Yearly Archives: 2010

Going Rogue

Apr 1, 2010 Erin Murphy1 comment

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.

Policing Beyond the Framing Era

Mar 25, 2010 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.

The Intuition of Retribution

Feb 17, 2010 Orin Kerr1 comment

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.

Why is Criminal Justice Only Partially Privatized?

Feb 11, 2010 Ron Wright1 comment

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.

When Criminal and Immigration Law Collide

Jan 21, 2010 Jennifer Chacón2 comments

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.