Mar 20, 2015 Jennifer Chacón
Alexandra Natapoff,
Misdemeanor Decriminalization, 68
Vand. L. Rev. ___ (forthcoming 2015), available at
SSRN.
Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.
Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped.
One of the key developments in the purported trend away from severity has been the decriminalization of misdemeanor offenses. Decriminalization takes many forms, from full decriminalization, in which conduct remains punishable as a civil infraction, but not criminal, to less complete decriminalization, in which conduct remains criminal, but the state offers shorter sentences, deferred sentences or treatment options in lieu of criminal punishment. Decriminalization has been heralded as an important step away from the hyper-punitive and racially discriminatory criminal justice policies of the past four decades, and it offers some promise in this regard. While recognizing the potential benefits, Natapoff reminds us that these developments do not necessarily push in a single direction toward decreased punitiveness, greater fairness and more freedom. She reminds us that decriminalization also has its costs.
As Natapoff explains, decriminalization is not the same as legalization, and this difference matters a great deal. “Decriminalization does not render conduct legal. Instead, it typically reduces penalties—mainly incarceration—for conduct that remains illegal and forbidden. Accordingly, while misdemeanor decriminalization eases the immediate punitive impact of the penal system, it leaves in place the vast web of forbidden conduct and its accompanying law enforcement apparatus.” (P. 3).
Natapoff acknowledges that there are many benefits to decriminalization, including reduced incarceration rates, and sometimes reduced arrest rates, and a reduced burden on the very over-burdened defense bar. (P. 4). But these well-publicized upsides are accompanied by some less widely-considered downsides. Natapoff identifies three significant downsides in her article. First, she reminds the reader that decriminalization does not strip the offense of all of its consequences – and these consequences sometimes wind up being identical to those of criminal sanctions. Misdemeanors that carry no jail time may still entail “arrest, probation and fines, criminal records and collateral consequences.” (P. 5). Arrests alone are worrisome enough, and Natapoff reminds us that decriminalization does not take arrests off the table in all jurisdictions. As events of the last few months remind us, the consequences of arrest can be severe and even fatal. Those who resist arrest risk death; those who are arrested successfully can be subjected to intrusive and demeaning searches, checks into immigration status can lead to deportation, and an arrest record that can affect their employment prospects, housing options and education loan opportunities. (P. 28). These possibilities are all the more concerning because many individuals who engage in targeted behavior may be unaware of all of these risks, given the purported “decriminalization” of their conduct.
Also concerning is the fact that those who receive fines for their conduct will often agree to the fines in uncounseled settings. While this seems intuitively acceptable in such apparently low-stakes situations, an individual’s later inability to pay a fine can lead to contempt citations and imprisonment, thereby putting her back in the same place from which decriminalization had promised an exit – but this time without the procedural backstops that the criminal justice system carried with it prior to decriminalization. (P. 29-34).
The second downside of decriminalization flagged by Natapoff is net-widening. Decriminalization “makes it possible to reach more offenders by simplifying the charging process and eliminating counsel [and] other forms of due process.” (P. 5). Simultaneously, it “widens the impact of the net, by turning to supervision and fines as indirect, long-term constraints on defendant behavior, and by extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” Id. In some cases, the extensive monitoring and payment system kicked off by a citation for a decriminalized offense may look much more intrusive than the criminal sanctions that accompanied the offense prior to decriminalization. Natapoff describes the many ways that supervision and fines result in the long-term and intrusive monitoring of certain targets, and reminds the reader that the burdens are not shared equally by members of all races and classes.
The third unheralded downside of decriminalization is its costs for the poor. As Natapoff writes, “decriminalization functions as a kind of regressive tax.” (P. 5). Criminal justice actors who increasingly rely on fines for their funding can and do use the fines for decriminalized infractions as a revenue source. Individuals who are able to pay their fines help to fund the system. Those who can’t pay are the poor – a group that Natapoff reminds us is disproportionately made up of people of color. And it is in poor and over-policed neighborhoods where these fines fall heaviest. Decriminalization can make it more expensive to be poor. As Natapoff writes, “by decriminalizing minor offenses, we risk turning the most vulnerable population into funding fodder for the very institution from which we are trying to protect them. That, paradoxically, makes decriminalization a kind of regressive economic policy masquerading as progressive penal reform.” (P. 5-6).
While Natapoff ultimately views the benefits of decriminalization as significant, her article offers an important corrective to the notion that the current wave of decriminalization is an easy and cost-free remedy for the ills of over-incarceration and discrimination in the criminal justice system. We must confront the possibility that the poor and the disenfranchised – not the most culpable – will be the increasingly fine-tuned and heavily-penalized targets of criminal justice in the era of decriminalization. Natapoff’s article is therefore a very important contribution to ongoing conversation about how criminal justice reform should proceed.
Feb 16, 2015 Kimberly Ferzan
At an informal philosophy workshop on self-defense I attended, the participants noted that their theorizing is relevant to everything from war to torts to preventive detention, but, they reflected with surprise, their work is less important to the criminal law of self-defense. The reason for this is somewhat simple—because the law adopts bright line rules and relies on the defender’s reasonable beliefs, many of the nuances articulated by philosophers are lost.
Adam Hosein’s book chapter is likewise not primarily a contribution to criminal law’s conception of self-defense, but it is a contribution to criminal law’s understanding of necessity. In the guise of questions about the applicability of self-defense to just war theory, Hosein’s piece ultimately has bearing on the criminal law puzzle of lesser versus least evil.
You may have never thought about this puzzle, but it is certainly there. Should the law require that a defendant commit the least evil alternative, or is simply a lesser evil sufficient? On the one hand, if you can do more good than harm, then it seems irrelevant that you could have done less harm than you did—you still did the “right” thing after all. On the other hand, there seems to be something amiss in thinking that one has a free pass to do more harm when a lesser alternative is available.
Examples of this begin with the mundane. Your friend is sick and you decide to drive him to the hospital at breakneck speed. Given how sick he is, you are justified in imposing that risk. However, you can also call 911, which will decrease the risk to pedestrians. If you opt to drive, are you reckless for taking an unjustifiable risk? Examples also range to imaginary trolley problems. Assume that you can turn the trolley away from the five to either a track with one person, whom you don’t know, or a track with two people, both of whom you despise. If you are going to save five and will only save the five if you can turn the trolley to the two, are you justified? Killing the two is the lesser evil, but it is not the least evil.
Hosein’s paper intersects the debate because it asks this question—should the victims of lesser evils justification be entitled to fight back against you, the trolley turner? And are they particularly justified in doing so when you, the trolley turner, could have internalized the risk rather than imposing it on others? He begins in the context of war where a tactical bomber will kill civilians while achieving a justified good consequence. May the civilians fire at the bomber? Intuitions go in both directions. Some might think that of course the civilians need not sit there and allow their destruction. On the other hand, how is it that one is entitled to thwart a justified action?
Hosein’s philosophical target is Jeff McMahan’s claim that because the bomber is justified, the bomber has not forfeited rights. In self-defense theory parlance, the bomber is not “liable” to defensive force. Thus, Hosein is interrogating the claim that “justification defeats liability.” Hosein maintains that it does not.
In a series of sophisticated moves I won’t reiterate here, Hosein argues for two principles. The first is “the principle of just beneficence.” (P. 94). The idea is that if one is going to intervene and distribute a harm, one must do so in the way that “best conforms to the requirements of justice.” (P. 95) And, importantly for Hosein is the underlying premise that “people should bear the costs of their own beneficence rather than displacing these costs on others.” (P. 95).
His second argument is that the civilians may defend against the bomber because the bomber is liable. Specifically, “people become liable to harm when they are going to either violate or infringe a right.” (90). Importantly, Hosein is not arguing that the civilians may prevent the bomber from bombing. The reason is that so doing would interfere with the justified action. But that bar from action has nothing to do with the bomber’s immunity from harm. To the extent that the civilians are able to prevent harm to themselves by shifting the harm to the bomber, without thwarting the bomber’s mission, then Hosein says this is permissible. (Imagine the civilians could use a shield that would deflect the debris from the bomb so that it causes the plane to crash after the bomb has dropped). Hence, any concern we have that the civilians not harm the bomber is not a function of the bomber’s rights but solely a function of protecting the achievement of the good end.
Some of you may ask why I see Hosein as contributing to the lesser versus least evil debate. So ask this question now: May the two people on the one side-track of the trolley shoot you, the trolley turner, so that your body lands on the levers and turns the trolley toward the one? Hosein’s answer is clearly yes. After all, under “the principle of just beneficence,” you ought to distribute the harm justly, and arguably, here the most just distribution would be the least evil. And, because you are infringing the rights of the two, they may defend themselves. Notably, it does seem that you, the trolley turner, are somehow liable to the harm; after all, it seems that your body can be used as a means to accomplish the least evil.
Ultimately, I find myself unsure that Hosein’s principles best account for our intuitions. I am sure he is quite right to parse the inability of a victim to prevent the lesser evil from the potential immunity from harm held by the aggressor/trolley turner. However, at this point, I wonder whether he has shown us something deeper about the nature of liability in self-defense or whether he has shown us something deeper about the nature of justifications. That is, my suspicion is that perhaps the action is, in some sense, not justified after all. This would preserve “justification defeats liability,” but cause us to revisit how we conceptualize whether a lesser evil may be permissible to cause when a least evil is achievable.
Cite as: Kimberly Ferzan,
Finding Old Puzzles in New Places, JOTWELL
(February 16, 2015) (reviewing Adam Hosein,
Are Justified Aggressors a Threat to the Rights Theory of Self-Defense? In How We Fight (Helen Frowe & Gerald Lang eds., 2014)),
https://crim.jotwell.com/finding-old-puzzles-in-new-places/.
Jan 14, 2015 Gabriel "Jack" Chin
W. David Ball,
Defunding State Prisons, 50
Crim. L. Bull. 1060 (2014), available at
SSRN.
Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.
The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs.
The rise of mass incarceration may well result in part from the criminal justice system’s repeal of the law of scarcity. The problem goes beyond the fact that judges and prosecutors faced no trade-offs and thus never had to consider the wisdom of their uses of resources when sentencing to prison. Even though in some set of cases probation, diversion or other alternatives to incarceration instead of prison is cheaper, better promotes public safety, and is less traumatic to the community, local officials have every reason to use these them sparingly, because they are generally required to pay for them. In these cases, free prison is costly and counter-productive.
Professor Ball proposes to give the counties trade-offs in a highly non-coercive way. One alternative is block grants based on crime rates. “Localities would receive funds based on reported rates of violent crime and would be free to spend these monies on prison, diversion, jail, or anything else. The state would continue to administer prisons but would charge counties for every prisoner they sent.”
Under this scenario, prosecutors and judges would face very different choices than they do now. It is one thing to spend millions prosecuting and incarcerating marijuana users and sellers if it is that or nothing; perhaps because it is free, a tough-on-crime judge or prosecutor might find it reasonable to send a three-strike defendant to prison for 25 years or life for shoplifting. But if instead the county could use that money to hire more police, probation officers, or teachers, elected officials would be compelled to confront the trade-offs involved in draconian sentences.
Whatever the details of the system, Professor Ball argues that localities should be forced to bear the consequences of their choices. They need not, he emphasizes, reduce incarceration rates. Police, prosecutors and judges would retain their current discretion; they would be free to impose, for example, even longer sentences on even more people than under the current system. But they would have to find the money, raising revenues or cutting services elsewhere, and they would be politically accountable for their choices. As Professor Ball explains, “[t]he average person could more easily spot the linkage between increasing numbers of prisoners and, say, a decrease in the frequency of road repairs or a shorter public school year, allowing political checks on criminal justice to operate more effectively.”
Of course, there would likely be political objections from those who benefit financially from the wasteful decisions encouraged by the current system. But it is hard to identify principled objections. Under Professor Ball’s proposal, counties could have the criminal justice system they want and are willing to pay for. They could decide whether mass incarceration is the best use of county funds or if other programs and expenditures should have higher priority. And local governments would be encouraged to innovate to protect public safety in more cost-effective ways. Whatever their effect on incarceration rates, these changes can only improve the criminal justice system.
Dec 2, 2014 Jonathan Simon
The police killing of Michael Brown this summer in Ferguson, Missouri, sparked a nationwide wave of outrage at heavy-handed police behavior generally and toward young men of color in particular. But scores of young black men are killed every year by the police, many in even more suspicious circumstances; what made Ferguson different? One significant element was the fact that police left Michael Brown’s body exposed to public view and the hot sun for some four hours. Perhaps even more than the shooting of Michael Brown (which might yet be given an explanation), the exposure of his body for such a prolonged period, conveyed to millions through social media, constituted a striking violation of social norms of respect which appeared to have no possible explanation. Leaving his body to deteriorate in the view of his family and neighbors seemed to reflect the fact that police did not view Michael Brown as a human being, or his neighbors as citizens worthy of respect. The police shooting may in fact have been justified, but their treatment of Michael Brown’s body defiled human dignity
The growing sense that the carceral state (both police and prisons) has become a threat to the human dignity of Americans is an important new dimension of political and legal opposition to the supersized role that it now plays in our lives. Objections to NSA digital snooping, outrage at mistreatment of mentally ill prisoners, and protests against the routinized degradation of “stop and frisk” policing are growing. And these arguments are working not just in the street but in courts, where in Brown v. Plata in May 2011, the Supreme Court reminded American states that prisoners “retain the essence of human dignity inherent in all person[s].” So far, however, the force of dignity has had little influence on challenges to police using their arrest and related powers under the Fourth Amendment.
In “Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a Pointless Indignity,” Josh Bower’s offers us a compelling argument for placing dignity as a core part of the Fourth Amendment analysis of such police action. In addition to showing how important human interests in law are implicated by dignity and ignored without it, Bower’s use of dignity will help reassure dignity skeptics that the concept can be used in a disciplined and judicious way.
Bower’s starts with a case that has frustrated many of the Court’s criminal procedure scholars, 2001’s Atwater v. City of Lago Vista, in which the majority upheld the arrest of Gail Atwater for a minor traffic violation (not wearing a seat or securing her children in seat belts) for which jail was not even a possible sanction once convicted. The case in which the majority acknowledged that the police officer’s behavior was an example of a “pointless indignity” and a “gratuitous humiliation” is a powerful example of the limits of the legality principle as a protection against arbitrary state power. For centuries now, criminal lawyers and criminal law scholars have embraced the idea that state coercion in general, and punishment in particular, must be authorized by discoverable and clearly understandable law. This broad principle has constitutional effect in such doctrines as the bar on “ex post facto” laws and the “void for vagueness” principle. Bower’s argues persuasively that the probable cause doctrine in the Fourth Amendment is another radiation of this idea, here applied to what Michel Foucault would have called the “capillary level,” regulating when the police may interfere with a person.
Yet probable cause, and Atwater, are revealing as to why the legality principle, which for so long seemed a way to make criminal justice more fair and reasonable, has ceased to play this role in the age of mass incarceration. For a long time legality was loosely coupled to progress in reducing the arbitrariness and cruelty of criminal justice. By tying this civilizing process of criminal law to the centralized state and especially its law making power, legality harnessed the power of both democratization and professionalization. As states became more democratic and increased the suffrage and thus the political voice of previously marginalized citizens, criminal laws became less of a crude cudgel of class power and more of an individualized inquiry into guilt. As the exercise of police and penal power came to be tied to professional bureaucracies, the ability to reliably enforce legal values was improved. Neither process was flawless, but as we compare justice in the 1850s to the 1950s, the regression line of respect for human rights is at least modestly correlated upward with both the processes.
But the era of mass incarceration has reversed that. As “tough on crime” became a politically populist message, the historic restraint of democracy on criminal justice has turned into an escalating factor. As the resulting value of “governing through crime” has raised the political influence of prosecutors, and police, lawmakers have generated hundreds of criminal laws designed to increase the reach and scope of law enforcement. Professionalism and modernization of criminal justice agencies has generated its own bureaucratic demand for harsh justice. But if police can use scores of low level possession and simple conduct crimes (like not wearing a seat belt) to pick and choose who to arrest (and then search based on the authority of that arrest), legality becomes a black box surrounding whole groups of individuals and communities that police can act on with virtually no restraint.
Bowers sees dignity joining not replacing the legality principle. Fourth Amendment searches and seizures would require probable cause (the legality principle) and something more: a general reasonableness test in which the dignitary cost to the individual of police action would be part of the equation. As Bowers shows, this kind of general reasonableness has long been part of the Court’s Fourth Amendment jurisprudence, but limited to the areas bracketed off from criminal justice — the so called “special needs” category like school searches, civil warrants, and police stops to address “suspicious” behavior that does not arise to probable cause of crime.
For many observers dignity is just too broad and plastic a concept to place judicial authority on. Of course all of the great values in the Constitution — liberty, equality, and due process are broad. Bowers focuses (as does Atwater) on what should be a fairly uncontroversial core of a right to have government respect human dignity, and not subject its citizens to “gratuitous humiliation.” Humiliation, say being stripped naked, or subjected to unwanted probing in intimate places, subjects a person to a sense of being lower than human status, a subject of contempt to be toyed with. Even if such conduct does no direct physical harm, it denies that the subjectivity of the victim matters. This captures an aspect of the modern concept of dignity that both James Whitman and Jeremy Waldron have pointed to, that is that modern dignity retains a link to the hierarchical and aristocratic conception of dignity which originates in the Greco-Roman culture and survived in various ways in Europe until the 20th century. The modern human rights concept of dignity levels up ordinary citizenship to the dignitary rights of the old aristocracy. The modern citizen does not have the power or assets that sometimes came with aristocracy, but they retain the right to be treated as if their subjective experience matters. As Bowers shows, this concern is not altogether missing in our constitutional jurisprudence, just strangely under developed.
Of course contact with government agents can seem humiliating (like semi undressing in the TSA line), but it is not as humiliating (and therefore not incompatible with dignity) when the purposes for compliance with demands are transparent and reasonable. Not many cases will present as clearly gratuitous as the arrest of Atwater. Police will often have reasons that more closely align with judicial understandings of reasonableness. This is especially true when the suspects are young, black and male (rather than white, female, and a mother, as was Atwater). However, Bowers is right to encourage lawyers to dig into the micro-justifications (and micro-degradations) that are endemic in the policing of minority communities and that have received widespread recognition since Ferguson.
Cite as: Jonathan Simon,
Dignity, too, JOTWELL
(December 2, 2014) (reviewing Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity”, 66
Stan. L. Rev. 987 (2013)),
https://crim.jotwell.com/dignity-too/.
Nov 3, 2014 Aya Gruber
Issa Kohler-Hausmann,
Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at
SSRN.
Most people, both lay and expert, would not quibble with the claim that American criminal justice is primarily adjudicative in nature. Specifically, the criminal justice system is concerned with separating the factually innocent from the guilty (erring procedurally on the side of innocence) and meting out punishment to the guilty. Thus, prosecutors dismiss weak cases and pursue charges only when guilt can be established. The guilty either plead or are convicted after trial, and a conviction is the primary basis for adverse consequences, such as jail and probation. Most would also acknowledge that the adjudicative function sometimes goes off the rails, for example, when aggressive plea bargaining or poorly structured sentencing guidelines coerce innocent people to plead guilty or when excessive pretrial detention attaches to a minor charge. However, often people think of such occurrences as deviations from or perversions of a system that in principal differentiates between the innocent and guilty and punishes the guilty. It might come as a surprise then to find out that in New York City, a very large percentage of criminal cases are resolved completely irrespective of defendants’ guilt or innocence.
Conducting a multi-year ethnography of New York City misdemeanor court, Professor Issa Kohler-Hausmann observed, day after day, prosecutors dismiss cases with ample evidence of the defendant’s guilt and insist on guilty pleas in the face of questionable facts. Contrary to existing descriptions of misdemeanor courts as conviction mills that fail to differentiate between types of misdemeanants or assembly-lines that produce quick but schizophrenic dispositions, Kohler-Hausmann discovered that NYC misdemeanor courts engage in meticulous categorizations of defendants and apply dispositions (continuance and then dismissal (ACD), conviction for a violation, misdemeanor conviction) to the differentiated categories of defendants in predictable manners. However, the categories of defendants are not determined along a spectrum of factual guilt. Accordingly, it is not necessarily the case that the defendants against whom there is weak evidence receive ACDs and those against whom there is ample evidence are convicted of the highest charge. Instead, the NYC misdemeanor system sorts defendants and graduates outcomes on the basis of defendants’ prior contacts with the system. Kohler-Hausmann’s quantitative analysis demonstrates that prior misdemeanor convictions are highly predictive of future misdemeanor convictions, and the probability of being convicted on a pending misdemeanor charge significantly increases with every past misdemeanor conviction. By contrast, prior felony convictions do not correlate significantly with conviction on pending felony charges (although they most certainly affect sentencing once there is a conviction). In short, the more times an individual spends in the misdemeanor court system, the more likely it is that she will be convicted, regardless of the evidentiary strength of the case. In fact, through a series of stunning vignettes, Kohler-Hausmann illustrates just how adverse prosecutors, judges, and even some defense attorneys are to introducing questions of factual innocence into the misdemeanor disposition process.
Kohler-Hausmann also observed that the entire misdemeanor process has little to do with what we commonly think of as criminal punishment, namely, probation supervision or incarceration. Rather adverse consequences come primarily in the form of generating an extensive criminal record, forced presence at court and various administrative and therapeutic service offices, and collateral consequences like job loss. Consequently, the emergent picture of NYC misdemeanor court is a dystopian vision of defendants, primarily economically disadvantaged black and brown men, being sorted, categorized, and marked as minor, moderate, or frequent rule-breakers for ease of management by the state. Indeed this managerial system is a system of serious discipline and social control, just not the type of discipline and control one typically associates with criminal justice. Prosecutors are less “conviction maximizers” as risk managers who engage in various forms of arbitrage and seek to make sure that misdemeanor dispositions reflect, and more importantly, document the defendant’s risk of misdemeanor reoffending.
So why is this vision dystopian? Would it be better if the misdemeanor system were more attuned to procedure, culpability, and punishment? Not necessarily, says Kohler-Hausmann. Adding a layer of criminal procedure would likely add administrative and temporal costs to be borne by defendants. Being concerned with punishment would likely increase incarceration for these otherwise “disposable” minor offenses. The problem is not so much that the system lacks appropriate regard for factual innocence, as the system’s purported benefits (reducing risk) appear to be outweighed by various costs. First, because the system of marking is based on contacts and not on guilt, those marked as serious risks may simply be those who have been swept into system early or those frequently targeted by police. Moreover, recent stop-and-frisk litigation has amply shown that police contact is more a function of the racial and socio-economic character of a neighborhood and its citizens than evidence of serious criminal threat. The picture of poor black men being herded, sorted, marked, and monitored by white government actors should be distasteful to anyone with racial justice sensibilities.
The question then is what can be done. Kohler-Hausman intimates that the problem of misdemeanor management is quite intractable, concluding that a solution “will not be secured merely through new criminal rules and procedure” but “demands a broad movement of social and political dimensions.” Recently, NYC has seen some political will to reimagine a portion of its misdemeanor practice. Last October, New York State’s highest judge, Chief Judge Jonathan Lippman rolled out the “Human Trafficking Intervention Court” to much public fanfare. The court is essentially an alternative diversion court for prostitution cases, and it has promised to treat this category of misdemeanor defendants as true victims and completely eschew any punitive or even criminal model. Will this court change things or will it just be another mechanism for sorting, categorizing, and marking the mostly poor women of color charged with prostitution offenses? My co-authors, Ohio State professor Amy Cohen and Kate Mogulescu, director of NYC legal aid’s trafficking victim’s advocacy project, and I hope to answer this and other questions about the trafficking court in our current research project. In any case, Managerial Justice and Mass Misdemeanors really is socio-legal scholarship at its best. It is ambitious in its aims, meticulous in its methodology and creative and thoughtful in its analysis. It should be essential reading to anyone who seeks a deep understanding of the operation of the current American criminal justice system.
Cite as: Aya Gruber,
Marked!, JOTWELL
(November 3, 2014) (reviewing Issa Kohler-Hausmann,
Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at SSRN),
https://crim.jotwell.com/marked/.
Oct 1, 2014 Elizabeth Joh
Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?
That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)
The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong?
Mistaken factual premises can distort the kinds of questions posed by the Court as well as the doctrinal solutions it develops to address them. Further, a Court decision based on that mistaken view can lead to problematic rules for the police: intervention that is too heavy-handed or ineffectual. Finally, a policing fact of the type described by Stoughton takes on an implicit precedential value of its own. For example, the Court’s description of the use of force by police in Graham v. Connor–which Stoughton picks apart as grossly inaccurate–has itself been quoted more than 2,300 times in subsequent lower court opinions. (P. 887.)
Some policing “facts,” as Stoughton demonstrates, are just plain wrong. Take the exclusionary rule’s modern rationale: police deterrence. While many have criticized the rule’s development and application, Stoughton takes to task the basic factual premise: do the police care about “good” convictions? The simple answer is no. In the vast majority of cases, nothing about the patrol officer’s workaday world hinges on the ultimate conviction of the person they arrest. Convictions carry no weight in an officer’s professional evaluations. Indeed, it may be nearly impossible for the arresting officer ever to find out what actually happened in any one case, given the limited interactions between the bureaucracies of police and prosecutorial administration. Moreover, the informal advice a rookie officer is likely to receive is to deaden herself to the ultimate disposition of the arrestee. Doing otherwise leads to unnecessary professional stress. Thus, police deterrence, while perhaps conceptually appealing, doesn’t square with reality.
Stoughton proposes a number of possible solutions to improve policing facts. The Court could rely upon existing procedural mechanisms like requesting additional briefing from the parties or further oral argument. More ambitiously, Stoughton proposes the possibility of formally acknowledging the independent fact-finding the Court already engages in as an informal matter. For instance, the Court could call on amici to brief specific factual issues. Most simply, the Court might regulate itself so that legislative facts appear in opinions only when empirically supported. (It’s been done before: the Miranda v. Arizona majority opinion cites more than “six police training manuals; three texts about policing; eight academic articles, three news articles, [and] reports by the Wickersham Commission, the Commission on Civil Rights, and the [ACLU].” (P. 855.))
It would be strange if the Supreme Court asserted unsupported “facts” about genetics or economics in its opinions; so why does it do so about the police? Many Americans feel some familiarity with the realities of law enforcement because of its pervasive presence in fictionalized media and the news, even if those depictions are mistaken. Learning criminal procedure from Law and Order might be inadvisable, but it’s not dangerous. Yet, as Stoughton points out in his thoughtful article, when the Court gets the police wrong, that misunderstanding threatens our basic liberties.
Aug 19, 2014 Angela Harris
John Stinneford begins his article by asking the reader to imagine herself a UPS delivery truck driver in Tampa, Florida. He continues:
While on your way to make [a] delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. You do have the right to raise lack of knowledge as an affirmative defense – but the burden rests on you.
Is this legal? Probably. Why is the Supreme Court OK with that? Stinneford’s article explores this question.
For nearly ten years now, through all its three editions, Cynthia Lee and I have begun our criminal law casebook with an excerpt from H.L.A. Hart’s 1958 article, “The Aims of the Criminal Law.” In this article, which began life as a text written for his own first-year students, Hart raises the question, “What is a crime?” He points out that criminal convictions share with tort judgments and other civil sanctions all sorts of utilitarian functions. Having created confusion in the hearts of his students in classic law professor fashion, though, Hart mercifully and immediately dispels it. He quotes a 1953 article by one Professor Gardner: “It is the expression of the community’s hatred, fear, or contempt for the convict which alone characterizes physical hardship as punishment.”
Hart then sticks the landing with a passage I invariably point out to my own first-year students:
If this is what a “criminal” penalty is, then, we can say readily enough what a “crime” is. It is not simply anything which a legislature chooses to call a “crime.” It is not simply antisocial conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a “criminal” penalty. It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
Buried in a footnote immediately preceding this declaration, however, Hart has this to say:
It is, of course, to be understood that Professor Gardner’s statement and the statements in the text do not accurately describe the significance of a criminal conviction under many modern regulatory and other statutes which penalize people who have had no awareness nor reason for awareness of wrong-doing. The central thesis of this paper, to be developed below, is that a sanction which ineradicably imports blame, both traditionally and in most of its current applications, is misused when it is thus applied to conduct which is not blameworthy.
With his article Punishment Without Culpability, John Stinneford returns to these paragraphs and updates Hart’s argument for the twenty-first century. There are topics he omits and arguments with which I disagree – as I’ll outline below — but the bottom line is that I love this article for its accessibility, its insight, and its provocative thesis. Reading it was like having a great faculty-lounge conversation.
For most of the article, Stinneford leads the reader on a trip through the weeds of substantive criminal law, beginning with those strict liability cases to which Hart referred in his footnote, and connecting them to many of the doctrines that make criminal law teachers feel uneasy and dissatisfied, if not downright outraged: the criminal-civil distinction, which permits the state to incarcerate indefinitely people charged with a “sexually violent offense”; the “voluntary act” doctrine, which permits the state to criminalize behavior stemming from addiction, poverty, and homelessness as long as the individual’s conduct contains some element of “choice”; the Court’s “element” jurisprudence, permitting the state to place the burden of proof for any matter on a criminal defendant as long as it is articulated as a defense rather than as an element of the crime; and the embarrassing (although entertaining) spectacle of the Court’s fight over Eighth Amendment proportionality jurisprudence, which has been resolved for the moment with an agreement to defer to state legislatures to impose whatever punishment they see fit on offenders to further any penological goal they like (thus permitting California to sentence a man to life in prison for shoplifting three golf clubs). Each of these doctrines, as Hart and Stinneford recognize, is in tension with the notion that the criminal law has a deep and ineradicable connection to moral blameworthiness. Together, they suggest the dismal conclusion that the Court’s commitment to culpability is largely fictional.
Stinneford might have added to this frustrating tour a couple of other stops: Montana v. Egelhoff, and Clark v. Arizona. In Egelhoff, the Supreme Court considered the constitutionality under the Due Process Clause of a Montana statute providing that voluntary intoxication “may not be taken into consideration in determining the existence of a mental state which is an element of a criminal offense.” The appellant, convicted of “purposely” or “knowingly” killing two people, argued that extreme alcohol intoxication made his commission of the killings physically impossible. (Over an hour after the killings, Egelhoff was discovered by police in a car along with the victims, yelling obscenities, and upon testing registered a blood alcohol content of .36, just below the level when coma and death ensue.) He argued that to prohibit him from arguing that he was unable, due to extreme intoxication, to form the mental states of purpose and knowledge was to relieve the prosecution of the burden to prove every element of the crime beyond a reasonable doubt, in violation of In re Winship, and Sandstrom v. Montana. The Montana Supreme Court agreed. The Supreme Court, however, disagreed, holding that the legislature was simply choosing to return its law to that of an earlier historical period when voluntary intoxication was no defense to crime.
Clark v. Arizona reached a similar result. There, the appellant shot a police officer while apparently in the grip of delusions stemming from paranoid schizophrenia. He both pleaded insanity and argued that his mental illness prevented him from forming the mental states of “purpose” or “knowledge” required for first degree murder. In the state of Arizona, however, evidence of a defendant’s mental disorder short of insanity may not be introduced to negate the mens rea element of a crime. Clark’s insanity argument failed, and on certiorari the Court upheld Clark’s conviction of first degree murder and his sentence of 25 years to life, treating the issue as a matter of the admissibility of evidence and reasoning that “Arizona’s rule serves to preserve the State’s chosen standard for recognizing insanity as a defense and to avoid confusion and misunderstanding on the part of jurors.”
The Court’s reluctance to constitutionalize culpability has not been total, and Stinneford recognizes and discusses various attempts to keep the principle alive. One startling example is the Court’s recent string of decisions limiting the extent to which the state may punish youthful offenders, the latest of which is Miller v. Alabama. But these cases sit uneasily with the deference to legislative prerogative when it comes to adult criminal responsibility.
Where does the Court’s awkward dance with the culpability principle originate, and how can it be resolved? Stinneford argues that the Supreme Court lost its way in the first half of the twentieth century, and that the culprit was what he calls “instrumentalism.” Before the Civil War, according to his account, substantive criminal law was comfortably rooted in history and tradition; courts had no problem finding substantive culpability principles in the Anglo-American common law and upholding them against legislative overreach. Something happened, though, when Oliver Wendell Holmes and Thomas Dewey began to detach law from morality. The philosophy of “instrumentalism” – the position that law is whatever its makers say it is – spoke to these skeptical forerunners of American Legal Realism, and through Holmes and others it eventually reached the Court. Stinneford argues that the culpability principle in criminal law has been one of instrumentalism’s victims. As a corollary, Stinneford argues that the Court’s culpability jurisprudence will not be coherent until the Court abandons instrumentalism and returns to tradition and morality as the foundation of substantive criminal law.
I can’t say I found this claim of Stinneford’s satisfying either as a matter of history or principle. As a historical argument, it doesn’t engage with more detailed and careful histories of American criminal law, such as Gerald Leonard’s. Leonard argues that Holmes’ acceptance of criminal law as a purely utilitarian instrument came out of a longer tradition according to which criminal law serves the purpose of protecting public order without much concern for individual fault. Thus, for example, the legal-moral wrong doctrine in statutory rape, which prevents a defendant from arguing that he made a mistake about the victim’s age – a violation of the culpability principle that is far older than the American strict liability cases.
Stinneford’s article also raises more questions than it answers about what it might mean for this very divided Court to look for the culpability principle in tradition and morality. What if our traditions are misguided? How do we distinguish legitimate moral judgments from prejudice? For example, in Bowers v. Hardwick, the Court was able to point to a long and robust tradition of criminalizing sodomy as a justification for upholding Michael Hardwick’s criminal conviction for going to bed with another man. Defending an equal protection approach to the case, Justice O’Connor asserted that “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Is it OK for the Court to rely on morality when it comes to culpability, but not for the legislature to do so when it comes to deciding what a crime is in the first place?
Or, let’s go back to Egelhoff and Clark. If Bowers shows that history and tradition is sometimes wrong, these cases raise the question of when “tradition” is supposed to begin, and against what baseline “morality” should be measured. As the majority pointed out in Egelhoff, before evidence of voluntary intoxication began to be admitted to negate mens rea, it was disallowed. Before the M’Naghten rule was introduced as a modern insanity standard, an offender was culpable unless he or she exhibited no more sensibility than a “wild beast.” Doesn’t the search for stable principles of morality lead us back either to older judicial pronouncements which might no longer represent social consensus, or to the Court’s own subjective musings – the problem that has led to the current standoff in Eighth Amendment proportionality jurisprudence?
It seems to me that resolving the problem of culpability in our morally pluralized (if not fully libertarian) twenty-first century will require something more, or other, than a return to the past. Stinneford’s argument thus raises the issue I often raise explicitly with my students: Does Hart’s confident declaration that the criminal law represents “a formal and solemn pronouncement of the moral condemnation of the community” make any sense at all today? Americans have not by any means given up moral judgments — after all, they make up 90 percent of reality TV. But is there any longer a coherent tradition from which a court could reliably decide what culpability requires? And even if so, how are the courts to deploy this tradition without fully constitutionalizing substantive defenses and defeating the values of federalism and separation of powers?
Punishment Without Culpability doesn’t answer these questions, but it raises them with clarity. Reading it drove me back into the cases I regularly teach with a new curiosity; it brought me back to Hart’s article; and it got me thinking anew about intellectual history, legal positivism, pragmatism, and that cynic and possible nihilist, Oliver Wendell Holmes. It raises the big question: What do we talk about when we talk about crimes? Stinneford’s article is candy for the brain. Read it, argue with it in your mind, and enjoy the buzz.
Aug 5, 2014 The Editors
Dan Markel
Jul 18, 2014 Margareth Etienne
One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.
A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases.
Not Guilty discloses that jurors tend to acquit precisely when there is insufficient evidence of actual guilt and not for some other idiosyncratic reasons. The authors conclude that the most obvious explanation for a dearth of evidence of guilt is the absence of guilt itself, and not some other far-fetched factor. They find no basis for concluding that other factors are at playIn addition, the authors were able to discern that in most cases, judges and juries base their verdicts on similar factors and tend to come to consistent conclusions regarding guilt, a determination that belies the assumption that jurors are less rational, perceptive or law-abiding than judges in their verdicts. They found one notable exception to this. Indeed, one of the most intriguing and puzzling discoveries the researchers make – and this point warrants greater study and exploration – is that when judges and juries do deviate in their assessments of guilt, race is a significant factor. It so happens that, left to their own devices, judges would convict black defendants at higher rates than juries would, and would acquit white defendants at higher rates than juries. Judges voted to convict African-American defendants and Latino defendants at higher rates than they voted to convict their white counterparts. Without more information, we can’t know whether this difference is grounded in racial bias or some other factor. In any event, what matters to Givelber and Farrell is not understanding the basis for the acquittal gap between juries and judges when it comes to race but explaining the perception that acquittals—when they occur—are based on extra-legal factors. One explanation for this perception of acquittals that also takes race into account may be that several high profile and racially-controversial trials have resulted in acquittals. Think here of O.J. Simpson, Rodney King or George Zimmerman cases and the media attention surrounding them. These cases arguably leave the public with impression that “not guilty” jury verdicts are based on something other than a lack of guilt.
In the end, Givelber and Farrell’s data cannot quantify the degree to which acquittals represent actual innocence. They convincingly argue that no study could prove a negative. Still, their findings support the hypothesis that verdicts tend to correlate with the strength and existence of evidence. It thus opens the door to further examination of acquittals and the circumstances that accompany what we should now assume are wrongful accusations.
Jun 24, 2014 Mary Fan
If you seek inspiration in these times of debilitating negativity toward the law and lawyers, read Gilbert King’s Devil in the Grove. A student who represents the best in the law’s future gave me the book. The gift was far greater than the bound pages or the pleasure of an engrossing weekend. It was a renewal of awe at what the law and lawyers can do to rescue people and change hardened minds and hearts in atmospheres of fear, loathing, and violence.
After Devil in the Grove has inspired you with its excellent history of our recent past, I recommend reading works by two outstanding junior scholars, Allegra M. McLeod and Daniel I. Morales, who are imagining our future. What I love about all three works are the accounts of how law can save as well as destroy and the lessons about how to change mindsets, not just the laws on the books.
First let me begin with the inspiring and horrifying journey into our past: Devil in the Grove. Real-life heroes more magnificent than fiction. Thurgood Marshall, Jack Greenberg, Franklin Williams, and other lawyers risk their lives to defend wrongly accused black men in Southern towns where lynch mobs and children pose grinning next to murdered black men. Marshall is a miracle worker and savior, even securing acquittals in communities astonished at seeing a black lawyer talk in court “as if he were a white man.” People living in fear of mounting racial violence pray and yearn that the legendary lawyer will come protect and rescue them.
Not every case ends in salvation; too many do not. This book focuses on one such case of alleged rape that ensnared four young black men. I will refrain from too many spoilers. Just this: Even when Marshall does not win, he succeeds in changing grizzled, hardened minds, including a memorably drawn old prosecutor, aptly surnamed Hunter, who realizes too late that he was not doing justice and tries to rectify the situation.
Dreamers who hope to transform hardened institutions have much to learn from the brilliant pragmatic tactician Thurgood Marshall. He was disciplined and careful in his selection of cases, for example, limiting representation to the wrongly accused. He took steps incrementally like a chess master who sees many moves ahead. He knew when to dance with powerful law enforcement officials such as J. Edgar Hoover and when to press for action. He held fast to his pragmatic plan for successful change, even against accusations that he was “craven” in moving incrementally. He had a gift for reaching rather than further alienating people of dramatically different worldviews. Hunter exemplifies the power of change. Though a “terrible racist,” he marveled after facing Marshall in trial, “Boy, that’s a great man.”
To criticize and shout for change is common. To create or rebuild something better takes rare brilliance and the talent and pragmatism to speak across the spectrum of worldviews. The lawyers in Devil in the Grove built something greater in the swamps of the basest of human impulses. We live in a much better society because of these great lawyers, who transformed law from a hostage of violence to an instrument of salvation.
Now let’s turn to our present and future. The works of two star junior scholars, Allegra McLeod and Daniel Morales, are fascinating to read after the rousing tales of Devil in the Grove. We have come a long way from the violence-drenched backwoods of our history, but McLeod argues that we have much more to do. She seeks alternatives to “conventional criminal regulatory approaches . . . with all of their associated violence” for communities under surveillance, the incarcerated, and victims of serious crime who risk re-traumatization in adversarial criminal adjudication.
In a recent essay building on prior excellent work, McLeod surveys promising, albeit “unfinished alternatives.” By unfinished alternatives, McLeod means attempts “to change the existing state of affairs through an intervention that is partial, incomplete and in process.” She draws on the work of Norwegian social theorist Thomas Mathiesen, who wrote that “any attempt to change the existing order into something completely finished, a fully formed entity, is destined to fail” because it will be viewed as unrecognizable, implausible, and “disregarded as permanently ‘outside.’” As Thurgood Marshall wisely knew, incremental moves can lay the foundation for a transformation without being crushed at the outset.
McLeod discusses several examples of promising approaches, such as epidemiologist Gary Slutkin’s Violence Interrupters strategy, which draws on epidemiological insights for the management of infectious diseases. The goal is to disrupt the spread of violence through targeted interventions in sites of likely eruption through community-situated educators. For more examples, read McLeod’s essay and the work of the innovators profiled such as Mark A. R. Kleiman’s excellent book When Brute Force Fails (2009) or David M. Kennedy’s rousing Don’t Shoot (2011).
Writing in another polarized context, immigration scholar Daniel I. Morales offers important insights about the need to address people’s perceptions, not just abstract laws. Morales illuminates how harsh laws are symptoms of underlying social resentments and a sense of being besieged that may be further inflamed by reformist efforts that ignore or dismiss—rather than address—such perceptions.
So how might reformers begin to address entrenched perceptions? Here Morales’s ideas are a creative twist on the strategies that civil rights reformers like Marshall used—even as he is careful to distinguish the situation and history of African Americans in the United States from undocumented immigrants. Morales argues for beginning the work of perception change at the ground level rather than focusing on the Supreme Court, the President, or Congress. One of his ideas is allowing citizen juries rather than immigration judges decide whether long-standing resident immigrants should be deported.
I am still chewing over the idea and you may too. While one may muse about feasibility, Devil in the Grove reminds us of the educative and potentially mindset-changing power of courageous lawyers willing to enter communities to try to change hardened perceptions.
Cite as: Mary Fan,
Violence, Yearning, and Hope, JOTWELL (June 24, 2014) (reviewing Gilbert King,
Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (2013); Allegra M. McLeod,
Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8
Unbound 109 (2013); and Daniel I. Morales,
Immigration Reform and the Democratic Will, 16
U. Pa. J. L. & Soc. Change 49 (2013)),
https://crim.jotwell.com/violence-yearning-and-hope/.
