforcement domains. Anil Kalhan neatly captures that reality in his article Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy. In so doing, he opens up a discussion that has significant implications for both criminal justice and immigration law scholarship.

In his article, Kalhan critiques the phenomenon that he labels “automated immigration policing.” As he defines them, “[a]utomated immigration policing initiatives deploy interoperable database systems and other technologies to automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary law enforcement encounters and other moments of day-to-day life.” (P. 1108.) As his article makes amply clear, reliance on automated-policing techniques is not limited to immigration policing. He draws upon the work of numerous federalism, privacy, and criminal procedure scholars to highlight the ways in which automated immigration policing is of a piece with general developments in governmental surveillance and law enforcement.  In immigration policing, as in other law enforcement endeavors, a broad—and elastic—range of law enforcement agents access growing stores of personal data accumulated by local, state, federal, and private actors, in the service of multifarious and open-ended law enforcement ends.

Kalhan argues that “[b]y using technology to make determinations of immigration status and the collection, storage, and dissemination of personal information for immigration enforcement purposes automatic, widespread, and continuous, automated immigration policing effects a basic shift in the nature of both ‘immigration federalism’ and ordinary law enforcement activities.” (P. 1109.) To illustrate his point, Kalhan begins by examining the history of state and local participation in immigration policing. He argues that, notwithstanding the rhetoric of the Court’s recent decision in U.S. v. Arizona, over the past two decades, an equilibrium had developed that allowed states and localities to opt into immigration policing under the supervision of the federal government. This equilibrium also created space for states and localities to develop integrationist policies and to opt out of cooperative immigration enforcement. He argues that recent developments have undercut that equilibrium. Federal automated immigration policing initiatives, including the Secure Communities program and the National Crime Information Center’s (NCIC) Immigration Violators File, undermine this equilibrium by making “immigration status determinations by law enforcement automatic, pervasive, and effectively mandatory.” (P. 1110.) With the national implementation of Secure Communities, every arrestee is automatically checked against a DHS database for potential immigration violations. The NCIC Immigration Violators File reveals immigration status to any officer running standard database checks, whether or not that information is desired or sought by the officer, her supervisors, or the local electorate.

Kalhan’s insight is that what is happening in immigration policing is part of a much-broader trend toward automated policing and that it carries many of the same downside risks, including the “costs [that] arise from the inherent fallibilities of automation, the tendency of surveillance mechanisms to be used for purposes beyond those for which they were initially implemented, the displacement of state and local control over information that states and localities collect and share with federal authorities, and the (negative) everyday effects of these initiatives on both law enforcement agencies and the communities being monitored.” (P. 1110.) In the article, he elaborates upon each of these risks in some detail. The problems that Kalhan identifies have been noted and theorized in other contexts—particularly by scholars focused on issues of privacy and constitutional criminal procedural protections—but Kalhan’s article performs a significant service in analyzing immigration enforcement through these existing lenses. Drawing upon the works of immigration scholars, Kalhan points out that the downsides of this method of policing are amplified in the context of immigration policing, “given the heightened vulnerabilities of noncitizens and the limited procedural protections afforded in immigration proceedings.” (Pp. 1134–35.)

Kalhan’s critique forms an important part of a broader discourse concerning the failure of courts to properly conceptualize automated policing systems and the use of big data in policing. Parallels can be seen, for example, in Erin Murphy’s recent analysis of Maryland v. King. Murphy criticized the Court’s application of the Fourth Amendment in a case involving the DNA swabbing of an arrestee. Among other things, she lamented the fact that the Court’s analysis treated this type of investigation as “discretionless,” when in fact the precipitating arrest and charging decisions are nothing if not discretionary.1 In the same way, Kalhan notes (with a hat-tip to Hiroshi Motomura) that the government has promoted the Secure Communities program as eliminating state and local police discretion in immigration screening, when in fact, the “discretion that matters” lies entirely in the hands of officers who can and sometimes do exercise this discretion in ways that undermine equal protection goals. (P. 1141.) In another parallel, Murphy critiques King, and the Court’s recent Fourth Amendment jurisprudence more generally, for failing to adequately address the risks and harms created by governmental databases and for being overconfident in the infallibility and accuracy of those databases.2 Kalhan’s article not only points out that this is also a problem in immigration databases but also illustrates how that problem has spillover effects into general crime control efforts and affects citizens as well as noncitizens. (Pp. 1136–41.) In short, the inadequacies of the Fourth Amendment doctrine to deal with shifts in policing tactics are alive and well in the context of immigration policing.

To address the equal protection, privacy, liberty and federalism concerns that are raised by automated immigration policing, Kalhan ends his article with some suggestions. He calls for “context-appropriate constraints on the collection, use, storage, and dissemination of personal information for immigration enforcement purposes, including limits on secondary uses of information that were not originally contemplated.” (P. 1157.) He also calls for giving states and localities a greater ability to limit the ways in which they use immigration data in policing (P. 1160) and for increasing transparency, oversight, and accountability of automated policing practices. (P. 1162.) These suggestions echo many that have been made in the context of more general policing policies. But far from being duplicative, Kalhan’s work highlights the importance of looking beyond core policing functions to understand the potential scope and the full risks of automated-policing practices.

  1. Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161, 188–91 (2013). []
  2. Murphy, supra note 1, at 194–96. []

Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform

Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012).

Despite reforms in the elements and evidentiary rules concerning rape and sexual assault crimes, successful prosecutions often face more practical narrative problems in convincing the jury of the credibility of complainants when the timing and manner of their accusation falls outside of how jurors may imagine the normal rape survivor would present herself to authorities. The proper place of psychiatric and psychological expertise about what is sometimes denominated “rape trauma syndrome” in trials and proper instruction of jurors in those trials has been the subject of serious critical debate among feminist legal scholars and rape survivors for twenty years. The sharp question of whether individual rape survivors or rape survivors as a class benefit from the ability to describe the rape survivor whose complaint comes “late” or is delivered in a flat and calm affect to police or medical authorities as suffering from a syndrome remains unresolved, and the same dilemma emerges in the domestic violence realm with “battered women’s syndrome evidence.”

Yxta Maya Murray brings us into this long and always troubling debate quite literally with the example of British artist and rape survivor Tracey Emin, whose work is both quoted and depicted in rare law review color photos. This article stands out amongst the many great criminal law articles that I’ve read in the past couple of years because it combines empirical social science, art, and humanities analysis, which gives us new purchase on concrete legal questions that have already received a great deal of both conceptual and empirical research.

The background empirical facts go to the troubling persistence of limited reporting of rapes and sexual assaults in both the US and England, despite decades of official cultural work to validate rape survivors. Perhaps more troubling—even when women victims do report—careful empirical analysis of case survival in several common law countries shows a strikingly high level of case deterioration and termination at both investigatory and prosecutorial stages. Both qualitative and survey research suggests that hostile, or at least insensitive, treatment by frontline workers in both the medical and legal settings is a major contributor to case failure in common law legal systems despite the substantial legal reforms. Evidence suggests this hostility and insensitivity is considerably more acute for victims of color, for those who are homeless, living with mental illness or addiction, gender non-conforming, or are sex workers—factors that can be additive.

In bringing Tracey Emin’s story and art to the discussion, Murray helps to directly address one of the concerns expressed by feminist critics of rape trauma syndrome evidence as it is currently narrated in courts: RTS accepts a normal rape survivor profile drawn disproportionately from victims who are relatively privileged in terms of the variables highlighted above. The product of a longtime affair between her white English working-class mother and her married Turkish immigrant entrepreneur father, Emin and her twin brother grew up facing harsh racial discrimination in a working-class English town during the 1960s and early 1970s. Emin survived repeated sexual assaults as a child at the hands of one of her mother’s lovers (“Chris” who is also called “sex man” in some of Emin’s powerful works of textual art) and at age 13 by a teenaged boy who dragged her down an alley and raped her a few minutes before midnight on a New Year’s Eve as she hurried to get to a local nightclub. After struggling to regain her sense of self through a period of promiscuity and suffering from more rejection and the humiliation of her local peers, Emin eventually won international recognition for a body of highly unconventional genre-crossing art work.

Murray reads Emin’s multiple references to her rapes and her direct calling out of her rapists as, in effect, an imaginary trial, or series of trials, to replace the state criminal justice system that she never sought or received from the English state. These works, some pictorial, others quilts with words, and several hand-written pieces of paper, testify to the assaults and the contexts which enabled them. They also bring us the words of her rapists, who as defendants would likely not have taken the stand, and the real “defenses” they would have relied on to win jury sympathy, many of them turning on the uniquely English misogynist phrase “slag” for a degraded woman who presumably wants or deserves the violent sexual assault she is receiving.

Emin’s work clearly does not constitute a realistic depiction of a rape trial in either England or the United States, but it does give us an aspect of the rape survivor experience that explains the absence of other survivors like Tracey Emin in real trials (which Emin never sought). For those survivors, the prospect of rejection, hostility, or even more violence from the state and its frontline workers overwhelms any promise that the gentler treatment later in court can hope to assuage.

If Emin’s art is her own way to use the trial as a form of ordeal to both seek public justice and heal, she and Professor Murray point us to a different way of understanding the work of those survivors today who do submit themselves to the ordeals involved in even the earliest stages of the legal production of a sexual assault case. Consider the powerful tide of concern among rape survivors and their advocates that has arisen around the accumulation of untested rape kits in American police crime labs. Against the apparent reluctance of legal authorities to pay for testing for DNA in cases that either do not progress or will not turn on a question of identity, many survivors clearly view those kits as a form of public truth that they have gone through a great ordeal to produce.

In the end, the implications Murray draws out for the debate about rape trauma syndrome testimony is a modest but subtle and original one. If the goal is to explain survivor non-conformity, then, victims like Tracey Emin let their subjected position be a creation rather than a pathology; a stoicism willed to protect and ready the survivor for the difficult course of public justice seeking. Those insights are important, but so is the experiment of looking to art in dialog with social science findings to understand the stakes for law.


Andrew Taslitz

Andrew Taslitz

With sadness we note the passing of Jotwell criminal law co-editor Andrew Taslitz who has died at age 57.  (See his obituary here.) Andrew was a graduate of Queens College and the University of Pennsylvania Law School.  After a practice career with the Philadelphia District Attorney’s Office, and in private practice, Andrew spent 23 years at Howard University School of Law.  He joined the law faculty at American University in 2012.  Andrew’s teaching included evidence, criminal procedure, and criminal law.  His scholarship dealt centrally with criminal law and procedure including one book on legal history, Reconstructing the Fourth Amendment: A History of 1789-1868 (2009), as well as Rape and the Culture of the Court Room (1999) and dozens of articles on criminal procedure and criminal law.  One of the most admired criminal law teachers of our time, Andrew’s passion for law and its reform were evident to his students, colleagues, and many readers.


Rethinking Domestic Violence, Rethinking Violence

For decades, I have felt quite Janus-faced about gender crime laws. My feminist face cringes at the thought of widespread sexual and nonsexual violence against women occurring with utter impunity. My anti-authoritarian face furrows in consternation at reports of mass incarceration, prison abuses, and authoritarian police and prosecuting norms. This personal philosophical dissonance has led me on a quest to figure out whether the United States’s penal system holds any liberatory potential for women, and, if not, what can be done about violent gender subordination. In this vein, I have sought out scholarship that neither repeats the battered women advocates’ mantra that there should be “zero tolerance” for gender crime, nor holds to liberal ideals that instinctively prioritize “neutral” (defendants’) rights. This led me to Leigh Goodmark’s complex, insightful, and no doubt controversial book, A Troubled Marriage: Domestic Violence and the Legal System. The book is meticulous in its research, spanning decades of historical developments in the law of intimate abuse. It brings together many strains of feminist and criminal law theory to formulate a comprehensive re-envisioning of the domestic violence law reform project.

The book consists of two main interventions―a theoretical intervention and a practical intervention. Theoretically, the book critiques “dominance feminism,” a brand of feminist legal theory developed primarily by Catharine MacKinnon, for steering the anti-abuse movement in a prosecutorial direction. While MacKinnon’s writings have far less to do with domestic violence than with rape, pornography, and sexual harassment, the book makes a compelling case that dominance feminism-type ideas were highly influential in the domestic violence arena. Practically, the book calls for “antiessentialist” domestic violence law and policy, meaning that domestic violence reform must be disentangled from popular reductionist characterizations of battered women as non-poor white women subject to brutal violence, who have tried unsuccessfully to separate in the past, and desire batterers’ incarceration but are too afraid to pursue prosecution. For Goodmark, rejecting essentialist images necessitates rejection of most state punitive responses to intimate abuse. The book accordingly advocates reforms “outside the criminal law,” such as truth commissions, batterer inventions, and even microfinance.

Goodmark is ultimately a pragmatist. She seeks solutions that “work”―solutions that can simultaneously honor victims’ choices, curb abuse, and improve the lived reality of subaltern women (and men). Although the book tends to emphasize strategies for curtailing violence, it does hint at a radical framing of the ways in which the domestic violence story exemplifies larger subordinating shifts in American penal law and policy. Thus, I appreciate the book’s potential to illuminate connections between the trajectory of domestic violence reform and greater hegemonic forces in the U.S. carceral state. For example, the book’s critique of dominance feminism is a trenchant rejection of the feminist embrace of state authoritarian power. The book echoes the nascent critique of “governance feminism,” which Janet Halley et al. describe as “very state-centered, top-down, sovereigntist” feminism that “emphasizes criminal enforcement” and “envisions the legal levers it pulls as activating a highly monolithic and state-centered form of power.”1 There is indeed something aesthetically disturbing about a progressive anti-subordination movement (feminism) embracing a system maintained by the powerful and privileged (the criminal system) that has the effect of subordinating the worst off (poor men of color), and then writing off any women’s opposition to the system as mere “false consciousness.” Moreover, the book notes that, as a practical matter, the criminal system’s tendency to create dystopian neighborhoods and exacerbate the effects of socio-economic degradation, makes criminal law a likely cause of, not solution to, domestic abuse.

One of the most exciting aspects of the book is its treatment of the concept of violence. The book is very thoughtful about violence in its taxonomy of different types of abusive relationships and seeks to disaggregate violence and abuse. One of my favorite parts of the book is when it describes how relationships with violence might not be abusive and certain abusive relationships may not involve violence. Discussions like this pave the way for criminal law theorists to ruminate in a deeper way about the political work that the concept of policing “violence” is doing. The idea of curbing violence gives a trump card to the state. Police authority goes virtually unexamined when private violence is at stake. But within our current cultural context, violence has a very particular meaning. The state is concerned with lashing-out, intense, physical violence and violence that accompanies street and drug crime. The state is distinctly unconcerned with the slow violence and death that institutionalized inequality causes to certain groups. Criminal laws intended to stop “epidemics of violence” have absolutely nothing to do with the violence of systematic and virtually invisible conditions of subordination. If anything, the criminal system is constitutive of such violence. So, it seems to me, policing violence is really about policing a certain type of harm that is largely produced by disempowered lower class men (and, if Goodmark’s description is correct, women).

I have concentrated my comments here on the book’s connection to the larger critiques of the American criminal system in which I am interested. But the book will appeal to more than just post-modern and sociological critics of penal authority. This “antiessentialist” book is essential reading for anyone interested in understanding the politics, policies, laws, and history of intimate abuse in late modern America.

  1. See Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335, 341 (2006). []

Does Becoming a Party to the International Criminal Court (ICC) Have a Positive Effect on Regulating Violence Against Women in Domestic Law?

Fionnuala D. Ní Aoláin, Gendered Harms and Their Interface with International Criminal Law: Norms, Challenges and Domestication, Minnesota Legal Studies Research Paper No. 13-19 (2013), available at SSRN.

Expanding legal definitions and the enforcement of rape and domestic violence laws have been a major focus of the feminist agenda for decades, not only in the United States but also around the world. While we tend to think of such crimes in national terms, Fionnuala Ní Aoláin, currently the Dorsey and Whitney Professor of Law at the University of Minnesota Law School and Co-Director of the University of Ulster Transitional Justice Institute in Northern Ireland, looks at these crimes more broadly to suggest that developing international criminal norms about rape may have a positive impact on developing more robust domestic law. Professor Ní Aoláin’s work in the fields of human rights and sex-based violence in times of war has been widely recognized, and the Irish government has twice nominated her to the European Court of Human Rights.

This working paper does not analyze legal issues in the United States. However, the use of international human rights law to affect a paradigm shift in analyzing domestic violence cases and other gendered crimes such as trafficking is a hot topic in the United States since the 2011 decision in Jessica Lenahan (Gonzales) v. United States by the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), which held the U.S. responsible for human rights violations in domestic violence settings. The United States government participated in that litigation pursuant to our ratification of the American Declaration of the Rights and Duties of Man (American Declaration). While we have not signed on to the International Criminal Court, which is the focus of Professor Ní Aoláin’s current article, her insightful analysis confirms that efforts to encourage signing and ratification of international criminal and human rights treaties should remain a priority here for those who hope to promote domestic law reform punishing all forms of violence against women.

The article begins by recognizing the debate between feminists who question whether the criminal justice system can ever provide “transformative” change and those who believe it can provide substantial gains for women. To determine if there is a “synergy” between ratification of the ICC statute and domestic legislation directed to violence against women, she surveys all of the signatories to the ICC statute to see if they later adopted domestic legislation affecting women. To provide context, the article discusses historical efforts to obtain recognition of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization as sanctionable crimes of war, and trafficking as a crime at any time, and the “lightening speed” with which international law has come to define such crimes and obtain high profile convictions. Ratification of the ICC statute requires prosecution of the defined crimes nationally, and her survey reveals significant adoption of domestic laws related to sexual violence, trafficking, stalking, and domestic violence, suggesting that ratification may have been more effective than decades of feminist advocacy. However, Professor Ní Aoláin notes that divorcing extraordinary wartime acts from ordinary crimes of sexual violence may limit enforcement and become a way to deflect attention from systematic violence against women. In other words, the normative expansion of rape in international law does not guarantee effective enforcement either internationally or in domestic law. Moreover, practical realities exist such as ensuring that women feel safe to testify, even when the typically male investigators and prosecutors are willing to take legal action.

Professor Ní Aoláin admits that more detailed empirical analysis is necessary to prove a direct link between ICC ratification and adoption of domestic laws against sexual crimes, and certainly a deeper analysis is warranted concerning timing and content of domestic legislation. Yet it seems intuitive that if there is enough impetus to become a member of the ICC, efforts to lobby for domestic laws to complement the international obligation would likely receive a more welcome hearing, even though she finds little evidence that international lobbying intersects with domestic law reform efforts. At a minimum, she concludes that ICC ratification creates an opportunity to remedy contradictory domestic norms and to promote other efforts at reform. The Professor does not assume that domestic progress is quick or inevitable, describing experiences n Canada, Australia, and the United Kingdom, which have robust legal systems, but still evince low victim reporting, low conviction rates, and uneven sentencing practices. However, even those jurisdictions were able to create new definitions of rape after adoption of the ICC statute. The article understandably raises more questions than it answers, but that is the point: To open a new area for analysis about whether symbolic gains actually may have more immediate results in changing entrenched sexist views that hinder local reform.

Editors’ Note: It is with great sadness that the editors note the death of Myrna Raeder, a founding co-editor of the Jotwell criminal law section. Myrna, a professor at Southwestern University School of Law since 1979, was one of the nation’s premier scholars of women as victims and offenders in the criminal justice system. Her pioneering scholarship on the impact on women of mandatory federal sentencing guidelines and the harms of incarceration for convicted women and children brought a much-needed critical gender lens to legal scholarship in crime and criminology. Her work on evidence issues in domestic violence cases was part of the great wave of research and activism that helped move domestic violence from the margins of crime policy and transformed law all over the country. Myrna was also an early and persuasive critic of the way women were being criminalized by some of the very same reforms and distinctly disadvantaged by the national turn toward non-individualized retributive sentencing. Myrna enriched our field both substantively and intellectually. She was the first woman to chair the ABA Criminal Justice Section and she served as chair of both the Evidence Section and the Women in Legal Education Section of the AALS. Honored by the ABA with their Margaret Brent Women of Achievement Award in 2002, Myrna will be greatly missed.


Punishing Taxpayers for Erroneous Convictions

Andrew Chongseh Kim, Beyond Finality: How Making Criminal Judgments Less Final Can Further the Interests of Finality, 2014 Utah L. Rev. (forthcoming), available at SSRN.

Appellate courts often adjudicate as if prison is free. While no doubt many judges and justices are concerned with the accuracy and fairness of the convictions they review, at least to a degree, they also make economic judgments as if the costs at issue were principally borne by the judiciary. Criminal defendants can lose appeals not because their claims are meritless, but because the issue was not timely or sufficiently raised below; courts affirm in the face of error on considerations of judicial economy or avoidance of further proceedings which would not have been necessary had the issue been raised in a timely manner.1

A court-focused analysis of costs might have been reasonable in an era when prison populations were much smaller and probationary sentences were available for almost every offense. Today, however, at issue in almost every criminal appeal is whether to affirm the issuance of a six- or even seven-figure check, paid not by the judiciary but by the taxpapers. Professor Andrew Chongseh Kim’s paper suggests that courts have been looking at the economics through the wrong end of the telescope.

The paper defines wrongful incarceration as that “in excess of that provided for by legislative and constitutional schema,” including but not limited to the incarceration of the factually innocent. Not everyone cares that defendants must serve legally unjustified sentences because they were not properly challenged, but all should care that affirming such cases forces “states to pay for incarceration in excess of that intended by the legislature.” The heart of the paper presents empirical evidence that more liberal review might indeed cause the judiciary to have some additional sentencing hearings and trials, but the net savings to the taxpayers would apparently be substantial, particularly in the case of plain error review of sentence errors.

There are, of course, sound reasons for requiring some issues to be raised at a particular moment in a judicial proceeding or not at all. An objection to the form of a question or to the language of a charging instrument, which certainly could have been fixed at the time, should be looked at skeptically if raised later.

But there are relatively few instances where defense lawyers reserve issues for appeal in case of loss. Issues rarely improve with age, and an issue likely to be viable in the court of appeals after conviction is at least as useful if raised at trial or sentencing. The paper persuasively argues that a forfeiture rule is not needed as an incentive for defense lawyers; most cases are defended by institutional providers who are already overworked and are doing the best that they can. And, I have yet to see an example of a case where a defendant had a viable absolute defense (say, the statute of limitations or ex post facto clause) but nevertheless wanted a trial and an acquittal for the principle of the thing: If a defendant has a case-ending card, they play it. Moreover, at sentencing, there is no argument that claims may be strategically held back for appeal; the only relief from a successful appeal would be a chance to present the same claim to the same judge.

Consideration of issues raised for the first time on appeal—or on habeas—pose no unfair burden on courts and judges. These courts and these judges can protect themselves by following the law and making sure that defense counsel does not make legal blunders. Some prosecutors, for example, will file a motion to admit particular evidence where the defense lawyer seems to have negligently failed to file a plausible motion to suppress that same evidence. And, judges and prosecutors may be incentivized to ensure the legal soundness of their cases if they thought that these cases might come back to them if they failed to do so. While defense lawyers should not “sandbag” legal errors, neither should prosecutors or judges.

The paper’s argument is not entirely economic. Our system—we hope—is based on morality and justice as well as efficiency. Arguing from Tom Tyler’s work, the paper suggests that affirming a conviction in the face of legal error diminishes the legitimacy of the law. This seems right; again, almost never will the failure to raise an issue be the fault of the defendant personally. It is not clear why a defendant and the taxpayers should pay the whole cost, while the prosecutors, trial judge, and defense counsel do not suffer. (Of course, some or all of them could be punished—but again, why not use those resources to correct the mistakes in the criminal judgment?)

I hope that all appellate judges will seriously consider this paper. Admittedly, reversing convictions and vacating sentences increases the workload of the judiciary of which appellate judges are a part. But having criminal judgments comply with the law is what the legislature and the founders directed, promotes respect for the law, and, apparently, can save money.

  1. See United States v. Vontsteen, 950 F.2d 1086 (5th Cir. 1992) (en banc), for a discussion of the traditional rationale. []

When to Punish

Patrick Tomlin, Time and RetributionLaw and Phil. (forthcoming, 2014).

It isn’t every day that you come across an article that approaches an old topic from a completely new perspective, but that is exactly what Patrick Tomlin’s Time and Retribution does for retributivism in criminal law. Although there are now many different theories of retributivism out there, it seems fair to say that the bulk of them take desert to be the central core of retributivism, and many theorists (myself included) would say that it is intrinsically good for someone to get what he deserves. As I oversimplified retributivism once, “It is the claim that bad guys deserve punishment.”

On the other hand, with perhaps some exceptions like shaming punishments and the death penalty, the standard thought is that retributivists qua their retributivism have nothing to say about the mode of punishment. Decisions about incarceration, fines, short-but-intense punishments, long-but-light punishments—none of these are questions for retributivists. If retributivists have views, these views come from other parts of their general moral or political framework. At least, that was what I thought before I read Tomlin’s article.

Tomlin clearly demonstrates that retributivists do have views about the mode—specifically the timing—of punishment, and he makes his case by looking at the desert claim from the opposite angle. Retributivism’s intuitive force, he reveals, centrally comes from how bad we think it is when criminals do not get what they deserve. And if we think it is bad for criminals not to get what they deserve, then we ought to think about whether this badness increases with every day of non-punishment.

Tomlin’s paper essentially asks the following question, “Do retributivists qua their retributivism prefer long, light punishments or short, intense ones?” His answer is the latter. Retributivists ought to prefer short intense punishments because these punishments increase the likelihood that individuals will get what they deserve.

To reach this conclusion, Tomlin nicely surveys different approaches a theorist might take to the badness of unfulfilled desert, ranging from the “Brute Time View,” to the “Existing Bad Person View,” to the “In the End View.” That is, Tomlin takes the reader through the various possibilities of why the non-punishment of the deserving is bad, each of which has different implications for when we ought to punish. Not only is the novelty of the argument compelling, but Tomlin’s presentation is exemplary. The sections are meticulously argued and admirably clear. It is criminal law theory at its finest.

Notably, Tomlin is also sensitive to the ceteris paribus nature of his claim. He is not claiming that we ought to hurry investigations or to rush to judgment. He recognizes that there are strong reasons for making sure that the person we are punishing is actually guilty of the offense. And, Tomlin does not commit himself to retributivism. His only goal is to show that to which retributivists are themselves committed.

Those who focus on the practical application of the criminal law may be troubled by Tomlin’s conclusion. After all, it gives us reason to prefer more severe punishments. However, if this is the implication of our views, we ought to face them, even if we do not like where they lead us. (Tomlin notes that concerns about punishing the innocent give us reason to use punishments for which errors can be compensated, rather than giving us reasons to delay the punishment itself. Again, this is a very carefully argued paper.)

In addition, if retributivism’s intuitive force comes from the badness of the non-punishment of the deserving, then our retributivist theories ought to take that into account. I fully expect retributivists to debate the brute time, in the end, and the existing bad person perspectives for years to come. Indeed, while I am largely sympathetic to the “in the end” view—that all that matters is the person gets what he deserves in the end—I can make the case for the brute time view: It is not enough to read Tomlin’s paper in the end. You ought to read it today.

Author’s note: I am the co-Editor in Chief of Law and Philosophy, and I was the editor assigned to the manuscript. Law and Philosophy relies on blind peer review.


Lessons Learned from International Prosecutions of Sex Crimes

Sex Violence as an International Crime: Interdisciplinary Approaches (Anne Marie de Brouwer, Charlotte Ku, Renée Römkens & Larissa van den Herik eds., 2013).

It has been nearly twenty years since crimes of sexual violence were prosecuted in international tribunals explicitly as crimes against humanity. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set the stage for how such crimes were to be understood as a matter of substantive criminal law and how they were to be prosecuted as a matter of procedural criminal law. These tribunals also left many unanswered questions to be determined by future courts in future cases. A recent book, Sexual Violence as an International Crime: Interdisciplinary Approaches, is a compilation of articles and essays by scholars, lawyers, professionals and others who have had a front-row view of these prosecutions. Its editors—Anne Marie de Brouwer, Charlotte Ku (who in the interest of full disclosure, is a colleague of mine), Renée Römkens and Larissa van den Herik—have undertaken the task of assembling a volume in the wake of “two decades of experience prosecuting crimes of sexual violence” in order to “assess the work that has been done with a view to understanding the next steps that need to need to be taken.” (P.8.) The volume’s contributors acknowledge some of the key milestones reached in the prosecution of sexual and gender-based violence, expose important failures, and forecast future challenges. (P. 8.)

The lessons learned from these early cases and subsequent cases address elemental definitions of crimes including the contextualization of consent in sexual assault against a backdrop of structural disempowerment or the inclusion of men and boys as victims of sexual violence; the use of conspiracy theories to prosecute not only the direct perpetrators of sexual violence, but also those further removed within the operational structure. They offer an assessment of practices developed in the investigation, reporting and analysis of data including the value of social scientific methods in meeting evidentiary burdens of fact and in understanding the impact of the harm on communities and individuals. The authors also explore the increasing sensitivities to victim-related concerns including evidentiary rules excluding evidence of past sexual conduct; privacy issues raised in the collection and documentation of medical and personal data; efforts to prevent the re-victimization of the victims by the criminal justice process itself.

In addition to discussing the changes in the law and in the courts, the book’s greatest contribution is as a testament to the seismic change that has occurred around the globe during the last twenty years regarding the social construct and understanding of gender-based violence as an act of war or a violation of human rights. When, in 1995, I wrote Addressing Gender-Based Violence in an International Context, 18 Harv. Women’s L.J. 139, I lamented that despite the then-recent international tribunals and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the problem of sexual violence had yet to be addressed at a societal and grassroots level. What I failed to account for was the societal shift that would begin to occur surrounding the prosecution of these cases. Many of the essays in this volume consider the developing awareness regarding sexual violence as an act of terror and conflict, but also as a daily social problem. Notably, Sexual Violence as an International Crime also acknowledges the importance of partnerships between prosecuting authorities and NGOs or locally based community organizations in preventing and addressing gender-based violence. Reaching back into the past while providing lessons for the future, this timely book is a worthwhile read for anyone interested about the handling of sexual violence cases in post-conflict regimes.


When the Government (Accidentally) Helps Criminal Markets

David Michael Jaros, Perfecting Criminal Markets, 112 Colum. L. Rev. 1947 (2012).

The relationship between antisocial behavior and criminal legislation seems straightforward. When people behave in undesirable ways, legislators respond by prohibiting that behavior and imposing punishments for transgressions: so far, so good. What if, though, these laws actually (though unintentionally) facilitated crimes? This counterintuitive idea is central to David Michael Jaros’s provocative article, Perfecting Criminal Markets. 

Under an economic approach, legislators deter crimes by creating potential punishments that outweigh any perceived benefit to the would-be criminal. In reality, though, the creation of these crimes results in the emergence of black markets, whether for illegal drugs, prostitution, or other prohibited goods and services. Thus, closing the border creates a market for human smuggling, and criminalizing the sale of certain drugs creates a black market for their purchase and sale. While the existence of criminal markets is well trod scholarly ground, Jaros offers a fresh insight about their operation. Criminal markets also create new opportunities and new markets for individuals that would not exist without the creation of the “first order” crime. The illegal immigration market leads to the smuggling of persons across the border, often in deadly conditions. The illicit drug market leads to the sale of fake illegal drugs and gun violence. A common legislative response to these “second order” problems—a new round of criminalization—creates a dilemma.

While the prohibited conduct of these second order crimes poses independent social harms, it also presents a surprising benefit. From an economic analysis, second order crimes actually promote market failures: a result that shouldn’t be thwarted. Like markets for legitimate goods, criminal markets—especially the market for illicit drugs—face distortions. Information asymmetries between buyers and sellers permit the sale of fake illicit drugs, just as used car buyers risk “lemons” in an unregulated secondary market. Because illicit drug market participants lack access to legitimate legal recourse, they resort to guns, an additional cost and risk attendant to the illegal drug commerce. That same gun violence facilitates reduced competition among sellers, thus raising prices and reducing the number of drugs sold.

Yet when legislatures decide to criminalize or to increase penalties for these second order crimes, they strengthen rather than weaken criminal markets. By making the sales of fake drugs a crime—something that more than thirty five states do—legislatures make the drug market more efficient, just as state consumer protection laws, for example, protect buyers from buying defective used cars. By adding additional penalties to those smugglers of illegal immigrants, Congress perfected the market for illegal immigration by encouraging safer transportation by smugglers. Jaros asks us to set aside the “criminal” label from these markets for a moment to help demonstrate how second order criminalization is really little different from the ways in which legislatures help make legitimate markets work more efficiently.

How should we understand this relationship between first and second order criminalization? Jaros raises several points that demand attention from the criminal justice audience.

First, because second order crimes have the potential to encourage more crime, legislators should be careful when criminalizing second order antisocial conduct. Jaros does not suggest that legislators should avoid second order criminalization altogether. What legislators must appreciate, however, is that there is a complicated relationship between first and second order crimes that urges some balancing of the relative costs and benefits of further criminalization and the potential enhancement of the first order criminal market. (I’m less confident that police and prosecutors can or should take into account these complex relationships, but this is a minor objection.)

Second, the identification of second order crimes adds a further dimension to the overcriminalization debate, the long running scholarly critique of the ever growing number of substantive criminal laws on the books. If criminal markets give rise to new criminal opportunities, legislators should realize that each expansion of the criminal law “plants the seeds for new antisocial activity to be criminalized.” (P. 37.) Thus at least some of the overcriminalization phenomenon might be explained by the interplay between first and second order criminal markets.

Finally, Jaros explains how second order crimes might be useful in the debate about harm reduction strategies that serve as alternatives to criminalization, such as needle exchanges or HIV testing for sex workers. Such policies often lack broad acceptance on the ground that they promote rather than deter the undesirable behavior, even if they might confer benefits, such as stanching the spread of communicable diseases. Second order crimes provide harm reduction strategists with a powerful rejoinder. If second order crimes might be said to condemn antisocial behavior even as they facilitate crime, the same could be said of harm reduction strategies, which have the additional benefit of promoting social welfare for the people involved in these criminalized behaviors.

I’m generally skeptical of the use of economic theories to rationalize criminal law. Many crimes are the result of impulsive behavior that no cost-benefit analysis could predict. Yet in Perfecting Criminal Markets, Jaros uses the concept of second order crimes to generate novel insights about several different criminal law debates. With his original analysis, Jaros can persuade even the most hidebound that automotive “lemons” and fake crack cocaine might have something important in common.


How Much Information Can Government Collect to Protect National Security?

The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.

These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.”

More specifically, Chesterman argues for the adoption of three principles. The first principle is the “the essentially public nature of the power being exercised.” The second is the “the need to ground that power in the rule of law.” Finally, he stresses “the importance of addressing not merely the collection of intelligence but its use by the state and all those with whom the intelligence is shared.”

It is hard to quibble with these three principles. But Chesterman’s thorough critique of past and current practices also makes one pessimistic about the ability to implement them. For instance, the first principle requires public debate about how intelligence-gathering should be regulated. But in the wake of 9/11, the most popular view may well be the one expressed by Director of Intelligence Mike McConnell in commenting on the U.S. Congress’ deliberations over national security wiretapping: “The fact we’re doing it this way means that some Americans are going to die.” Similar objections have been raised about further exposing the NSA’s phone record collection activities. Chesterman’s public principle is also hostile to unjustified privatization of intelligence work; Chesterman rightly argues that part of the problem here is the legislative failure to define those “inherently governmental activities” that may not be outsourced. Yet, even he is hesitant about placing surveillance or analysis of the fruits of surveillance in that category. As he notes in Chapter Six and the NSA controversy again highlights, mass surveillance cannot succeed without private communication companies, and data analysis is sometimes best carried out in think tank-like settings such as the Rand Corporation.

Chesterman’s book also does not inspire hope about the type of law that debate (whether it is carried out in public or private) is likely to produce, and thus also calls into question the viability of his second, rule of law, principle. Chesterman provides example after example of elastic legislative or regulatory rules that either exempt or place only minimal restrictions on government intelligence officials, as well as numerous illustrations of how those who are supposed to “watch the watchers” have been unable or unwilling to do so. It is telling that, as he notes, most of the reforms that have occurred are the result of media diligence, not the consequence of government oversight (again, see the NSA controversy). One of the best quotes (of many) in the book is Congressman Norman Minetta’s description about why legislative monitors are like mushrooms:  “the intelligence community ke[eps] them in the dark and fe[eds] them a lot of manure.”

Chesterman is not claiming, however, to have found a method of ending abuse, only a framework for containing it. The broad outlines of government authority can certainly be subject to the political process, as has occurred with the Patriot Act in the United States and the Security Service Act in Great Britain. Perhaps most importantly, publicly enacted statutes can set out which agencies are permitted to carry out national security operations and to what extent. In the United States, which has 16 agencies involved in intelligence-gathering, this latter goal ought to be paramount.

The importance of bureaucratic role definition comes to the fore in implementing Chesterman’s third principle, to the effect that regulation should focus on the use, rather than the collection or retention, of information. As he puts this idea in his last chapter, “accountability for the activities of intelligence services must be consequence-sensitive.” Few limitations should be placed on gathering data, but its dissemination should be closely monitored.

As I have written elsewhere, several objections to this focus on use-regulation can be raised: “[L]imiting information flow [among government agencies] can be very difficult . . . .  And even if the information gathered  . . . is somehow confined to a limited and discreet group and is not misused or inaccurate in any way, routine suspicionless and covert transaction surveillance can eat away at whatever trust is left between government and its citizenry. . . .”1 Now that we know more about what the NSA is doing, all of us feel less secure about the government’s agenda. Chesterman does not completely discount these points, but views them as naïve in return. Government, he says, already is acquiring vast amount of information about each of us and will continue to feel compelled to do so given current threats. Furthermore, he asserts, most of us are willing to accept that tradeoff (his “social contract”). Thus, rather than try to draw fine lines about what can and cannot be collected, and from whom, we should accept the full consequences of such a contract. Rather than profile, he suggests, everyone should be subjected to airport checks. Rather than limiting DNA sampling to convicts, the database should be universal.

Chesterman is to be congratulated for sharpening one of the most important debates of our time, a debate that is particularly intense at the current moment. I think his stance ultimately is a sustainable one, under two conditions, both consistent with his three principles. First, an elected body that is truly representative of the affected polity must authorize these types of surveillance dragnets, on the express understanding that its members too will be subjected to them. Second, use of information so obtained must be limited to preventing or prosecuting serious threats, upon pain of significant penalties. This is a social contract that a democracy should find acceptable. We may soon find out whether that is the case.

Further thoughts on Chesterman’s book, as well as commentary about another recent book on related matters by Stephen Schulhofer,2, can be found in What is the Essential Fourth Amendment?.

  1. Christopher Slobogin, Privacy at Risk:  The New Government Surveillance and the Fourth Amendment 200 (2007). []
  2. Stephen Schulhofer, More Essential Than Ever: The Fourth Amendment in the Twenty-First Century (2012) []