Criminal Law

Aya Gruber

As an undergraduate philosophy student, Kantian metaphysics rocked my world.  Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me.  Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong.  Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition.  What could be more reasonable than a moral program based on metaphysical observations about the human condition?  Accordingly, I embraced retributivism with an almost zealous fervor.  It was so clean―as logical as the symmetric property of equality:  Punishment should be given to those who deserve it.  Thus, those who deserve it should be punished.

As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian.  I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve.  I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors.  In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved.  If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved.

What I failed to understand then seems so obvious to me now.  The rise of the American carceral state indisputably coincided with the rise of retributive philosophical rhetoric.  Retributivism was the problem, not the solution.  Had I then had the benefit of reading Alice Ristroph’s How (not) to Think Like a Punisher, 61 Fla. L. Rev. 727 (2009), I would have had come to this realization much sooner.  In this short, easy-to-read essay, Ristroph takes on retributivism’s most compelling claim―that it provides the sole ground for limiting punishment on the basis of proportionality.  Situating her discussion of retributivism in the context of the newly revised Model Penal Code’s apparent endorsement of a distinctly retributivist concept of proportionality in sentencing, Ristroph concludes that the “new Code is at its best when it acknowledges the legal and political complexities of sentencing, and at its worst when it invokes the rhetoric of desert.” (P. 728).  Ristroph’s support for the socially contextual, empirically based Model Penal Code sentencing provisions over the theory-based retributive provisions raises two questions.  First, what’s wrong with retributivism?  Second, if not retributivism, then upon what basis can we demand that sentences be proportional?

In answering the first query, Ristroph travels well-trodden philosophical ground, pointing out retributivism’s utter indeterminacy.  The most salient critique of retributivism is that it tells us to punish those who deserve it but fails to give any indication of who deserves it and how much they deserve.  There are nonetheless attempts to give content to the loose philosophical notion, as the essay notes, such as the currently popular “empirical retributivism,” which defines retributive justice with reference to shared social intuitions of what is deserved and how bad certain crimes and criminals are.  But the social intuitionism school is particularly disturbing in light of studies that reveal social intuitions of justice to be largely racialized.  In this sense, “judgments of ‘desert’ may serve as an opportunity for racial bias to enter the criminal justice system.” (P. 746).  Thus, the desert provisions of the Model Penal Code in effect undermine other portions of the Code that expressly call on judges to examine the racial impacts of criminal sentencing.

In addition to providing safe harbor for racial bias, desert can also serve to shelter the most severe punishment regimes from claims of disutility.  Ristroph characterizes the evidence-based sentencing provisions of the Model Penal Code as generated by the drafters’ “hope that the facts will speak for themselves . . . that once people see how much sentences cost, and how little they apparently deter, the only rational response will be to reduce the length of prison sentences and look for other alternatives.” (P. 748).  This hope, however, is undoubtedly undermined by retributive sentiments that the guilty―and most convicts facing sentencing are guilty―ought to be given the punishment they deserve, no matter how much it costs, how undeterrable crime is, or how much this “deserved” punishment happens to disproportionately impact certain populations.  Consequently, “[t]he danger of desert is that it preserves the possibility that some will say the costs are worth it, the inequities deserved.” (P. 748).

Yet if we simply give up on retributivism because it can be used as an argument to keep sentences high, we also give up on the potential to rely on retributivism to lower sentences.  Ristroph points out, however, that if we understand the one-way ratchet nature of current retributive rhetoric, the promise of retributive proportionality is plainly false.  That retributivism has failed as a limiter, is evidenced by the fact that “the people who enacted and defended California’s [three strikes] law understood it as a way to guarantee that repeat offenders would get what they deserved.” (P. 742).

One might respond that although not currently effective, retributivism offers the only true promise of proportionate sentences.  After all, Justice Scalia described proportionality as “inherently a concept tied to the penological goal of retribution.”  Ewing v. California, 538 U.S. 11, 1 (2003) (Scalia, J., concurring).  It turns out, according to Ristroph, that Justice Scalia is wrong.  Non-retributive principles can be more than adequate grounds for proportional punishment.  Referencing her article, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 263 (2005), Ristroph posits that proportional punishments are a necessary feature of a government of limited penal authority.  In addition, one can imagine other principles, external to the question of punishment’s basis, such as racial equality, communitarianism, distributive justice, and civilized modernity (e.g., James Whitman, A Plea Against Retributivism, 7 Buff. Crim. L. Rev. 85 (2003)) as counseling against harsh sentences.  In the end, Ristroph urges sentencers to liberate themselves from the binds of penal theory and think beyond whether punishment is deserved.  Thoughtful sentencing requires navigating the turbid waters of empirical efficacy, social context, and government authority to arrive at the just punishment.

Margareth Etienne

In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability.  They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks.  As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts.  Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written.  It is hard to put down, at least figuratively.  Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.

Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.)  This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability.  Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results.  Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others.  They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters.  In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability.  As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation.  In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin.

While the authors fail, to my mind, to persuade that punishment and liability should be entirely retributive and culpability-based, their book is ultimately a success in that it forces the reader to confront deeply held beliefs about fault.  Crime and Culpability provides a conceptually and pedagogically useful thought experiment about the virtues and the deficits of holding defendants responsible only for things in their control.

The controversial implication of the choice theory of liability is the elimination of negligence liability.  The authors explain that negligence—or the failure to advert to a risk that was unperceived but should have been perceived—is not culpable because we cannot be “morally culpable for taking risks of which we are unaware.” (P. 71.) They explain that an injunction “to notice, remember, and be fully informed about anything that bears on risks to others is an injunction no human being can comply with” and therefore one that reflects no moral defect.  (P.71.)  And they are right but the result is not one that most of us can live with.  The book pushes us to ask ourselves why.

Another compelling thought experiment raised by Crime and Culpability is their suggestion that we ought to collapse the distinction between offenses and defenses.  I sympathize with the author’s intuition that the oft-made distinction between offenses and defenses is formalistic.  The distinction exists perhaps for reasons of procedural fairness rather than theoretical integrity and they are right to point that out.  But how would we operationalize such a system?  Essentially the authors contend that defenses and their offenses are of one cloth as indicators of criminal culpability.  Recall that their “choice” theory of criminal liability is about the risks “the actor believes himself to be unleashing beyond his control”, id. at 86, and not about the consequences of his conduct.   Interesting questions arise when choice is placed at the center of personal culpability.  Are we fully responsible for our choices, judgments and misjudgments?  Or for the quality of our deliberations? Or for our mistakes in making normative judgments?  Is the gang member who was raised by other gang members culpable for her choices?  Is the batterer who believes that wife beating is culturally appropriate responsible for his beliefs?  The book demonstrates, perhaps unwittingly, how offenses can become subjective when we focus on choice and when we eliminate resulting harm from consideration in determining culpability.

In this limited space, I can’t begin to do justice to the breadth and depth of issues addressed in Crime and Culpability or to the many philosophical quandaries it uncovers.  I enjoyed reading it not because I agree with it but because it forced me to think critically about all the reasons I don’t and, at times, some of the reasons I am wrong to disagree.  I recommend it wholeheartedly.

Elizabeth Joh

Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time.  Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century.  Banishment went the way of the rack and screw, so the thinking goes.  Instead, the predominant form of modern punishment is a form of confinement: incarceration.  If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.

One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention.  This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law.

Banishment, according to the authors, isn’t dead.  In fact, it’s reemerging as a significant form of official punishment.  The reason it hasn’t been recognized widely is that it doesn’t come packaged as “punishment,” or even “banishment,” for that matter.  The forms of banishment that Beckett and Herbert discuss are categorized as civil or administrative remedies, and so are unlikely to be discussed in the same breath as traditional criminal law offenses.  Whatever their label, these strategies are best understood as banishment because they constitute formal spatial exclusion.

Beckett and Herbert look at the functions and consequences of modern day banishment, and rely upon empirical data they have collected from Seattle, Washington, considered to be at the “cutting edge of this trend” (P.5).  Beckett and Herbert focus on three forms of banishment: parks exclusion orders, which permit the police to ban persons from public parks for minor infractions like being present after hours; trespass admonishments, which permit the police to act as agents of private property owners in restricting access to places normally open to the public; and off-limits orders that prohibit persons from certain geographic areas of a city as a condition of community release and supervision.

Based on interview data with those who have been subject to banishment, Beckett and Herbert contend that the lived experiences of these “alternatives” to criminal punishment are non-criminal in name alone.  Using the terminology from Gresham Sykes’ seminal 1958 study of prisoners in The Society of Captives, Beckett and Herbert demonstrate that the pains of punishment that are associated with incarceration have close parallels in the experiences of those banished.  Being legally barred from a place one calls “home,” even if an unconventional home, punishes the banished person in ways ranging from the symbolic (psychic pain) to the emotional (loss of contact with friends and family) and the mundane (difficulty in obtaining access to health services, social workers, and food).

This reemergence of banishment should matter to criminal law scholars for a number of reasons.  First, it turns out that these civil alternatives are too often a backdoor to the criminal justice system.  While each of the forms of banishment studied in Seattle is classified as civil, violations of park exclusion orders, trespass admonishments, and off-limits orders are criminal offenses.  Note too that because the initial orders are civil, an individual subject to, say, a parks exclusion order receives nothing like the procedural protections that a conventional criminal defendant does.  (In Seattle, the police may exclude a person from a public park without providing any evidence of wrongdoing.)  The effects of the orders can be considerable; large swaths of the city can be designated as forbidden to the banished person.  In addition, to the extent that Seattle is representative of the trend, these officially noncriminal tools are resulting in increasingly frequent use of the criminal justice system.

Second, the modern forms of banishment discussed by Beckett and Herbert are driven by the same motivations that spurred enthusiasm for “quality of life policing” in the 1990s.  Many police departments credited a focus on the enforcement of minor crimes like public urination and open container violations for the drop in crime in major American cities.  But later studies cast doubt on this thesis.  Was quality of life policing really the key factor in crime decreases?  And who defines “disorder,” anyway?  This second question is underscored by the authors’ interview data.  Banishment tools may seem to city officials and the police like a clear cut method to rid a city of unwanted behaviors, but from the viewpoint of those on the receiving end of these orders, banishment can be a separation from things, places, and persons that individuals hold most dear.

Third, the very focus of this fine article calls out to teachers of criminal procedure everywhere.  Remember in scholarship and in teaching that criminal law enforcement is but one aspect of policing.  Police do everything from chasing robbers to getting cats out of trees and enforcing civil and administrative codes.  This basic insight has important consequences for the perennial questions in policing, like the tool of wide discretion the police enjoy to take care of the problem of disorder in cities.  Civil banishment, as the authors suggest, may be too much tool and not enough problem.

Mary Fan

Paul Butler’s new book Let’s Get Free is essential reading for those who care about American criminal justice, prosecutorial power, and doing justice from inside the system.  It is also a beautiful rarity for a book of big scholarly ideas: page-turning reading.  The writing hums with the rhythm, flow, and narrative of hip hop at its best—one of the inspirations for an intriguing chapter and the book’s subtitle: A Hip-Hop Theory of Justice.  The intimate portrait of the prosecutor and the criminal justice system that Paul presents is an important contribution to the literature penetrating the opacity of prosecutorial power, practices and pressures.¹

It is a tribute to how successfully Paul liberates his scholarly ideas from the stilted prose that dooms legal scholarship to limited readership that one of my law students recommended this hot new book to me.  He was moved and inspired by the book enough to spread the word and seek to discuss it.  This is the power of great ideas, set in beautiful prose, made compelling through narrative.  And narrative is the thread that binds this book of many big ideas.

A Recovering Prosecutor

We begin with a redemption story: Paul is about to impress his mom watching him in trial by letting the prostitute he is prosecuting have it on cross-examination.   This is just practice for Paul the star prosecutor rising fast through the ranks to join the elite Department of Justice Public Integrity section.  Paul’s story is inspirational.  Raised by a single mom in a poor black neighborhood on Chicago’s South Side, Paul went on to study at Yale and Harvard, and then to a prestigious clerkship and law firm.

The story then takes a twist.  The star prosecutor becomes the prosecuted.  I will not give away the story by revealing for what crime, except to say that it is a ridiculous accusation and would be comedic if it had not been endured by a real person.  Paul never told his mom. Poignantly he writes that he would rather have her memory be of her son in trial, not on trial.

Paul thus opens by powerfully and frankly framing his positionality—something anthropologists are wonderful at doing and legal scholars should be more aware about. Arguments are more compelling when situated in context with credibility, vantage, and experience fronted.  Paul has credibility in abundance from his complex place as an outsider who made it inside and is now telling us about the system like it is and what we can do to transform it.

Criminal Justice, Indicted

The system is not pretty—and perversely makes us less safe by locking too many people up, Paul writes.  With the highest rate of incarceration in the world, we have reached a tipping point where more convictions and incarceration mean less safety.  Going to jail is starting to seem like a rite of passage for young men in some low-income communities.  When conviction and incarceration start looking normal, the criminal law loses its stigma—draining criminal law of its deterrent power.  Moreover, mass incarceration is also counterproductive because it disrupts families and social organizations, which are much more important in constraining crime than any ham-fisted police power or prison. Paul also riffs on how the drug war fuels over-incarceration and how the heavy use of “snitches” — (a word I hate because it is too often misused to silence and intimidate brave people who come forward out of concern for their communities) — stains the integrity of criminal justice and harms communities we aim to help.  Paul distinguishes between “snitches”—typically criminals who offer information for a bounty, usually cash or leniency—and people who altruistically step forward to be witnesses.

What of the beautiful dreamers, who hope to change the system from the inside?  Dream on, but do not be deluded, Paul tells us.  You may go in as he did, thinking he would be the Undercover Brother on the inside, but instead end up collaborating in injustice, Paul writes.  He recollects how the system changed him rather than him changing the system.  He played a symbolic and legitimizing function in a jurisdiction where the arraignment court line-up of defendants recalls the Ntozake Shange poem that begins “The suspect is always black and in his early twenties.” Butler, the elegantly suited, Ivy-educated, clean-shaven 6’3” black man reassured black jurors in every inflection that everything’s cool, go ahead and convict this scumbag defendant (who contrasts so jarringly with him).

What about the discretion to do justice?  Paul tells us discretion is mainly a myth at the line prosecutor’s level.  The head of the office may have vast power to set the prosecutorial policy, but the line-level prosecutor must implement.  In short, Paul tells us good people should not be prosecutors.

Though I love this book, I do not always agree with it.  This is one such point of disagreement.  Perhaps it is because I worked under a brave exemplar of a leader, a U.S. Attorney who truly believed in doing justice — even if that meant braving political fire to go after the powerful and not just the poor and easy targets.  Then again, she was one of the U.S. Attorneys controversially cut by the Bush Administration.  So to paraphrase Paul’s memorable turn of phrase, “the shit’s complex.”  But I still have hope that people with courage and integrity can do great things from the inside.

The Beautiful Struggle

My favorite works do not just critique—they offer a vision of transformation.  Paul offers a multidimensional vision and many concrete ideas.  You may not agree with some or even all of what he argues and proposes.  But the genius of the visionary is to open your mind to the universe of possibilities and an array of ideas, some of which may take wing even if others do not.

The nation’s leading expert on jury nullification, Paul tells ordinary citizens what they can do to check a system out of control, raging on the steroid of the War on Drugs.  He explains principled nullification when it comes to unjust laws.  Do not let the violent criminal off, Paul tells potential jurors, but do spare the casualties of the War on Drugs, swept up for low-level drug offenses.

He also offers numerous other ideas—including a seven-point plan—that I will not outline here because you should read the book.  I will just mention one other fascinating proposal.  Paul talks about how technology may help liberate us from our addiction to prisons.  For example, ankle bracelets are preferable to pushing nonviolent offenders into the brutal boiler of prison, where they are initiated into race-based gangs for survival.

What I love about this book is that it is deeply real and does not shy away from the gritty and the gray.  Paul does not ignore the deep conflicts that the criminal justice system must navigate and the need to punish the bullies who hurt others. He has locked up thugs who he thinks should not see the light of day.  He powerfully argues, however, that our system should not perversely do violence to communities by incarcerating vast portions of their people for non-violent crimes.  The book is at once radical and practical, from a visionary with real-world credibility.  We vitally need such practical radicals and visionaries with real-world credibility in the hard task of defining and better realizing criminal justice.

1. The legal scholar in me cannot resist listing a few of my favorites: See, e.g., Stephanos Bibas, Assembly-Line Criminal Justice (forthcoming 2011); Marc L. Miller & Ronald F. Wright, The Black Box, 94 Iowa L. Rev. 125 (2009); Roger Fairfax, Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. Davis L. Rev. 411-456 (2009); Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); Mary De Ming Fan, Disciplining Criminal Justice: The Peril Amid the Promise of Numbers, 26 Yale L. & Pol’y Rev. 1 (2007); Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583 (2005); Michael Edmund O’Neill, When Prosecutors Don’t: Trends in Federal Prosecutorial Declinations, 79 Notre Dame L. Rev. 221, 225 (2003); Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851 (1995); Richard S. Frase, The Decision To File Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 247 (1980); Kenneth Culp Davis, Discretionary Justice 169-172 (1969); Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 60 (1968). [↩]
   

Christopher Slobogin

All commentators agree that the Fourth Amendment’s second, “Warrant Clause”—providing that search and arrest warrants be based on probable cause and describe with particularity the place to be searched and person or items to be seized—was meant to do away with general warrants. The general warrant is still very much with us today, however. Without any individualized suspicion, homes and businesses are subject to health and safety inspections, school children must undergo drug testing, motorists are stopped at roadblocks and checkpoints, important documents maintained by banks, credit card companies and other entities are mined for data, pedestrians in our major cities are monitored by camera systems, and everyone’s personal effects are uniformly scanned and searched at borders, airports, and various other major travel hubs.

The Supreme Court has pretty much allowed all of this to go on without any constitutional restriction.  In the case of drug interdiction, roadblocks, and drug testing of pregnant mothers, it has declared that individualized suspicion is needed.  But otherwise the Court has either held that the Fourth Amendment does not apply because the government action is not a search (as with data mining) or concluded, in effect, that any government search and seizure program that avoids irrationality is permissible.  Many commentators have deplored this state of affairs and proposed a number of alternatives, usually either requiring some sort of individualized suspicion (which would probably put an end to all general searches and seizures) or adopting a variant of strict scrutiny analysis, which would require courts to determine whether the program is narrowly tailored to meet a compelling state need (and would involve some very difficult, and arguably improper, judicial calculations about programmatic costs and benefits).

An alternative approach to the problem of group searches and seizures is proposed by Richard Worf in The Case for Rational Basis Review of General Suspicionless Searches and Seizures.  In this article Worf applies John Hart Ely’s political-process theory to government dragnets. Political-process theory attempts to mediate the interbranch tension caused by challenges to legislation under indeterminate constitutional provisions. It does so by telling courts that such challenges should succeed only if the legislative pronouncement is the result of a significant defect in the democratic process. According to Worf, “The theory respects our society’s presumption of democratic decision making and simply holds that judicial review should always be affirmatively justified by some representation-reinforcing rationale.”

Worf ties this idea to Fourth Amendment jurisprudence by asserting that, when search and seizure of a group rather than of an individual is involved, representation of the relevant interests is often possible. If so, he argues, courts owe the results of democratic decisionmaking deference. As Worf notes, courts have long trusted legislative balancing of government and individual interests in other constitutional arenas involving groups (consider, for instance, equal protection, due process and takings cases). Thus, he contends, we should be equally willing to trust legislatures to balance those interests in Fourth Amendment cases involving general searches and seizure. Worf concludes that, “[w]here only groups are affected, very important, disputed questions can safely be left to the political process.” He adds that the text of the Fourth Amendment says as much, for it is framed in terms of reasonableness, an inquiry into “social welfare maximization” that judges are no better equipped to address than legislatures, at least when groups rather than individuals are involved.  In short, Worf argues, general searches and seizures authorized by legislatures should usually merely have to pass a rationality test, in which case they are normally valid as a constitutional matter.

Worf also recognizes, however, that many searches and seizures cannot be said to result from even the generous concept of democratic functioning that underlies rational-basis review. He identifies three principal process defects: (1) an absence of authorizing legislation, (2) legislation that delegates too much power to the executive branch, and (3) legislation that prejudices a discrete and insular minority. In these situations, Worf states, the Court should apply strict scrutiny rather than rational-basis review.

The first defect most obviously occurs in the run-of-the-mill search and seizure based on individualized suspicion. These types of actions are not authorized by legislation, but rather involve the exercise of police-officer discretion. A good example, Worf notes, is Delaware v. Prouse, in which the Supreme Court pointed out that the officer “was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks.” Another variant of this defect arises when some type of upper-level authorization exists, but it comes from an unelected body; here Worf points to Ferguson v. City of Charleston, where hospital officials and local police created a policy for testing pregnant women for drug abuse.

A second process defect occurs when authorizing legislation is enacted, but it fails to impose any meaningful constraints on officer discretion, thus in effect replicating the absence-of-legislation defect. Worf suggests that this defect was present in the statute upheld in Burger v. New York, which permitted officers to inspect junkyards for stolen vehicle parts whenever they chose.

The third type of process flaw that Worf identifies, well-known to all constitutional-law buffs, occurs when the law generated by democratic decisionmaking discriminates against a group that is precluded from significant participation in the political process. Prisoners and aliens fit in this category, as would racial groups in some situations. Worf also suggests that a statute that authorized checkpoints in high-crime neighborhoods, although facially neutral, would be suspect if those neighborhoods are generally composed of minorities. Although disparate-impact analysis has faded from other areas of constitutional law, Worf acknowledges it could have a place in Fourth Amendment jurisprudence given the history of racial profiling in policing.

I found this article to be thought-provoking and quite useful in dealing with an extremely knotty problem.  I rely on it heavily (with significant tweaks, of course) in several upcoming pieces, including one entitled Government Dragnets.  I highly recommend Worf’s article.

Erin Murphy

Maybe it’s because I’m related to card-carrying members of the Tea Party movement, but I have a thing about government secrecy.  It makes me nervous.  In my own scholarship I have fretted a lot over state encroachments on personal privacy.  But when I really dig down deep, the truth is that I worry much less about what the government knows about me than I worry about what I do not know about it.

This probably explains my current research project, which is about (naturally) government secrecy in criminal justice.  It probably also explains my admiration for articles like Alexandra Natapoff’s Snitching:  The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645 (2004), and Jacqueline Ross’s The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 Am. J. Comp. L. 493 (2007).  Most recently, it certainly accounts for my fascination with and applause for the article I want to discuss here: Elizabeth Joh’s Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009).

Joh’s piece is a must read for anyone who teaches Criminal Law and happily puzzles over those impenetrable attempt cases in which the defendant is exculpated because his putative criminal confederate was in fact an undercover agent, or for anyone who teaches Criminal Procedure and feels slightly dishonest for the scholarly establishment’s general lack of interest in vice crimes  (even though they largely account for the explosion in the prison population).   In other words, there is a little something for everyone.

Her basic, and to my mind indisputable, premise is that although “petty deceptions pervade the craft of effective policing,” Joh, supra at 161, there is something different in kind, and worth noticing, about the practice of authorized criminality in covert investigations.  Citing sociologist Gary Marx, she begins by delineating the three categories of undercover policing:  surveillance, prevention, and facilitation.  Facilitation efforts, which require officers to pose either as vulnerable (and thus attractive) victims or as willing (and thus encouraging) accomplices, run the greatest risk of crossing legal and ethical lines.  Undercover agents may be required to engage in authorized criminality in order to provide opportunities for the target to commit an offense (such as by supplying drugs to a manufacturer), to maintain their false identity (such as by smoking marijuana), or to acquire access (such as by committing offenses necessary to gain authority in a criminal organization).

Authorized police criminality raises a range of concerns, Joh argues, yet very little is known about it.  She specifically highlights the problems of its secrecy and lack of accountability, its unrestrained grant of police discretion, and its disturbing moral ambiguity.  She notes the tension between the values of democratic policing and the reality that “[t]here is little available public knowledge about the frequency, nature, and conditions of authorized criminality in undercover work.”  Id. at 183.  Authorized criminality, moreover, can generate moral confusion for the officer engaged in the deception, as well as undermine the expressive authority of the police among community members aware of the tactic.

Despite these real risks, authorized criminality is effectively unregulated in the American legal system (though less so elsewhere).  Prosecutors rarely charge officers, and those that are charged can assert the well-recognized public authority defense.  Moreover, to the extent that entrapment law or due process might present some ex post regulation (and thus arguable deterrence), those substantive doctrines have been defined so narrowly as to lose all meaning.  Lastly, police departments themselves have left the area largely untouched by internal rules or guidelines.

The ultimate goal of the piece, having identified the issue, is to set forward three initial recommendations.  Joh recommends greater transparency, primarily through more rigorous recording and dissemination of data related to instances of authorized criminality.  She also recommends limiting the exercise of discretion through the development of internal departmental guidelines.  She closes by encouraging legal scholars to resist the beckoning beam of constitutional criminal procedure, and instead shine some light on the shadowy corners of local and state level police practices.

Breaking the Law appealed to me on three levels, two of which spring directly from a more general reading of her closing exhortations.   First, in an era of ill-defined wars both domestic and abroad (on terror, on sex offenders, on drugs, on gangs, etc.), it seems that questions of the permissible boundaries of covert operations, and especially authorized criminality, are particularly necessary and timely.  I am mindful here of Jackie Ross’s wonderful work (cited above), which opens with a striking account of a scandal in Germany that resulted from multiple policing agencies infiltrating the same organization, unaware of one another’s identity, such that in the end it turned out that they had spent most of their time covertly studying one another.  That cautionary tale dovetails nicely with the recent news about the Maryland State Police, who admitted to having covertly infiltrated various advocacy groups like Code Pink and PETA, leading investigators to improperly identify fifty-three nonviolent political activists as “terrorists” in national government databases.

So why have both courts and legislatures left this area entirely unregulated, even as they (as Joh points out) have minutely prescribed the procedures for interrogation or a stop and frisk?  I kept summoning the image of Jack Nicholson in A Few Good Men on the witness stand barking: “You can’t handle the truth!”  I suspect that neither judges nor lawmakers want to sully their hands with the dirty business of police breaking the law, and may secretly (or not so secretly) even believe it to be the only way to go about effectively policing some offenses.  But as hydraulic pressures push toward more invasive and imaginative tools in the War Against [fill in the blank], it seems that at the very least there ought to exist some conversation on the topic.  In this respect, I appreciate that Joh’s piece sounds a valuable alarm just as the fire is spreading, but no one is yet awake.

Second, perhaps my favorite thing about Joh’s piece was that it endeavored to do some of what I have strived to do in my own work:   focus on state and local level policing and not shy away from the subject despite an admitted lack of empirical data.  Joh knows that she is, in a sense, going a bit “rogue” herself by making arguments regarding a practice about which there is no good information, but that does not stop her from doing it.  She is careful in her claims, and particularly in sticking to her process-oriented guns (more data! more guidelines!) as a result, but I liked the plucky way she reminded us at the end that legal scholars all too often enable Supreme Court worship in criminal justice, with all its resulting pathologies.  Both directly and by example, Joh urges scholars not to shy away from scholarship focused on the states and localities (with their 770,000 police officers),  even though it is so often hard to figure out what’s going on in them.

This leads me to my last observation about Joh’s piece:  I desperately wanted her to throw caution to the wind and dive into the substantive values that she deliberately avoided.  We have made national entertainment of catching sex predators in the act (NBC) and our courts are clogged with undercover buy-bust cases, but anyone who watches The Wire (and everyone should) knows that the Big Criminal Fish still swim pretty freely.  So my mind immediately wandered here: what is the proper axis of analysis when thinking about the propriety of such covert ops?  Vice crime on one side of the scale and on the other the complex financial frauds that have brought the economy to its knees?  Or is it low-level dealers on one side and the corrupt politicos on the other?   Is it type of crime or scale of target that matters?  Is there a place where the two meet in the middle-say, Joe Sex Offender?

Surely there must be crimes that we are willing to let go unpunished, rather than authorize police criminality and run the risk of the many and real harms Joh so ably identified.  When I teach Welsh v. Wisconsin, 466 U.S. 740 (1984), students inevitably squirm at the thought that the criminal will just get away, all because the Court was a bit squeamish about warrantless entries in the home.  Maybe the reason this area has remained so unexamined and unregulated isn’t at all about fear of rustling the bushes and releasing the snakes.  Maybe instead it reflects a shift from a bounded view of the place of policing crime in society to something more colonial — able and entitled to travel wherever it might fit.  If so, then that  is the most disturbing implication of all.

Andrew Taslitz

Most judicial opinions and scholarship concerning the history of criminal procedure relevant to constitutional interpretation stress colonial practices and the Framing Era response to them. A small number of scholars have addressed aspects of nineteenth century criminal procedure relevant to one criminal procedure constitutional provision or another. But no one has written a book-length treatment of the impact of the rise of professional policing from the mid-nineteenth century through modern times on the arc of constitutional law. Nor has anyone explored the theoretical implications of such history for constitutional interpretation. No one, that is, until now.

Wesley MacNeil Oliver, a newly-minted Associate Professor at Widener University School of Law, has just recently completed his dissertation – which he plans  to publish in book form in the next few years, and portions of which are currently available in the form of published articles – filling this important gap in the literature.  Oliver focuses his attention on the rise and evolution of the New York City Police Department. His emphasis is thus on state-level developments, but he places them in the context of broader national developments. Moreover, the N.Y.P.D.’s history is likely emblematic of the growth of police departments in major cities nationwide.

Oliver’s history builds toward a three-part argument. First, despite the seeming textual breadth of some of the criminal procedural provisions of the Bill of Rights, they were prompted primarily by concerns about customs officer and other specialized colonial-era abuses, not by worries about the unbridled discretion of professionalized police forces. Law and custom during the Framing Era and the early nineteenth century discouraged police from independently investigating crime, limiting their ability to do so effectively while simultaneously also limiting their ability to engage in investigative excesses. Second, the rise of professional police forces during the mid-nineteenth century, later reinforced by Progressive Era faith in government, led to a period of growing police power and accompanying abuses without serious limitations on that power. Indeed, Progressive Era reforms emphasized ending police corruption, not limiting police authority. Only with the rise of the Prohibition Era did police abuses multiply and reach the awareness of ordinary persons sufficiently to call into question the wisdom of leaving police to self-regulation. Third, the reaction to Prohibition Era abuses is what ultimately led to the Modern Era, combining police power with constitutional and other limits on its exercise. Police power seemed needed to address modern crime, as did limits on police discretion to stop the police themselves from becoming dangerous to the People’s safety and freedom.

Oliver’s ultimate conclusion is that the Framing Era is the wrong place at which to look to guide modern constitutional and other criminal procedural law. Our world of policing is simply too different from theirs. The proper place to look to understand the necessities of the Modern Era is its  response to the earlier rise of a period of a powerful but unregulated police force. Prohibition rather than the Boston Tea Party thus has more relevance to today’s problems.

For example, most investigation of crime during the Framing Era was done by victims or witnesses, not police. An officer, explains Oliver, “would be unlikely to arrest on mere probable cause, for he would be liable for false arrest if no crime had actually occurred.” Instead, therefore, an officer would await a victim’s complaint. Furthermore, “[e]ven where the law gave officers discretion to act, the limited manpower of early forces, the social standing of officers, and the lack of professional or financial incentives generally meant that officers waited for victims to identify culprits.” Nor could officers usually obtain warrants themselves because the affiant was required to swear under oath that a crime had “in fact occurred,” something to which ordinarily only victims could attest. For these and a variety of other reasons, officers lacked the authority and practical ability to investigate crime energetically. A perceived need for more effective means for addressing crime and disorder led to the rise of professional police forces. These forces and their political supporters became a powerful new political group, pushing for changes that eventually led to police having the power to arrest without a warrant and to obtain search warrants based upon hearsay. Police were, however, sometimes encouraged to use violence as a substitute for later judicial involvement in criminal justice. Furthermore, freedom from accountability led to graft and other corruption. A broad and serious exclusionary rule, moreover, did not originally exist, but Prohibition Era excesses, such as dragnet liquor searches, contributed to the rise of such an exclusionary rule as a way to limit police excesses for cases that did reach the courts.

Oliver’s examples include not only ordinary search and seizure authority applied to suspects but also the rise (and temporary fall) of material witness warrants, the growth of police interrogation practices as a replacement for magistrate interrogation, and the viral rise of wiretapping. In each case, Oliver convincingly explains the sharp differences of the Modern Era from its Framing Era roots.

In this short space, I cannot begin to do justice to Oliver’s work, and my encapsulation of it is likely therefore inevitably misleading. But a more detailed examination would do nothing to change my conclusion. Oliver’s well-written, thoroughly-researched, fascinating, and persuasive book makes originalist approaches to constitutional interpretation look silly. If modern constitutional criminal procedural law is to be of any continuing relevance, it must eschew an obsession with any one period of American history, and particularly with the Framing Era. Focusing on the Framers leaves only one of two options: do bad (even dishonest) history to make the Framers seem relevant or leave most important matters of policing entirely beyond the purview of constitutional law. Oliver offers a better way: use the broad sweep of American history as a way to inform, constrain, and empower constitutional law today.

Orin Kerr

I am a big fan of the criminal law scholarship of Paul Robinson. This article in particular is a valuable work of scholarship that should be helpful to any professor or student of criminal law.

To understand the value of the article, consider the beginning of first-year classes in criminal law.  The standard way to teach criminal law is to begin with the two basic reasons why we punish criminal conduct: Utilitarian reasons, such as deterrence, and retributive reasons, such as to achieve “just deserts.”  Utilitarian theories are easy to explain and are intuitive to most students.  On the other hand, criminal law professors generally struggle to teach retributive theory.  The topic seems impossibly vague: Different academic theorists have different theories as to what they personally think retribution should mean, but those academic theories often seem quite apart from what most citizens actually feel.  The result is an uncomfortable gap in which professors teach retribution without offering a clear sense of exactly what retribution actually is or how retributive theories should play into arguments about criminal punishment.

This article, co-authored by Robinson and Penn psychology professor Robert Kurzban, argues that whatever the difference among views of retribution and justice among theorists, widely-shared perceptions of justice exist among laypersons in a particularly important set of punishment questions.  That is, there are types of criminal law problems that generate pretty fixed notions of retributive punishment among most people, as well as other types of criminal law problems that do not.

They make the argument primarily based on a series of experiments.  In the first set of experiments, test-takers were provided a list of 24 different short scenarios involving possible criminal acts.  The crimes included thefts, assaults, robbery, rape, various types of homicide, and other kinds of physical and property-based crimes, all in a range of situations, including some that brought up issues of self-defense, duress, the insanity defense, and the like.  The test-takers were asked to rank the 24 scenarios in order of how much criminal punishment, if any, the wrongdoers deserved.   The results revealed a tremendous amount of shared intuition among test-takers: They shared a great deal of agreement as to what facts deserved punishment and what scenarios deserved more or less serious punishments.

In the second set of experiments, test-takers were provided a list of 12 short scenarios involving crimes that have generated significant public debate: drunk driving, drug offenses, late-term abortions, prostitution, and a few others. Again, the test-takers were asked to rank the scenarios.  This time, however, test-takers revealed a wide range of variation in their views, with different study participants disagreeing as to which crimes were more or less serious and how they compared to the traditional offenses.

The authors conclude with some normative ideas that they develop in subsequent work, the gist of which is that criminal law theorists need to grapple with these surprisingly fixed notions of justice in a wide range of traditional crimes.  Whatever theorists may think people should feel as a normative matter, as an empirical matter, members of the public share surprisingly fixed notions of justice in traditional crimes—and especially the kinds of crimes discussed in a criminal law course. 

From the standpoint of law reform, then, reformers likely need to accept these shared intuitions as settled.  And from the standpoint of teaching criminal law, I would add, professors need to recognize that there are relatively fixed and surprisingly hard-wired judgments widely shared in society that help to generate the legal rules found in criminal law codes and casebooks.

Ron Wright

Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice.  He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.

Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades.  It is an exceptionally timely topic.  Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality.  By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio.  Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years.  Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought.  Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases.

The second major component of this article is a review of the far-flung literature on “restorative justice,” a method of responding to crimes that emphasizes the experience of the crime victim, both during the adjudication of the charge and in the selection and execution of the punishment. After summarizing the diverse literature on this topic (drawn from criminology, psychology, and other disciplines) Simmons moves to the heart of his project:  he draws out the connections between these two phenomena.

Both private policing and restorative justice emphasize the experience of the crime victim, and both grow out of frustration with the public enforcement system.  Just as private couriers respond to shortcomings at the U.S. Postal Service, private policing and restorative justice appear when victims of crime get no satisfaction from public prosecutors, criminal court judges, and public corrections officials.  In this economic analysis, private firms spring up to meet a demand.

Simmons then confronts a dilemma:  private firms have largely succeeded in the realm of policing, but not so in the arenas of criminal adjudication or criminal punishment.  Private police now identify an enormous number of criminal suspects after the fact, but there is nowhere to send them.  The victims of the alleged crimes have few satisfying alternatives to public criminal adjudication or public criminal punishment.  The capacity of restorative justice programs such as victim-offender mediation is tiny, typically measured in the hundreds.

Private capacity to impose something akin to criminal penalties is expanding when it comes to small crimes.  In some of the most interesting and original research presented here, Simmons surveys journalistic sources for evidence that the purchasers of private enforcement impose their own low-level punishments.  For instance, many large retailers (including Wal-Mart) only issue warnings to persons they accuse of stealing small amounts of merchandise for the first time. Property owners eject perpetrators from the premises; employers fire their employees accused of theft and other crimes.

What about private adjudication and punishment for more serious crimes? Simmons suggests (pages 962-967) that parties should resort more frequently to victim-offender mediation in a broader range of cases, without waiting for public prosecutors to file charges or for criminal court judges to refer cases to mediation.  The article explores the possible uses of mediation in serious property crimes, a few crimes of violence in organizational settings (such as employee assault cases), and even intra-family violence.  He envisions public prosecutors as monitors of this private system, standing ready to file charges in the public system if the private outcome does not adequately protect public interests.

As a matter of positive theory, this is a wonderful synthesis.  Simmons offers an economic and historical lens for connecting several different unstable trends in criminal justice today.  Each of these trends can be understood as part of long-term fluctuations between public and private control of criminal sanctions.  This article explains why the privatizing trend reaches law enforcement at the start of the process and punishment at the end of the process, but not the adjudication stage in the middle. Readers can see why dissatisfaction with plea bargaining, sentencing guidelines, crowded prisons, and domestic violence arrests—critiques of criminal courts that span from right to left on the political spectrum—all flow together into a demand for private criminal justice.

At the same time, I believe that this article is less fully developed in terms of normative theory. Simmons does not explain in a satisfying way why the private-initiated adjudications that he imagines have not already taken off, given the obvious sources of demand and funding for it. The article also raises a few questions about the desirability of the private criminal justice system for some important groups of “customers.” Is there any reason to believe that innocent defendants will opt out of the private system at rates any higher than factually guilty defendants?  If not, this is troubling, since criminal mediation begins with the shared premise that the accused person has harmed the victim.

Finally, there are many unexplored questions here of institutional competence. While Simmons declares—in a bit of overstatement—that “the Constitution is the source of all significant limits on public police powers” (page 929), we actually see a great deal of legislative activity in arenas such as wiretapping and (more recently) eyewitness identification procedures.  Much fruitful work in the future might explore which aspects of private criminal justice are likely to attract the attention of legislatures.

Jennifer Chacon

One of the most interesting (and frequently distressing) aspects of teaching and writing about immigration law is the opportunity it affords for studying the interplay between immigration regulations and the criminal law. A number of scholars, including contributing editor Jack Chin, have turned their attention to this interplay before. More recently, in Rethinking Drug Inadmissibility, Nancy Morawetz explores how changes to drug laws and to the inadmissibility standards in the federal immigration law have generated an inflexible, zero-tolerance immigration policy on minor drug use that is in dire need of reexamination.

Because her article highlights the interaction between the criminal law and the immigration regime, it is essential reading for anyone interested in criminal justice. It is also an interesting read for anyone interested in how a few small and relatively thoughtless changes to a complex statutory scheme can have tremendously harsh practical effects. Finally, it is a critical read for everyone who hopes to have a better understanding of upcoming legislative attempts to enact some form of comprehensive immigration reform. As Morawetz urgently notes, “[p]roposals for comprehensive immigration reform in 2007 all included, as a minimum requirement, that the individual be ‘admissible.’” Id. at 182. Thus, absent legislative attention, the sweeping drug inadmissibility rules that Morawetz discusses in this article will likely bar a number of noncitizens with very old and very minor past drug use from normalizing their immigration status, even if the equities of their individual case should dictate a different result.

In the first section of her article, Morawetz discusses the changes to the immigration laws that have generated the harsh modern drug inadmissibility rules. The Anti-Drug Abuse Act of 1986, rushed through in the wake of the death of Len Bias, replaced the then-existing provision that had been interpreted to bar only those convicted of “illicit” drug possession with a provision that cross referenced the law or regulation of a state or foreign country ‘relating to’ a controlled substance. As Morawetz notes, this revision to the drug exclusion ground “opened the way for drug exclusion to automatically expand with state laws that made prosecution easy.” Id. at 172-73. It also meant that from that point forward, drug inadmissibility was keyed not to federal standards, but to the law of the jurisdiction where the individual commits the offense. This has generated not only an expansive but also an uneven application of the bar.

According to Morawetz’ account, the Immigration Act of 1990 compounded an already bad situation. In that Act, Congress consolidated the drug inadmissibility grounds with the grounds for inadmissibility for crimes involving moral turpitude (CIMTs). The effect was to expand the drug inadmissibility grounds to include not only drug convictions, but also admissions of violations of drug laws. Moreover, as the statute was reorganized, the exceptions that were carved out for CIMTs (for youth or petty offenses) did not apply to drug crimes. Interestingly, there is no indication that Congress deliberately set about to heighten the drug inadmissibility bar, and Morawetz suggests that it was a largely accidental result of statutory reorganization.

Finally, Morawetz notes that in enacting the Immigration and Nationality Act Amendments of 1981—the one moment in recent legislative history when Congress did consider expressly the question of waivers for drug inadmissibility—Congress, with the urging of the administration, created an extremely narrow waiver that neither reached “many circumstances that Congress had previously found worthy” of exception, nor allowed for flexibility to cope with the ever-expanding drug laws. Id. at 180. The only available waiver for drug inadmissibility was, and remains, for simple possession of 30 grams or less of marijuana.

In the next section, Morawetz traces out the implications of the inflexible drug admissibility rules. Morawetz first notes that the bar does not simply affect noncitizens who are seeking to enter the country. It also affects many people who are already here and have deep ties to the United States, including those who are seeking to adjust from a temporary visa to a permanent immigrant visa (a green card), and those who are otherwise eligible for relief from removal because of longstanding ties to the country. As previously noted, the bar is also embedded in proposals for legalizing the undocumented.

Morawetz then notes that while the legal changes would be merely academic in the absence of serious enforcement “there are many signs that the drug inadmissibility ground is being applied expansively and that the government has begun to train officers to actively seek out admissions of past wrongdoing that can then be used to exclude or deport the unwary.” Id. at 184. Her discussion of the interrogation tactics encouraged by Federal Law Enforcement Training Center materials highlights the fundamental problem that arises in the context of immigration questioning, where many of the procedural tools used to curb constitutional violations by law enforcement do not apply. Morawetz warns of an increased likelihood of arbitrary law enforcement and racial profiling—a danger that she argues will be magnified by the increasing participation of local law enforcement in immigration enforcement. Finally, Morawetz notes that changes in substantive criminal laws (which have been expanded in many jurisdictions to facilitate drug convictions) and criminal procedure (which has been fundamentally retooled to facilitate the war on drugs) have generated a situation where “drug inadmissibility grounds will be easier to prove in a greater number of cases for noncitizens who have lived in the United States in some capacity.” Id. at 192.

Morawetz argues that the time is ripe for legislative reform of drug inadmissibility rules “because they are counterproductive, allow for arbitrary enforcement of the law, and are totally out of proportion to legitimate interests.” Id. at 193. Her article provides a persuasive case for these claims. She also includes a list of three specific technical fixes that would go a long way toward rationalizing the drug admissibility bar. Alternatively, she proposes the formation of a commission charged with proposing reforms to inadmissibility grounds in a context less highly politicized than that which has historically constrained Congressional action on this issue.