The Pain of Others

Sep 19, 2012 Angela Harris

Angela Harris

Imagine an interrogation chamber, twenty-five years from now. Rather than a dungeon or a prison cell, this space resembles the radiology suite of a hospital. A detainee is strapped to a gurney, electrodes attached to strategic parts of his body, rolled into a functional magnetic resonance imaging (fMRI) scanner, and there held immobile for the duration of the interrogation. Whenever he refuses to answer a question or gives an answer believed to be untruthful or incomplete, the detainee receives an electric shock. As the interrogation intensifies, so does the pain. Suddenly, however, the interrogation stops. The signal has been given from the observation room that the subject’s pain level has reached the threshold for “torture” established by the Geneva Convention.

What does it mean for criminal law, and for international humanitarian law, that we can see and measure the pain of others?

More generally, to what extent can scientific discoveries and technological advances solve (or dissolve) pressing moral debates?

The issue is so central to our intellectual lives today that it’s become recursive, being staged at various levels of scale. At the level of world views, we have in this corner Team Atheism (usually brandishing the banner of science), and in that corner, Team Religion. At the level of institutional survival, it’s about science, engineering, and the professional schools against the humanities. At the level of disciplines, we’ve had attempted beat-downs between physics and philosophy. Within philosophy (which is sharing territory these days with computational science), we have the mind-body problem and the Turing Test challenge. And at the level at which Amanda Pustilnik enters, we see Neuroscience squaring off against Ethics on the playing field of law.

As Pustilnik explains, advances in neuroimaging techniques, including the fMRI and the positron emission tomography (PET) scan, have made pain objective, rendering obsolete Elaine Scarry’s famous declaration that pain is simultaneously the thing most existentially real (to the sufferer) and most existentially in doubt (to the observer). Observers can now look at the various areas of the brain activated by acute pain and tell, with relative certainty, whether the subject is experiencing pain or not. If fMRI measurements are repeated over time with various levels of stimulus, it should also be possible to tell what degree of pain the subject is experiencing.

These developments could, in theory, revolutionize a number of areas of law and policy. Pustilnik discusses two. First, in many states, homicide by means of “torture” – usually defined as the intentional infliction of “extreme” pain — is one basis for a first-degree murder charge. Could a defense attorney someday submit evidence that the pain caused the victim was not “extreme” enough to constitute torture? Could a prosecutor respond with fMRI evidence about the kind of pain experienced by the average (reasonable?) person in the defendant’s situation?

Second, Pustilnik suggests that neuroscientific evidence could be mobilized in order to draw the line between permissible and impermissible interrogation techniques. Many efforts to define torture in international conventions – as well as, Pustilnik notes, the infamous Bybee Memo justifying torture by U.S. officials in the detention center in Guantanamo Bay – turn on degrees of pain inflicted. Could science help set an objective standard for nations and their interrogators to abide by?

Ethicists fearing future unemployment will breathe a sigh of relief that Pustilnik’s answer is “no.” What’s so satisfying about her argument, however, is not her conclusion that ethics still matter, but the way in which Pustilnik uses these neuroscientific advances as a way to explore the moral import of pain and, more generally, the significance of the body to moral and ethical judgments.

With respect to torture-murder, Pustilnik points out that courts have upheld convictions even when the victim was insensate. What we punish when we punish murder by torture is not the causation of a certain amount of suffering, but rather “the corrupt tastes and preferences of the * * * murderer.” But the physical suffering of the victim is not irrelevant to moral judgments, either. For instance, Pustilnik rejects attempts to define torture purely in terms of the level of power the interrogator holds over the interrogated. The right approach, Pustilnik argues, is “embodied morality.” Embodied morality acknowledges that human relations are at least two-dimensional, physical and social. “Torture targets both of these. Focusing on pain measurement to the exclusion of torture’s normative destruction of victims misses half the equation.” Similarly, we know that the torture-murderer’s tastes are “corrupt” precisely because of the pain they would cause a sentient human being.

Pustilnik goes further and examines how the two dimensions of human relations, the physical and the social, interpenetrate. Here she considers a second pair of case studies: Eighth Amendment challenges to the death penalty, and abortion. In both contexts, she argues that “[t]he terms of the debates themselves show that the appeal to pain –a transcendent signifier, a universal proxy for empathy, and a subject that evokes visceral and moral horror –is substantially strategic.” From this perspective, the invocation of pain, the deepest symbol of the vulnerability of the body, signifies that we have entered a moral space. Death penalty advocates challenge the administration of potassium chloride and pancuronium bromide not solely because it is painful, but as a way of challenging the morality of the death penalty itself. Similarly, several states have passed “fetal pain” statutes, requiring that women seeking abortions be told that their fetus can experience pain. Pustilnik argues that the primary work such statutes do is symbolic: acknowledging a fetus’s pain establishes it as a being to whom moral concern is due, thus undermining the moral foundation of abortion’s legality.

Yet the amount of pain caused by these means of killing also plays a role, and not just the fact of pain itself. If a method of execution were completely painless there would be no basis for a legal challenge, and at the other extreme, if the method involved gratuitous pain it would clearly be unconstitutional. And, although Pustilnik asserts that anti-abortion advocates have ignored or rejected scientific evidence that fetuses do not feel pain until birth, the power of films such as “The Silent Scream” is in the suggestion that there is a truth in the body and its suffering. The existence or nonexistence of pain in general tells us there is a moral issue at hand; the measure of pain, the physical suffering of particular beings, is important for weighing the moral significance of the values at stake in each case.

The indissolubility of the physical and the social, Pustilnik shows, goes all the way down, into the scientific measurement of pain itself. Looking at the neuroscientific research, she notes that even our advances toward an “objective” measurement of pain have limits: a person’s experience of pain is mediated not only by the body and the brain but by the mind. The same signals sent through the nerves may be received in the mind in different ways, depending on whether the subject is conscious or unconscious, fatigued or alert, happy or sad. The level of pain experienced also depends on how the subject interprets the meaning of the pain.  David Morris, in The Culture of Pain, has explored the hermeneutic dimension of pain, taking further the distinction Pustilnik notes between “nociception” (the term for activation in the nerves that transmit pain signals) and the felt experience of “pain.” Pustilnik examines the possible sources of false positives and false negatives as observers try to link levels of nociception to levels of pain. The upshot is that our technician watching fMRI images from the control room of the interrogation center twenty-five years from now will still not be able to determine with perfect confidence whether the detainee is or is not experiencing pain.

Pustilnik concludes:

There is an ontological primacy to pain because it is through the suffering of the self that we understand the wrongfulness of causing gratuitous suffering to others; some of this is direct, empathic, and likely physiological. In a sense, such reasoning is grounded in the body’s physicality. And yet, it is also grounded in the body’s status within the nomos which is informed by–but not coextensive with–physiological experience. The experience of the body, both of self and “other,” is also contingent. Sociohistorical context defines which “others” are seen as sufficiently like the self such that their pain experience is credited as real; once categorized, they are deemed deserving of protection from pain. Since such questions as “who can suffer” and “whose suffering counts” define the membership of the community of empathic inclusion, they also define what degree of treatment toward particular legal subjects (whether humans, human fetuses, animals, conscious machines, and others yet to be named) is permissible.

In recent years, neuroscience and cognitive science have appeared to be laying siege to substantive criminal law. New developments in science and technology are poised to help lawyers and their experts predict wrongdoing, assess the responsibility of juveniles, assess culpability, distinguish lies from truth on the witness stand, and decode memories – not to mention helping the police detect illegal activity from afar. At the same time, Stephen Morse has noted in a droll formulation, the excitement generated by new scientific discoveries can lead to “Brain Overclaim Syndrome.”  Rather than seeing a competition between science and ethics or technology and law and weighing in on one side or the other, Pustilnik uses our increasing ability to see and manipulate the workings of the body as an occasion to deepen our insight into the links between body and mind, objective and subjective. The dimensions of the physical and the social, she shows, are the double strands of morality’s DNA. Criminal law necessarily must grapple with both.

Why We Need a Progressive Account of Violence

Aug 6, 2012 Aya Gruber1 comment

Aya Gruber

It seems fair to say that in current criminal law and criminology discourse, Jim Crow analogies are all the rage. The dialogue, and especially Michelle Alexander’s book, The New Jim Crow, is an important and necessary intervention in the national conversation about crime and punishment. Alexander’s book makes the case that the modern U.S. criminal system operates to impose de jure and de facto second class citizenship on African Americans in a strikingly similar manner to Jim-Crow-era laws. The New Jim Crow has received an enormous amount of publicity and has successfully inserted questions of racial hierarchy into what are often insular debates over dessert, deterrence, and appropriate crime management. As much as the Jim Crow dialogue illuminates often ignored or deliberately down-played racial aspects of the U.S. penal state it, like all analogies, is an imperfect comparison. It therefore has a tendency to obscure other factors important to the understanding and critique of mass incarceration—factors like cultural discourses of violence that transcend race, the relationship between incarceration and class and labor, and the role of criminal law in perpetuating and maintaining neoliberal political and economic structures.

This is where James Forman Jr.’s article comes in. In a move that many of his friends and colleagues viewed as head-scratching, Forman, a staunch critic of the American carceral state, decided to set forth a critique of the Jim Crow critique of mass incarceration. Many progressives have a strong instinct that they should stand by the Jim Crow narrative, especially now that it is gaining so much traction. Despite this, Forman makes the case that understanding the limits of the analogy explains why the racial critique of mass incarceration, which has existed for decades, has not succeeded in radically changing support for tough-on-crime measures, even among many African Americans. Forman also argues that concentrating solely on a reductionist racial picture of the criminal system deflects attention from the many other ways that system reflects and reproduces social inequality. In the article, Forman lists six objections to the analogy, but here I want to concentrate on two larger themes of his paper, antiessentialism and accounting for violence.

Turning to antiessentialism, Forman urges progressive incarceration critics to understand that African Americans do not share monolithic views on the criminal justice system, to understand that blacks are not uniformly affected by criminal policies, to recognize mass incarceration’s effects on certain groups of white Americans, and indeed to move past the black-white binary altogether. One might argue that racial critiques of harsh criminal justice will be more persuasive when they ignore prosecution-oriented blacks or write off their attitudes as a product of an unjustly constrained choice between continual victimhood and supporting mass incarceration. Yet Forman says that the cost of this persuasiveness is the perpetuation of an incomplete vision of the relationship between African-Americans and crime control. To make the case that critics cannot dismiss black support for harsh anticrime policies, Forman starts with the anecdote that the Harlem NAACP supported the Rockefeller drug laws and moves to his experiences as a public defender in D.C., fighting to control the upwardly ratcheting criminal system against black prosecutors, judges, and D.C. Council members. The fact that D.C. public defenders like Forman and myself (James was my training director when I was a public defender in D.C.) have had to fight so hard against the tough-on-crime wave in a majority African-American city belies any claim of a uniform African American distaste for prosecutorial policies.

Of course, the question is: Why, if you are an opponent of the oppressive and racist U.S. penal state, would you highlight this weakness in the Jim Crow analogy? One might convincingly argue that Forman’s description of black support for incarceration actually bolsters the familiar “underpolicing” argument that African American communities want and need more, not less, criminal enforcement and punishment. Forman, however, is saying something very different—he is claiming that in order to combat mass incarceration we must understand criminal law, policy, and narrative as a complex tyrannical structure that enlists groups in their own oppression. The importance of this argument cannot be understated. When one makes a simplistic racial case against criminal policies, it is vulnerable to the trump card argument: “Minorities do it.” For example, when critics claim that the LAPD engages in rampant black racial profiling in certain neighborhoods, a common response is that the claim cannot be true because the police in those neighborhoods are predominantly African American. This response can only be undercut by a larger understanding of the how the racialized institution of policing transcends the race of any particular police officer. However, I believe that a critique of both the Jim Crow analogy and the underpolicing argument can be fully achieved only with an account of how the institution of criminal justice in the United States is racially subordinating—despite the existence of black support for it. Given that this article is primarily a response to Jim Crow analogists, it is understandable that Forman stops before the substantive account. Nonetheless, I think his critique will be stronger if read together with other articles that provide such an account or when Forman formulates his own institutional analysis.

While the antiessentialism argument is very important, I think the greatest contribution of this article is Forman’s exhortation for progressives to account for real criminal violence in their critiques of the criminal system. Forman rightly notes that the Jim Crow narrative (and, I might add, other progressive narratives) tends to concentrate on the role of drug laws in constructing the penal state. Such narratives also tend to describe in detail how defendants are subjected to sadistic incarceration, suffer debilitating collateral consequences, and have their rights denied, without mentioning what the defendant did. (Compare this to victims’ rights and pro-prosecution cases and articles that describe heinous crimes in exacting detail.) While this might be a persuasive tactic, it obscures reality and thus makes the critique vulnerable to attack. The fact of the matter is that the majority of people under penal supervision were convicted for acts of violence. Having ignored this inconvenient reality, many progressive criminal justice critics, when faced with questions about violent criminals, murderers, and, more troubling, those who perpetrate bias crimes, either have nothing to say or effectively switch sides. Concerns over mass incarceration quickly recede when feminists, critical race theorists, and others weigh in on whether to eliminate the defense of extreme emotional distress, remove the force requirement from rape law, or narrow self-defense because broad murder defenses give a pass to people like George Zimmerman.

Perhaps this is just the way it is. Maybe the best progressive stance is that certain offenses merit decriminalization (drugs) and other offenses merit more criminalization (domestic violence and hate crimes). But I don’t think so. I think that this position demonstrates that many progressives have internalized the larger cultural sensationalization and cathartic condemnation of violence, which is itself racially oppressive in nature and plays no small part in constructing and maintaining mass incarceration. Forman’s article highlights why we need a progressive account of violence. Critics of incarceration need a way to be able to stare instances of violence, even race and gender-based violence, in the face and unwaveringly maintain an opposition to the carceral state. Forman says that inserting violence into the mix raises “supremely difficult questions that I do not attempt to answer in this Article.”

Nevertheless, he hints at some facets of what a progressive answer might involve, including focusing on prevention over retribution, engaging in the hard/soft determinism debate about responsibility for violent crime, and understanding the role of mass incarceration and tough-on-crime narratives in perpetuating violent behavior. I might add some others like problematizing cultural narratives of the harms of violence, focusing on the political deployment of violence narratives, and understanding condemnation of violence as a distinctly racialized and gendered phenomenon. Defending lenity in the face of violence is a difficult endeavor, but some intrepid scholars have begun to travel down this challenging road. See, e.g, Alice Ristroph, Criminal Law in the Shadow of Violence. I’d like to see more scholars, including Forman, become fellow travelers.

Police Discretion? It’s the Department, Stupid.

May 11, 2012 Elizabeth Joh

Elizabeth Joh

For observers of the police, an arrest is a black hole of decision-making.  I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions.  Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion.  Why this person, and not that one?  Why an arrest, rather than a citation, a warning, or ignoring the problem?  Why arrest on this street corner, and not another one?  Even if you could interview the arresting officer, it’s unlikely you’d get the full story.  Good policing usually involves a mix of training, street smarts, and experienced-based hunches.  Unsurprisingly, defendants often challenge the bases of these choices.  Those police discretion cases that have been decided by the Supreme Court are striking in two respects.  First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment.  Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer.  Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable.  While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences.  A familiar example is the implementation of quality of life policing in New York City in the early 1990s.  With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach.  Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking.  To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland.

While the link between New York City’s crime drop and policing may be disputed, the role of departmental policy in changing officer discretion is not.  The NYPD itself changed some longstanding assumptions about basic street policing.  First, the department directed cops to enforce specific misdemeanor crimes aimed at improving the quality of life.  Second, the department dramatically increased the number of arrests cops were to conduct for these crimes, crimes that might previously have gone ignored or would have received only a summons.  (For instance, by 1996, the department aimed to double the number of arrests for quality of life offenses.  Clifford Krauss, New York Times, Mar. 5, 1996.) Finally, the department made special efforts to focus on places deemed problem areas, such as Washington Square Park and Times Square.  As Professor Sekhon points out, these three discretionary changes–what he terms enforcement priority, enforcement tactics, and geographic deployment–only happen when decisions are made at the top.

From the police point of view, such arrest policies make good sense.  Negotiating, advising, and reprimanding are valuable policing skills, but they are difficult to capture in a data set. Arrest data represent a quantifiable demonstration of “doing something” in the face of a crime problem.  (Indeed, as Sekhon points out, arrest numbers drive the “occupational success” of NYPD officers in a quality of life enforcement regime.)  Arrest numbers were central to the crime control strategy meetings then-Commissioner Bratton instituted at the NYPD that pushed down accountability to precinct commanders.

Yet these departmental decisions can distribute arrests unfairly and probably with more far-reaching consequences than the decisions of any single officer.  As Sekhon argues, too often these discretionary actions result in burdening poor minorities disproportionately.  In 2011 alone, the NYPD arrested more than 50,000 people, most of them African-American or Hispanic, for low level marijuana possession.  And for many of these, arrest, even without conviction, unleashed a host of personal crises: lost jobs, public housing termination, and family court problems (Brent Staples, New York Times, April 28, 2012).

Having clearly shown that departmental discretion can drive inequality, Sekhon argues that arrests that result from these departmental choices should be thought of in terms of distributive justice.  If police managers set arrest policies, these managers must take into account both the benefits and burdens of any particular policing choice.  Specifically, equitable arrest policies should result in arrests made “in proportion to the rate of specific criminal misconduct in specific areas,” as well as avoiding choices based on “highly subjective, impressionistic criteria such as the ‘disorderliness’ of a neighborhood” (p. 1220).  These outcomes require, according to Sekhon, improved data collection and the involvement of prosecutors and courts.

By highlighting discretionary decisions made at the departmental level, Sekhon makes an important contribution to those who follow the police.  I’m perhaps less sanguine about the prospect of convincing courts and prosecutors to take up the cause, but there are many other actors, particularly in a time of internet journalism and activism, capable of influencing departmental choices.  Nor am I about to jettison my concerns about the suspect decisions individual cops make on their own.  But as Sekhon reminds us, police departments have their own distinct role in shaping just outcomes.

Toward Real Criminal Justice

Apr 27, 2012 Christopher Slobogin1 comment

Christopher Slobogin

William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation.  His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing.  His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.

Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious.  He is particularly bothered by the loss of local influence over crime policies.  He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime.  Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes.

Criminal codes and dispositions are also tougher, he contends, because the increasing suburbanization of America has given power to a group that is rarely affected by the criminal law.  Federal criminal law has become particularly harsh because Congress doesn’t have to pay the full price for those who are incarcerated; rather, the threat of federal prosecutions for drug or weapons violations provides state prosecutors with leverage to obtain pleas on state charges.  At the same time, local prosecutors do not internalize the cost of their aggressiveness because states, not localities, pay for prison beds, while community-policing, arguably the most effective method of law enforcement, withers because cash-strapped localities, not states, have to pay for policing.

In Stuntz’ eyes, the current war on drugs is a disaster. He compares our current efforts against the drug trade to Prohibition, which is often held up as another disastrous national policy but which Stuntz calls the “good culture war.”  In contrast to the Volstead Act, which did not criminalize private consumption but only the manufacture, sale and transport of alcohol, imposed relatively minimal penalties for the latter, and both began and ended with a full-throated national debate, Stuntz notes that the drug war has been fought through largely invisible statutes that criminalize possession, minimize mens rea requirements, and allow prosecutors to obtain long sentences.

Stuntz is particularly tough on the Supreme Court.  He lambasts Court decisions during the early twentieth century that aggrandized federal criminal regulatory power vis-à-vis the states.  He is even more forceful in criticizing the Warren Court’s procedural revolution, which he believes has diverted the criminal justice system, and especially defense attorneys, from the enterprise of litigating guilt; instead the system seems obsessed with sanctioning police conduct and avoiding expensive, time–consuming jury trials.  Nor does Stuntz have much praise for the post-Warren Court’s sentencing and confrontation decisions, since they too result in limited flexibility in punishment and made trial less attractive.  Furthermore, Stuntz argues, the procedural protections now in place motivate legislatures to create easy-to-prove drug and weapons offenses, which police and prosecutors pursue in the locations where they are most easily observed: lower-class, often minority neighborhoods.  He posits that the resulting inequity actually contributes to crime in communities where individuals  have lost respect for the system.

Stuntz concedes that the procedural focus of the modern Court is in part the fault of the nineteenth century Court, which stymied regulation of substantive justice by eviscerating the Fourteenth Amendment’s privileges and immunities and equal protection clauses soon after they were ratified.  But he also blames the modern Court for not doing more with the third, due process clause in the Fourteenth Amendment.  He suggests that the Court could have developed a robust due process jurisprudence authorizing courts to strike down crimes that lack solid actus reus and mens rea requirements and permit easy intrusion into private enclaves.

Stuntz’ last chapter suggests reforms that respond to many of these diagnoses.  He wants a re-localization of crime definition, prosecution, and sentencing.  He argues for a re-invigoration of equal protection jurisprudence.  And he hopes for retrenchment on accuracy-reducing procedural protections such as the exclusionary remedy.

A short description like this cannot do justice to the innovative and provocative nature of The Collapse of American Criminal Justice.  I have published a much longer review of the book in volume 31, Issue 1 of Criminal Justice Ethics, which can also be found at SSRN.  But everyone interested in criminal law and procedure ought to read the book.  It will likely change most of your preconceptions about the criminal justice system.

The Other Carceral State

Apr 18, 2012 Erin Murphy

Erin Murphy

Mass incarceration is much in the news lately, and rightly so. With a prison population that surpasses that of the gulags during the reign of Stalin (not to mention the world’s highest incarceration rate — four times the average), it is fair to say that “[t]he scale and the brutality of our prisons … are the moral scandal of American life.” (Adam Gopnik, New Yorker, Jan. 30, 2012). And yet, Alexandra Natapoff’s new article, Misdemeanors, strikingly reminds us that there may still be some competition for that title. Prisoners may own the criminal justice system, but there is still plenty to be said about the millions of renters who spend just an evening or two in its company every year.

Gaining purchase on those transient offenders is no simple feat. Although there is respectable data about felony charges and dispositions in the United States, it is virtually impossible to discern what happens in low level courts. I know this to be true from my own experience: in 2009, I published an article titled Manufacturing Crime that attempted to document the vibrancy of charging what I termed “obstinacy offenses.” In focusing on crimes like “failure to appear,” “false statements,” and “dissuading a witness,” particularly at the state level, I tried to demonstrate that a new breed of process crime was emerging, one intended to penalize simple slights against the justice system itself rather than legitimate efforts to obstruct justice. In the course of researching that article, however, time and again I encountered a shocking dearth of information about minor offenses. At best, all I could marshal was anecdotal or small-scale empirical evidence from a single jurisdiction.

Professor Alexandra Natapoff, wrestling the same problem, comes out much farther ahead. She starts her article by observing that there are roughly ten times as many misdemeanor prosecutions per year than felony cases filed; in 2008, roughly 80% of the over 21 million criminal cases filed in state courts were for misdemeanor offenses. She adds that 13 million people cycle through local jails per year, and that roughly 60% of the jail population at any time are held pre-conviction. In the end, though, she is vexed by the same lack of information: she would like to report even a statistic as simple as how many misdemeanor convictions are entered each year (not to mention for what types of crimes, and carrying what sentences), but lamentably such data is lacking. Luckily, the object of her paper is less to document the exact nature of misdemeanor offenses than to present a compelling case that “petty” crimes deserve our care. Indeed, she argues that “[t]he casual attitude toward petty convictions in general…is exquisitely expressed by the fact that the criminal system often fails to count them.”

In this light, any scholar concerned with the carceral state absolutely must reckon with its oft disregarded counterpart. In Natapoff’s words, “the U.S. criminal process cannot be fully understood or evaluated without acknowledging the centrality of petty offenses.” Why? Because “misdemeanors offer new insights into two of the system’s most infamous dysfunctions: inaccuracy and the racialization of crime.” Specifically, Natapoff describes the criminal justice system as a pyramid in which a very small number of visible cases at the top (either serious felonies or well-represented defendants) receive the procedural protections that legitimate the entire enterprise of punishment, while the enormous opaque foundation (comprised of low-level offenses) is a place in which the rules of “law and evidence hold little sway over outcomes.” With convincing clarity, she describes the complicated interplay among bail-setting policies, police willingness to stretch and fabricate, abdication of prosecutorial screening roles, and absence of a meaningful right to counsel — all of which conspire to generate huge volumes of dubious, prêt-à-porter convictions.

Natapoff’s grievances with this system are many, but among them she overwhelmingly prioritizes a concern for wrongful conviction. She writes that in “a world largely lacking in a scrutinized evidentiary basis for guilt … the risk of wrongful conviction is high.” She notes that the nature of misdemeanor offenses, most of which involve only law enforcement complainants, means that “the process is the evidence” of guilt. Thus, it “becomes more accurate to say that he was convicted because he was arrested,” even though “he may have been arrested for any non-evidentiary reason.” Of course, such “non-evidentiary reasons” are all too often illegitimate: racial bias, law enforcement’s desire to assert control for its own sake, or the need to make policing targets. But chiefly, Natapoff’s concern is that “not only do bulk arrest practices discriminate against minorities, they potentially fill the system with innocent people of color who are then wrongly labeled ‘criminal’.”

While the focus on actual innocence is laudable, in part because she urges a shift in the wrongful conviction discourse away from “discrete pieces of evidence” (like DNA) in high level cases to instead include “the entire procedural apparatus by which people are selected for arrest, screened by prosecutors, and provided defense counsel,” it also, to my mind, somewhat obscures what I think is a critical, albeit for her secondary, point. I see a fine line between her “innocent” defendants – such as the loiterers in Baltimore who are arrested for not moving along on an officer’s request despite no legal basis for the order, or the trespassers in the Bronx charged with fabricated, boilerplate language – and those who may be technically and factually “guilty” of an offense. Isn’t the real crime the reality of exploitative, abusive, and discriminatory policing, followed by a hollow simulacrum of “due process”? As troubling as it may be to admit that we have crafted “a system that has become desensitized to individual culpability and therefore tolerates the imposition of criminal convictions for reasons other than actual guilt,” isn’t it still more troubling that misdemeanor “process” allows the state “to distribute criminal liability based on race and social vulnerability, rather than individual fault.” When you are working in the lowest echelons of “criminality,” I find it a less meaningful distinction that a defendant did or did not possess pot or commit a trespass than that the only people punished for such crimes are those too disempowered to demand better treatment. In short, Natapoff convincingly demonstrates that the charging and prosecutorial practices for misdemeanors represent the total disintegration of the rule of law in criminal justice, and as a result threaten to undermine the legitimacy of the system and compromise the already tenuous relationship between the police and the policed.

In New York City, we know this all too well. Misdemeanor possession of marijuana is the most popular charge of arrest, levied against roughly 140 people per day. But it’s not factual innocence that makes this statistic outrageous, it’s the degrading and discriminatory way that convictions are doled out. And, as Natapoff shows, lawlessness can become so deeply institutionalized that it extends far beyond the frontier guarded by the police. She describes the almost non-existent declination rates in misdemeanor cases in contrast with those for felonies, suggesting lack of any scrutiny in charging for the low level offenses. She echoes the chorus of those decrying “meet ‘em and plead ‘em” defense lawyering. And she painfully reveals how little misdemeanor courts often resemble any kind of courts of law at all with their high churn of defendants, total absence of defense attorneys, pleas taken en masse, and even, in one chilling report, avowed refusal to follow the Constitution. (Natapoff recounts a statement by the Chief Justice of the Supreme Court of South Carolina, who lambasts Alabama v. Shelton, which ensures the right to counsel for suspended sentences, as “misguided” and declares that “we are not adhering to [it] in every situation.”).

This is why Natapoff’s article is so illuminating. The stark ugliness of how “justice” works for the overwhelming majority of criminal defendants in our system has consistently been overlooked in large part because the penalties attached to misdemeanor convictions have been viewed as inconsequential. But one cannot so readily dismiss low level offenses when you realize, as Natapoff painstakingly does, that by sheer volume, they are the system. Nor once you acknowledge that conviction for even petty offenses can unleash a cavalcade of destructive collateral consequences. As Robin Steinberg, Executive Director of the Bronx Defenders, recently observed in a talk that I attended, how many of us would not prefer some time in jail to the loss of our home, or healthcare, or employment, or citizenship, or kids? And that is to say nothing about the most significant consequence of all, which is the deepening rift between those who believe in the basic fairness of our system of punishment and those who doubt and distrust it. As Natapoff observes, “legal guilt is not a stable normative concept but is widely understood to be socially constructed and path-dependent.” For a generation of young minority men especially, “the misdemeanor system also serves a potentially devastating training function,” in that it teaches “that evidence and process do not matter an that convictions are inevitable.” Reading Misdemeanors, is a painful but necessary reminder that the pursuit of “petty” crime is not so cheap after all.

Tinkering with the Machinery of Justice

Mar 19, 2012 Andrew Taslitz

Andrew Taslitz

Ordinarily I would use space in Jotwell to bring attention to up-and-coming scholars. The author whose work I praise here, however – Stephanos Bibas – arrived long ago. But Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press. I do not agree with every jot-and-tittle of his analysis nor every recommendation for reform that he makes. But his vision is a powerful one, he defends it with clarity and grace, and every idea he expresses is capable of starting an important conversation. Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.

Emotions

Bibas argues that our system undervalues positive emotions and distorts negative ones. The positive emotions that are undervalued are remorse, apology, and forgiveness. The negative ones that are distorted are the retributive emotions.

One of the major contributors to undervaluing positive emotions is the guilty plea system. That system permits guilty defendants in denial to avoid confronting their wrongs. In particular no contest pleas (which merely allow the court to treat the defendant as if he were guilty) and Alford pleas (true guilty pleas not requiring the defendant publicly to admit his guilt) free defendants from confessing their deeds before victims. Without such confession, remorse is impossible, and remorse is a necessary prerequisite to apology. Remorse is a first step toward rehabilitation, and apology is an important step toward victim healing. Even feigned remorse and apology, argues Bibas, serve critical functions. On the theory that we partly become what we do, argues Bibas, feigned expressions of remorse and contrition may eventually become heartfelt. Furthermore, public apology itself serves a function in the defendant’s being taken down a peg – his admitting, in effect, that he is of no greater value than his victim, having had no entitlement to treating her needs as worth less than his. This same dynamic occurs with grudging guilty pleas, in which a defendant obviously resists admitting to the facts of the crime until prodded by his counsel or admits to some facts but then adds others intended to reduce his responsibility for his actions. These sorts of pleas lead defendants’ families to believe an innocent person has been railroaded into pleading by wily prosecutors and incompetent defense counsel. These pleas risk encouraging the innocent to indeed plead guilty, leave victim needs for justice and apology unsatisfied, and foster a vision of machine-like disposition over the morality plays that true justice requires.

Jury trials indeed have meaning solely as morality plays, and guilty plea processes should capture some of the jury trial’s virtues. Jury trials provide catharsis and closure to victims and communities. They tell moral tales that, when they result in a conviction, justify temporary condemnation of the defendant. They provide the opportunity for healing and reintegration of the offender into the community once he has paid his debt to society. Without such plays, the community fails to denounce the message implicit in the defendant’s crime that he is of greater worth than his victim. It is the jury’s role to be the conscience of the community, not merely the finder of arid fact. Crime is thus a relational concept, punishment’s role being restoring offender and victim alike to their rightful place as equal members of a community. The guilty plea process, as currently structured, thus ignores the emotional needs of the community as well as the victim. But the process also ignores emotional needs of defendants, whose recidivism and resentment against the system would likely be lower were they given the opportunity to dialogue with victims and community alike with the understanding that true rehabilitation brings with it true return to the communal fold. While not accepting all their teachings, Bibas’s views in this area obviously draw on the teachings of the therapeutic jurisprudence, restorative justice, and victims’ rights movements, as he explains.

As for the negative emotions, such as the desire for retribution, Bibas rejects critiques of these emotions as but primitive cries of rage demanding harsh, disproportionate punishments. Critics of the victims’ rights movement argue, for example, that greater victim involvement will simply lead to demands for still-harsher punishment in an already absurdly cruel system. But Bibas argues, as is addressed further below, that it is elite control of a system shrouded in secrecy that leaves the public and victims factually and emotionally ill-informed. The public and victims wrongly believe that judges are unduly lenient and punishments too easy. Moreover, not faced with the details of a defendant’s life, the burden of judgment, the face-to-face opportunity to see apologies made, the public relies on gut reactions demanding harsh treatment. Yet social science reveals that citizens accurately informed and given the details of a real case generally prefer individualized justice far more lenient than the harsh categorical kind we now administer. The same if often true of victims as well. Even when victims do demand harsh punishments, says Bibas, they at least have a right to be heard and their views seriously weighed. Their testimony also conveys more complete information about the harms a wrongdoer has done. Their views should not control, but they merit respect.

Moreover, insists Bibas, negative emotions serve important purposes. Righteous public indignation at wrongs done reaffirms moral norms essential to communal solidarity. The expression of this indignation is the only way for the community convincingly to express its concern for the victim’s plight and respect for her value. Retributive anger is essential to the message of communal disapproval aimed as well at the offender. He must be powerfully impressed with his transgression and ready to make amends for the harm he has done to merit communal embrace. These emotions are, in my terminology, “negative” because no one wants to be subjected to their holders’ ire. But they serve positive, important social functions, albeit only when they are informed, individualized, and cabined by safeguards against punishment’s being disproportionate to the crime.

Lawyers’ Rule

Lawyers and other elites, says Bibas, now entirely control the system when laypeople deserve a far greater role. Moreover, lawyers act in effective secrecy, checked neither by an informed public nor even informed victims and defendants. Largely unaccountable for their actions, they operate the system in a way that serves their needs rather than those of lay participants and the community. Moreover, working together daily, underfunded and overworked, and being jaded by what for them is familiar and routine, lawyers’ incentives and training are for efficiency over morality. Accordingly, more often than not, defense counsel and prosecutors collaborate to reach efficient results rather than being true adversaries checking and balancing each others’ abuses. Justice, rather than being individualized, becomes quantified in the hands of the experts. A standard robbery has a going rate in terms of time in prison. Negotiations are over stereotypical categories in which to place cases rather than over individualized assessments of guilt and deserved punishment. The result is rapid, formal justice over substantive justice; speed over truth; quantity over quality; bean-counting over moral satisfaction.

Clients are similarly ineffective checks on defense counsel. In a typical case, there is no lawyer-client “relationship.” The two meet briefly, during which time the defendant tells little of his own story, counsel’s primary role being to persuade his client to plead. Clients then attend hearings spoken in a complex and arcane language of sentencing guidelines calculations, psychiatric reports, and rote, scripted “allocutions.” The lawyers do most of the talking, and when defendants do speak, they do so in a ritualized fashion, mere avian puppets parroting as best they can their lawyers’ words. Nor are defendants involved in the negotiations between lawyers talking in corridors. Clients are passive receptacles of lawyer-concocted dreams not the clients’ own.

The same is true for victims. Although victims’ rights legislation may in theory require them to receive notice and have an opportunity to participate, these mandates are often honored in the breach. When they are followed, they frequently smack of empty ritual. Plea bargains proceed to which they were no party, and prosecutors spend but little time, if any, hearing the victims’ tale and helping them to reach informed views. They may make brief statements to the court at sentencing, but they are largely passive observers.

The public also fits this ill-informed, passive bill. Plea-dominance means that the community’s conscience plays no role in individual cases. What most members of the public learn about criminal justice is from a sensation-seeking media eager to gather eyeballs to its product or elected D.A. politicians vying for office by claims to stand up to supposedly lenient judges. The expertise, ethics, and sensitivity to practical constraints on justice practices of the lawyers are needed. But untempered by lay participation and observation, lawyers generate more dark T.V. comedies than the morality plays that justice requires.

Politics

The flip side of lawyer control is lay exclusion. But, as discussed above, that fosters perverse political incentives. Politicians are able to seek harsh, inflexible sentencing options that divorce justice from mercy. Prosecutors have no reminders of what it really means to “do justice,” again allowing efficiency to simulate moral balance, severity to replace communal reintegration. Defense lawyers, seeking just to get by in hard circumstances, become complicit, helping grease the wheels of the injustice machine while creating the illusion of fairness. Equally importantly, however, all professional organizations are hierarchical. Laypersons participate most effectively in individual cases at the local level, such as via juries. But hierarchies naturally look to higher levels for guidance. Greater power and resources in modern societies also tend to drift upward, to higher levels of government, absent local political safeguards like the jury. The secretive guilty plea, assembly-line culture thus permits this centralizing process to continue. That definitionally further excludes lay participants, who need to speak at the local level. Higher levels of government are also detached from the local knowledge that local policymaking requires. The most powerful groups get heard in state legislatures, while less powerful groups are denied the voice they can have when localities – such as the neighborhoods where the disempowered are more likely to live – are largely silenced. Yet it is in these neighborhoods where most offenders and victims in the system live. The system is thus designed to operate in ignorance, entrenching the views of the distant and the elite over those of the local communities where the greatest degree of healing is needed.

Perhaps in Europe this relative political exclusion of the lay public has worked well for criminal justice. But we lack the traditions of an apolitical expert civil service and deference to policy experts that characterizes Europe. Informed lay participation better suits our political culture. It also better reflects the political aspirations of our republic. “America is built on the Enlightenment notion of individualism and tolerance undergirded by virtue,” explains Bibas. Too much skepticism of the need to balance individualism with virtue leads the former to devolve “away from self-restraint toward unbridled self-interest.” Morality thus sustains freedom, and it is the morality of the community, not of the elites, that does so. But community morality uninformed by true facts and undisciplined by the power of the individual case is but another version of elite rule. Elites manipulate the broader public into serving elite needs while enabling the effective silencing of lay participants in individual cases. As Bibas explains,

Voters vividly imagine predators rather than ordinary wrongdoers in a particular case, and their imaginations lead them astray. Sound bites and stereotypes can play on voters’ fears, leading them to push for legislation and referenda. But the calculus changes when jurors look at flesh and blood victims and defendants up close. Good lawyers can humanize their clients so that jurors and others see a real person rather than a racial stereotype. Racial biases appear to be much less powerful when one gets to know people as individuals rather than simply as members of a race.

Political solutions must thus seek informed lay participants individualizing justice in specific cases. But they must also seek an informed public surveying a transparent system, monitoring abuses, and injecting the public’s justice sentiments. Political solutions must restore morality and virtue to the justice system. While justice requires the stigmatizing effects of punishment and the catharsis of retribution, both must also be temporary. Permanent punishments, though perhaps unavoidable in rare cases, undermine the overriding goal of healing all, including the defendant, bringing him back to the communal bosom.

So What Is to be Done?

Bibas recommends a host of reforms, the details of which are too numerous to recount here. But the broad brushstrokes of his alternative criminal justice universe can be painted as aimed at each of the three causes of our present troubles – though all three are also necessarily inter-related.

At the level of emotions, Bibas would act to give victims and defendants more voice, the opportunity for dialogue, and the insistence on acts of contrition aimed at the defendant’s communal reintegration. Perhaps his most controversial suggestion is that defendants be required to work, albeit not on chain gangs or in other ways reminiscent of slavery and for wages. But defendants would have to pay some portion of their wages to the state to offset the costs of prosecution, the victim as restitution, and his family as a mark of responsibility. Non-violent criminals would work outside prison walls. Offenders would also receive an education and job-training in skills useful on the outside. Labor would be hard but not brutalizing, and it would be publicized, even televised. The public would thus see prison time as hard but potentially transformative. Most collateral penalties would be ended so that a defendant who has served his time can live and work like the fully-restored citizen that he now should be.

The emotional needs of lay participants in individual cases would be addressed by greater opportunities for real and informed victim and defendant voice. Victims would not only be notified of events but given plain language summaries after each hearing. Mediation conferences between victims and defendants in many cases would be routine. Victims would be entitled to speak fully at sentencing hearings. They would also have appellate rights, even if only to a sentencing decision’s review by a prosecutor’s superior. Victims, indeed all lay trial participants, would also be asked to complete detailed satisfaction surveys distributed to lawyers and judges so that they have an opportunity to improve their future performance drawing on the laypersons’ comments and vented feelings.

Defense lawyers would be required to have at least fifteen minute private in person meetings with their clients before any felony plea decision. In less serious cases, such consultation could be by video. Defense lawyers must be trained to get their clients’ full stories and to encourage them toward remorse and apology should they plead guilty. Plea hearings would be designed to elicit the defendant’s story and permit his apology. Should the defendant choose a trial, whether his prior record can be used against him should not turn on whether he testifies so that he won’t have an incentive not to speak.

Political reform would be furthered by greater transparency. Detailed statistics would be gathered on prosecutor practices and publicized. Deceptive plea practices like charge and fact bargaining would be banned. Charge bargaining would be allowed, but only if the choice is publicly explained by the prosecution. Most plea bargaining would openly be over sentencing. Prosecutor civilian review boards would supplement those monitoring the police. Prosecutor charging and bargaining policies would be published and rotating civilian monitors would voice their views within prosecutors’ offices and report abuses. Legislation would require police to videotape the entire custodial interrogation process, and vibrant community policing would become the norm. That would include frequent local community meetings to bring all relevant groups together to discuss policing policy.

Elite rule would also be checked by increasing lay participation. Zip-code level grand juries, plea juries to offer input to and perhaps approve or disapprove lawyer bargains, requiring prosecutor written justifications for major decisions to be made publicly available, and restorative sentencing juries would help achieve lay input. Restorative sentencing juries would be large, diverse bodies representative of the neighborhood.  The proceedings would be freed from formalities, require prosecutors to justify their recommendations, and be guided by advisory sentencing guidelines. They would serve after tentative plea deals as well as after trials. They would help, in Bibas’s view, to create community where it is lacking.

Conclusion

Bibas concedes that many of his reforms may be impractical in the short run. He thus recommends modest, gradual change. Here I do not comment on the practicality of his recommendations or the wisdom of each of them. But Bibas’s effort wisely recognizes the continuing power of a central biblical lesson: “Without vision, the people perish.”

Public Criminal Law at its Best

Feb 24, 2012 Jonathan Simon

Jonathan Simon

“Making the Best of Felony Murder” is the culmination of a series of articles (and one book review essay) that have addressed the felony murder rule in American states and precedes a monograph to be published by Stanford University Press later this year. [The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004) (ssrn); The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965 (2008) (ssrn); Meaning and Motive in the Law of Homicides, 3 Buff. Crim. L. Rev. 755 (2000); Felony Murder (Stanford University Press, forthcoming 2012).]  Binder has saved the best for last, and offered us not only a reading of the felony murder rule destined to help wake us up from a particularly telling pedagogic mystification, but a model of history and political theory as analytic tools for reconstructing doctrine.

Throughout this project, Binder challenges the view that felony murder rules are an archaic survivor of a hoary English common law approach to homicide liability (and criminal liability more generally) which endure in contemporary law despite clashing severely with the principles of modern criminal law liability because of their popularity with elected legislatures and prosecutors.  In addition to being a core “lesson” in first year criminal law classes, this view of felony murder arguably anchors a broader modernist conception of criminal law theory first laid down in the 1930s by criminal law scholars such as Herbert Wechslerand Roland Perkins, and refined in our era by giants such as our own Sandy Kadishand Frank Zimring.

Binder attacks this view on every front.  He argues that English common law, in fact, had nothing quite like the felony murder rule.  The belief that it did results from a lack of precision in distinguishing between several features of the English legacy, including overbroad and oft cited (but not followed) statements in Coke’s treatise and the fact that English homicide law turned much more on the centrality of lethal attack as the key actus reus, rather than on any particular mens rea.  The American rule had different origins, emerging from efforts to limit capital punishment through the definition of first degree murder as including killing during certain especially violent felonies, and spread by judicial elaboration to other homicide crimes associated with felonies more generally.

On the normative front, Binder argues that properly understood and limited (consistently with the actual American history of the rule), felony murder rules are quite compatible with modern contemporary intuitions about culpability.  In Binder’s reconstruction, felony murder is a negligent homicide aggravated by the fact that the unreasonable risk imposed on the victim was undertaken for a morally and legally condemnable reason.   In seeking to construct the best felony murder rule possible consistent with its history and most defensible moral and practical objectives, Binder develops a broader theory he calls dual culpability.  In addition to the focus on the cognitive dimension of culpability, i.e., the actor’s expectation of causing harm, he wants to give equal weight to the “moral worth” of the ends for which the risk of harm is imposed.

Much of the article is given over to a very careful doctrinal analysis of current felony murder rules in American states for the purpose of developing a pragmatic approach to legislative (and judicial) reconstruction of the rule to eliminate the many examples of problematic liability which appear in the critical articles and case book sections that have generally condemned the rule.  Binder shows that the major modern objection to felony murder, i.e., that it constitutes a form of strict liability (and one made worse by the severe penalties and moral stigma associated with murder) can and is readily avoided by various approaches including limiting the relevant felonies to those of manifest dangerousness (a kind of per se approach mens rea) and causation rules that require the death to be foreseeable.  Furthermore, the most objectionable cases, those that involve the combination of felony murder and accomplice liability, can be prevented by rules requiring the same mens rea or causation rules to apply to accomplices as they do to the effective killer.  Finally, Binder defends and refines traditional merger rules that require the felony to be independent of the assault on the victim.

These articles, and the forthcoming book, exemplify why Guyora Binder is such a great criminal law scholar.  He is always grounded in history and a sensitive concern with doctrine as expressed in decided law but seeks, in the model of Ronald Dworkin, to see how that history/doctrine can be reconstructed to be more consistent with its best principles.  As a legal theorist he is well grounded in traditional analytic jurisprudence but also in continental legal and philosophical theory, cultural theory, as well as theoretical and empirical social science.

I particularly like these pieces because they represent something very important for our particular historical moment, i.e., the revival of a self-conscious academic engagement with criminal law policy that accepts the inevitably populist and political nature of American criminal law but insists on a serious dialog between academics and the public in the pragmatic tradition of John Dewey.  Recently criminologists have been discussing the need to respond to populist punitiveness rather than wish for a walling off of policy from public discourse.  See Ian Loader and Richard Sparks, Public Criminology? (Routledge 2010).  Making the Best of Felony Murder is an example of public criminal law at its best.

Expanding the Canon

Jan 25, 2012 Jennifer Chacón

Jennifer Chacón

In most criminal procedure classes, Supreme Court cases focusing on immigration policing get short shrift.  Perhaps not coincidentally, much of the academic literature  – including the literature analyzing the role of race in policing – is also insufficiently attentive to relevant cases involving immigration policing.  In Undocumented Criminal Procedure, Devon W. Carbado and Cheryl I. Harris remind us of three important cases involving immigration policing, and highlight the ways in which these cases have structured the jurisprudential framework governing the role of race in “ordinary policing.”  Their efforts could not have come at a better time.

In December 2011, Assistant Attorney General Thomas E. Perez of the Civil Rights Division of the Department of Justice wrote a letter to Bill Montgomery, the County Attorney for Maricopa County, summarizing the results of a prolonged investigation of the Maricopa County Sheriff’s Office (MCSO).  The Department found “reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing.”  The letter continues:

Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices….

That same month, the Civil Rights Division issued findings of similar misconduct by the East Haven police.  Deputy Assistant Attorney General Roy L. Austin Jr. stated: that the Department had found that:

[T]he East Haven Police Department engages in discriminatory policing against Latinos including:  targeting Latinos for discriminatory traffic enforcement; treating Latino drivers more harshly than non-Latino drivers after traffic stops; and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct.   The pattern or practice of discriminatory policing that we observed is deeply rooted in the Police Department’s culture and substantially interferes with the ability of the Department to deliver services to the entire East Haven community.

The findings of these two investigations are deeply troubling.  Why is this happening?

One of the driving forces behind the present wave of racial profiling in law enforcement is immigration enforcement.  Over the past decade, the federal government has rapidly expanded its immigration enforcement efforts.  At the same time, state and local governments have begun to engage in immigration enforcement efforts in ways that have fundamentally transformed the nature of sub-federal law enforcement.  Sub-federal involvement in immigration enforcement has increased in a number of ways, including: through cooperation with the federal government pursuant to formal 287(g) agreements; through state and local participation (sometimes voluntarily and sometimes under pressure from the federal government) in the Secure Communities program; through sub-federal enforcement of constitutionally dubious state and local immigration laws; and through state and local agencies’ ultra vires enforcement of federal immigration law in reliance on an erroneous notion of state and local “inherent authority” to do so.

Scholars who have focused attention upon the intersection of criminal procedure and immigration enforcement have written about the many ways in which the existing criminal procedural jurisprudence gives a green light to racial profiling in immigration enforcement and beyond.¹    The rising tide of immigration enforcement gives new social significance to this underlying jurisprudential reality.  The practical effect of longstanding judicial tolerance for racial profiling in immigration enforcement is that enforcement agencies – both federal and state – encounter little judicial resistance to their practices of profiling.  Indeed, the heated rhetoric of the immigration debate apparently has driven some officials to the conclusion that it is their duty to aggressively police immigration even when the discriminatory policing practices aimed at Latinos is an obvious byproduct of their methods.  Hence, we arrive at situations like those the Justice Department uncovered in Maricopa County and East Haven.  I am certain these communities are not alone.

Under current circumstances, criminal procedure teachers must be ready to introduce their students to the legal landscape that surrounds immigration policing.  For the criminal procedure teacher who has not previously focused their students’ attention on the problem of racial profiling in this context, Devon Carbado and Cheryl Harris’ Undocumented Criminal Procedure provides a good place to start.  In this article, Carbado and Harris argue that three Supreme Court cases that sanction racial profiling in immigration enforcement – United States v. Brignoni-Ponce, INS v. Delgado and United States v. Martinez-Fuerte – should be included in criminal procedure classes and should be central to ongoing discussions about the role of race in criminal procedure.  These three cases, which they collectively label the “undocumented” criminal procedure cases “belong in the interior, rather than at the border, of constitutional criminal procedure debates about racial profiling.”  (p. 1543).

In the article, they pair the three “undocumented” decisions with cases that have been central to contemporary discussions on race in criminal procedure.  Part I of the article pairs INS v. Delgado with Florida v. Bostick.  The Bostick decision, in which Justice O’Connor, writing for the Court, declined to label the suspicionless questioning of a bus passenger a “seizure” for Fourth Amendment purposes, has been “roundly criticized” and “[m]uch of the criticism focuses on the way in which Justice O’Connor obscures the racial dimension of police interaction.” (p. 1553).  After all, it seems clear from the facts that Bostick’s race was a critical factor in the police officer’s decision to question him.  Importantly, as the authors point out, the logic of this case is heavily influenced by the case of INS v. Delgado, decided seven years earlier and involving even more egregious facts.  That case involved a workplace raid in which 20-30 armed INS agents entered the building in “paramilitary formation” and remained, questioning workers, for an hour or two.  Just as O’Connor in Bostick posited that any lack of freedom the bus passenger might feel in leaving the bus was due to the nature of bus travel rather than the armed officers asking questions, Justice Rehnquist had reasoned in Delgado that if the Latino workers subject to an armed workplace raid did not feel free to leave it was “a function of their workplace, not the INS’s actions.” (p. 1561).  The logic of Delgado paved the way for Bostick.  And Delgado’s blindness to the racial dynamics of the situation foreshadowed O’Connor’s race-free analysis of the racial implications of Bostick.

Part II of the article pairs Terry v. Ohio with United States v. Brignoni-Ponce.  The authors map out the racial dynamics that led to the frisk of Terry, and noting the Court’s insensitivity both to the Black/white racial dynamics of the situation and to the impact its decision would have on future policing practices.  They then explain how Brignoni-Ponce extends and expands the most troubling aspect of Terry.  Specifically, while the Terry court focused on the appropriate standard for a frisk in cases where an officer sensed a danger to himself, it did not expressly decide the appropriate standard for making the initial stop. Seven years later, the Brignoni-Ponce decision did so – and it did so by concluding that a brief stop by the INS of a car on the basis of the driver’s “Mexican appearance” in a situation that posed no danger to the officer is “reasonable” for Fourth Amendment purposes.  “This broadens Terry’s holding, which permits those stops only upon reasonable suspicion that a suspect is armed and dangerous.  Moreover, the Supreme Court has repeatedly cited to Brignoni-Ponce outside of the immigration context….,” (p.1577), thereby making clear its applicability for law enforcement outside of immigration enforcement.

Part III of the article pairs Whren v. United States with the much older Martinez-Fuerte case.  Scholars of criminal procedure are quite familiar with the Whren case, in which the court upheld a racially motivated stop of a Black driver by police officers looking for drugs on the ground that the initial stop was objectively reasonable because the officers had probable cause to stop the driver for a traffic violation.  As the authors note, “[s]cholars have roundly criticized Whren on the ground that it creates a constitutional safe haven for at least one form of racial profiling.  Under Whren, so long as police officers have probable cause to stop a vehicle, they can racially select which vehicles to stop based on the race of the occupants.”  (p.1580).  But, as the authors note, “[t]he racial profiling Martinez-Fuerte legitimizes is even more salient” and “creates an even bigger constitutional safe haven for racial profiling than Whren.”  (p.1581).  In Martinez-Fuerte, the Court legitimated immigration checkpoint seizures – referrals to secondary inspections at fixed interior immigration checkpoints – that were performed without any individualized suspicion. The court expressly reasoned that no Fourth Amendment problem would arise even if these stops were made on the basis of the race of the driver or passenger.  Justice Powell dismissed the concern of profiling by noting that, as an empirical matter, the Border Patrol did not rely solely on race, and that “even if it be assumed that such referrals [to secondary inspection] are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation….[R]eliance [on apparent Mexican ancestry] is clearly relevant to the law enforcement need to be served.”  (Martinez-Fuerte, quoted at p. 1582).  The authors conclude that the logic of Martinez-Fuerte  is “tantamount to abandoning the reasonableness standard of the Fourth Amendment altogether.”  (p.1583).

In the remainder of the article, the authors posit various reasons for the relative invisibility of the three “undocumented” cases and dismiss the rationale that renders them marginal to the canon.  This section provides interesting food for thought on questions of how cases become canonical, and how the subsequent framing of the discussion can render wrongs to some groups – in this case, the racial profiling of Latinos – disturbingly invisible.

Of course, the three decisions highlighted by Carbado and Harris are merely a starting point for understanding the depth of the problem of profiling Latinos both in and out of the immigration enforcement context.  The effects of these cases are compounded by the Supreme Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) in which the Court concluded that the exclusionary rule did not apply in deportation proceedings, by Department of Justice guidelines that sanction reliance on race as a factor in federal immigration and in national security policing while forbidding it elsewhere,  as well as by numerous other procedural shortcomings encountered by noncitizens both in administrative removal proceedings and in criminal proceedings.²  Immigration scholars have long been contemplating all of these issues, and the article could perhaps do more to acknowledge this literature.  But for the criminal procedure teacher, Carbado and Harris’ highly readable article provides a clear explanation as to how three important immigration-related cases fit within the surrounding criminal procedural landscape. It succeeds in explaining why a coherent effort to study the Fourth Amendment must pay heed to these decisions.  And, if heard, their call may help prod more professors and students to think more about one of the most interesting law enforcement issues of our time.

1. See, e.g., Jennifer M. Chacón, The Expansion of Border Exceptionalism, 38 Fordham Urb. L. J. 129 (2010); Jennifer M. Chacón, A Diversion of Attention?: Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L. J. 1563 (2010); G. Jack Chin, et al., A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070, 25 Geo. Immigr. L. J. 47, 65-72 (2010); Kevin R. Johnson, How Racial Profiling Became the Law of the Land: United States v. Brignoni-Ponce and Whren V. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L. J. 1005 (2010); Kevin R. Johnson, Racial Profiling After September 11: The Department of Justice’s 2003 Guidelines, 50 Loyola L. Rev. 57 (2004); Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. Davis L. Rev. 1147 (2008), Huyen Pham, When Immigration Borders Move, 61 Fla. L. Rev. 1115, 1149-1163 (2009).
2. Chacón, A Diversion of Attention, supra, at 1623-33; Chacón, Border Exceptionalism,  supra, at 162-63.

Excluding Sexual Pattern Evidence of Rape Complainants When the Defense is Consent

Nov 28, 2011 Myrna Raeder

Myrna Raeder

Professor’s Tuerkheimer’s article, Judging Sex is a valuable addition to the debate about where the line should be drawn when balancing the privacy of complainants in rape cases against the evidentiary and constitutional dimensions implicit in the right to present a criminal defense. She approaches the long-standing controversy with fresh eyes, arguing that any probative value imputed to sexual pattern evidence of complaining witnesses in an earlier era is clearly inapplicable in light of current sexual mores, thereby exposing the only basis for permitting such evidence as an inappropriate reliance on views of morality and sexual deviancy that no longer ring true. As a result, she presents a strictly evidentiary analysis of probative value (Rule 401) and prejudice (Rule 403), rather than falling back on the policy justifications for rape shields, which encourage rape reporting by protecting complainants from being subjected to detailed, embarrassing and often humiliating questions about their sexual histories.

Admittedly, rape shields also assume that the probative value of sexual history is low, and therefore make a categorical determination that the probative value of the evidence is substantially outweighed by considerations of complainant privacy and prejudice to the state when jurors refuse to convict because “she asked for it.” However, even today some rape shields permit sexual pattern evidence of the “alleged victim,” and interpretation of the Federal Rape Shield’s “exception” for constitutionally required evidence occasionally reaches the same result on the grounds that promiscuity, whether by numbers or types of sexual encounters, tells us something about consent in the current incident. By debunking the probative value of sexual pattern evidence, Tuerkheimer demonstrates that in the modern sexual environment, pattern evidence should only be admitted rarely when employing the probative value/prejudice (401/403) analysis. This conclusion also suggests that the Confrontation Clause would rarely require the admission of such evidence.

She points out that this analysis is particularly significant now because the consent defense in rape cases has become ever more popular given that the presence of the defendant’s DNA defeats any claim that he did not engage in sex, a staple of pre-DNA argument. As a result, consent is the only viable defense, even in some stranger rape cases. Moreover, prosecutors are now more willing to try acquaintance rape cases. However, in today’s world it is not uncommon for complainants to have a number of consensual sexual partners, with whom they may have engaged in anal, oral and even group sex, besides more traditional intercourse. Thus, even if prosecutors are more willing to try these cases, are they winnable if the judge lets jurors hear such pattern evidence?

The porous nature of rape shields is a topic I previously lamented about in Litigating Sex Crimes: Has the Last Decade Made Any Difference, 6 International Commentary on Evidence Art. 6, at 16-17 (2009):

Undoubtedly, the largest category of potentially rape proof women whose privacy is not guaranteed by shields is composed of young independent females, whether students or workers, who assume that drinking, partying, and freely engaging in consensual sex is not an invitation to be sexually assaulted, and view promiscuity as a feature of modern society.

In other words, they are caught up in the double standard that encourages sexual freedom for females, but then blames them for engaging in such behavior as inviting unwanted sex when they contend an act was not consensual. This disconnect is not surprising given that the judges and even jurors who assess these young women’s behavior are older, and often reflect social mores that are unforgiving of females who openly proclaim their sexuality. My suggestion was to deny admissibility unless the probative value of the specific pattern evidence could be demonstrated by clear and convincing evidence as a way of making its introduction more difficult. In contrast, Tuerkheimer asserts that even under current evidentiary standards sexual pattern evidence does not logically support a finding of consent. While I think this is a stretch in an “any tendency” FRE relevancy regime, I agree that the recent surveys she cites concerning sexual practices should overwhelmingly support exclusion under a 403 rationale, and as she suggests the only likely time that such evidence would be constitutionally required is when the prosecution has somehow opened the door to its use through overstatement or presentation of misleading evidence.

The recent attention-getting evidence she cites about changing sexual behavior comes from the 2010 National Survey of Sexual Health and Behavior, which finds that at least forty percent of women between the ages of 20 and 49 have engaged in anal sex, and most have engaged in oral sex. She also notes that a different national survey in 2005 found that among women over 25, about one in five had 7 to 14 sexual partners, and half of teenage girls engaged in vaginal sex. While one can always question precise estimates on the basis of faulty research methodology, undoubtedly applying outdated concepts of chastity to the “hook-up” generation results in inappropriate inferences about any link between sexual patterns and consent.

Tuerkheimer explains that rape shields rejected the view that sexually promiscuous women were more likely to consent to sex on any given occasion and that promiscuity indicated immorality that would render them untruthful. As a result, theories of admission shifted to “similarity” of past sexual encounters to the charged crime. She debunks treating sexual patterns like habits as ignoring the volitional character of sex. Similarly, she argues that sexual patterns cannot be considered abnormal, and they do not rest on statistical views of deviancy, but are in essence a judgment about the “appropriate bounds of female sexuality.” She discusses Gagne v. Booker, 606 F.3d 278 (6th Cir. 2010), which has been vacated and is awaiting an en banc decision by the Sixth Circuit. Gagne involved sex with two men, which the defendants claimed was consensual. The trial court excluded evidence of previous three way sex involving the complainant and one of the defendants who at the time of the earlier encounter was her boyfriend, as well as a different third man. Professor Tuerkheimer analyzes the varied opinions by the panel that reversed the conviction, finding that the majority’s opinion was animated by its view that the complainant’s behavior was deviant, that having sex with more than one partner was unique, and that the complainant’s excessive drinking vitiated the rationale of rape shield protection. She rejects these views as ignoring that the identity and relationship of the sexual partners matter, and that consent depends on the type of sexual activity with the particular person at the particular time in question. Therefore, she calls consent “contingent” and concludes that consent on one occasion is “not probative of consent on another.” She also reasons that the asymmetry between views that engaging in vaginal intercourse does not suggest propensity, but anal sex or three-way sex does, demonstrates this distinction is based on morality not probativity. Ultimately, she observes it is context that makes any prior sexual incident admissible, not simply the fact that the defense is consent.

While I might have wished a bit more attention to sexual patterns when the complainant is a prostitute or has a mental disability, and a discussion of the admissibility of expert rebuttal if such evidence is permitted, the article poses an important challenge to the status quo and suggests that judges as well as the rest of us need to put aside outdated assumptions when evaluating sexual pattern evidence. However, as I have discussed elsewhere, I think that some judges who are in jurisdictions where evidence of the defendant’s prior sexual acts are widely admitted are more willing to admit pattern evidence of complainants. In other words, they consider it unfair that the complainant and the defendant are treated so differently, although the rationales for rape shields and bad act evidence are completely dissimilar. Personally, I am no fan of propensity reasoning as it affects either the complainant or the defendant.

Moreover, I think judges and jurors distinguish between different types of defendants. A college student whose conviction will brand him as a sexual predator, and subject him to lifelong registration as a sex offender after he serves what may be a lengthy sentence benefits from the sentiment that Susan Estrich once described by saying “it is far easier to condemn date rape than it is to condemn the date rapist.” Until attitudes about sex, drinking, and victim blaming change, rape shields are likely to continue to be inconsistently interpreted. This raises the question of how to change public attitudes to overcome moralistic reasoning that is unduly sympathetic to defendants charged with acquaintance rape. Cultural shifts do occur. For example, there has been a sea change in attitudes about drunk drivers stemming from MADD’s campaign that drinkers should appoint designated drivers. Realistically I think cultural shifts require more than a good analytical argument, but Professor Tuerkheimer’s article provides support for such a change.

Does Hard Determinism Require “Funishment” Instead of Punishment?

Oct 28, 2011 Kimberly Ferzan

Kimberly Ferzan

The implications of determinism have long bedeviled our responsibility practices.  If one starts with the premise that human beings are not “uncaused causers” but rather are comprised of beliefs, desires, values, and reasons that are themselves unchosen, then one begins to wonder how we can be responsible for our actions.  Although compatibilists believe that responsibility is possible even if determinism is true, hard determinists believe that we are determined and that blame and punishment cannot be reconciled with that fact.  Because individuals do not choose who and what they are, hard determinists maintain our current punishment practices are completely unjustified as criminals do not – indeed, cannot – deserve to be punished.

Enter Saul Smilanksy.  In his marvelously playful and thoroughly convincing article, Smilansky questions exactly what will happen in a hard deterministic world.  The answer may surprise you – punishment will have to give way to “funishment.”

Smilansky challenges the reader to take seriously hard determinism’s claims on us as a society and what we would actually have to do if hard determinism were true.  The problem begins with criminals.  Even if free will is an illusion, criminals are real, and there will still be criminals.  Society will have to do something with them, even if it is true that criminals do not deserve punishment.  So, because there will be fewer criminals than law-abiding citizens, the criminals will have to be segregated.  (Smilanksy can be read as presupposing recidivism, though one could also argue that society would abandon criminal law per se and replace it with a purely preventive system of incapacitation.  The latter possibility would still place the same demands on society and support Smilanksy’s reductio.)  Because the criminals do not deserve hard treatment, however, the conditions will need to be favorable.  Moreover, because society is removing these individuals from society for society’s benefit, the criminals will need to be compensated (just as society can’t take your property for its benefit, etc.). And so, where and how criminals live will have to be pretty nice, pretty nice indeed.  Specifically, Smilanksy argues that although “fun-zones” would need to be as secure as prisons, they would otherwise need “to resemble five-star hotels, where the residents are given every opportunity to enjoy life.” (355).  Smilanksy argues that “no effort and no expense should be spared” and claims that “opulent entertainment” would be required.  (355-56).

One can imagine how this story unravels.  The nicer the fun-zones become, the more attractive they become.  The more attractive they become, the more people find crime will pay (one way or the other).  And soon, you have law abiding citizens who hate criminals all the more not only because crime is rampant and their safety undermined but also because criminals have a strong claim to tax dollars for their fun zones.  Smilanksy concludes, “Hard determinism is, in practice, self-defeating.”  (361).

This is a tremendous piece of legal scholarship.  As I read this piece, part of me was transported as I was when I read Ursula K. LeGuin’s  “The Ones Who Walk Away from Omelas.”  This article is not, however, a short story where the message is clear from the fiction.  It is a rigorously argued piece of philosophical work.  At each and every stage at which the reader might balk – be it why there is such a demanding claim on citizens to turn prisons into fun zones, to why crime would be attractive, to the merits of a practical reductio, Smilansky painstakingly makes the case for each step in his argument.  It is a wonderfully accessible piece for the novice and a must-read for expert.   Criminal law theorists simply have to read it.  And, among us compatibilists, we will blame you if you don’t.