Governing Through Sex Crimes?

Oct 22, 2010 Angela Harris3 comments

Angela Harris

Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.

Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture.

The crisis is our national moral panic about sexuality, especially sexuality involving children. Corey Rayburn Yung has written several doctrinal articles on this topic, and he also writes a blog on sex crimes. In a forthcoming article, The Emerging Criminal War Against Sex Offenders, Yung pulls together developments in a number of doctrinal areas and concludes that the United States is in the process of launching a “war against sex offenders,” similar to the War on Drugs (or the War on Terror, for that matter, but Yung does not discuss this point). Criminal justice policy becomes “war,” he argues, when several conditions are met. First (this point is only implicit in Yung’s argument), it becomes a national political and social issue, instead of being left to state and local governments. The federalization of sex offender law began, Yung argued, in 2006 when President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act, which among other things made it a crime to fail to register as a sex offender and created a new federal apparatus, SMART, to enforce the statute.

Two other conditions that distinguish a criminal “war” from ordinary criminal justice policy, for Yung, are the marshaling of extraordinary resources to pursue the campaign and an investment in what he calls “myth creation” (others might call it “ideology”). Yung runs the numbers and asserts that to date, federal resources allocated to the crackdown on sex offenders exceed those allocated to drug enforcement just before President Richard M. Nixon formally announced a War on Drugs. He also points out the most striking characteristic of the national panic about sex offenders – our extraordinary cultural interest in them, represented in everything from long-running and popular television dramas like Law and Order: SVU, to television talk shows (Oprah alone has devoted countless hours to the harms of child sexual abuse), to the many state criminal statutes named after individual child victims. This intense interest, moreover, is sutured to widespread misconceptions, such as the assumption that strangers luring children over the Internet pose a significant danger; that “child molesters” are hopeless recidivists who can never be successfully rehabilitated but only incapacitated by long prison offenses and continuous post-prison surveillance; and that “sex offenders” constitute a homogenous category of people. Most of all, the war on sex offenders is fed by the belief that the sexual abuse of children is not only morally reprehensible but irreparable: Destroying innocence, it destroys lives. Being sexually abused is not only bad but sinister, a “fate worse than death” as Yung puts it. This predominance of fantasy over reality creates the problem of good money thrown after bad. Scholars use the pejorative term “moral panic” precisely because such outbreaks of anxiety do more harm than good; public policy based on wrong assumptions is pretty much guaranteed to be both extraordinarily expensive and largely ineffective as millions of dollars are thrown at the wrong target.

Perhaps the most important indicator of when a criminal justice policy initiative has become a full-scale war, however, is when what Giorgio Agamben, following Carl Schmitt, calls a “state of exception” is created: the lifting of normal prohibitions on state power in the name of protecting the state. A nation at war is assumed to be in a state of emergency, and ordinary civil liberties, it is argued, must be curtailed for the sake of national survival. Yung argues that the constitutional victims of the war on sex offenders so far have included the Ex Post Facto clause, the Commerce Clause, the Sixth Amendment right to confront witnesses, and the Due Process Clause right to notice of criminal regulation. This aspect of criminal wars is the most worrying for people who care about the rule of law. The power of the state, not only to take lives but to destroy them (as in the many sex offenders who have been effectively “banished” from their communities), is immense. Once rolled back, civil rights and liberties are difficult to restore. And “mission creep” is endemic to large-scale, well-funded, and popular institutional initiatives. Pretty soon, teenagers “sexting” one another are going to find themselves prosecuted as sex offenders. Oops! That’s already happened.

Yung adroitly synthesizes recent doctrinal and political developments, bringing us news from the front lines of the war. To truly get a handle on the war against sex offenders, however, even more background is necessary. Polemicist Laura Kipnis examines the strange convergence of interest between law enforcement and child pornographers in her 1999 book Bound and Gagged: Pornography and the Politics of Fantasy in America. For deeper historical context, read Philip Jenkins, whose 1998 book Moral Panic: Changing Concepts of the Child Molester in Modern America identifies three distinct twentieth-century panics over child sexual abuse, peaking in 1915, 1950, and 1985. At the conclusion of his book, Jenkins suggests that the most recent panic, rather than ebbing, has become “perpetual.” Taking “perpetual panic” as the title for his “editor’s observations” on a Federal Sentencing Reporter issue on sex crimes, Michael O’Hear has argued that one reason the cultural hysteria over child sexual abuse and thus the war on sex offenders has endured, while the war on drugs seems to be slowly winding down, is the intertwining of concern about child sexual abuse with the victims’ rights movement. The victims’ rights movement, in turn, has borrowed moral credibility and the language of therapy from the feminist movement. O’Hear’s provocative suggestion takes us to another article I love but have no room to discuss here: Aya Gruber’s Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581 (2009). Just trust me: You should read it.

Yung brings us an important update and some historical perspective on a troubling development in contemporary American criminal justice. His article leads me to wonder what a critical legal scholar might ask. Is the condition of “moral panic” an exception in criminal justice? Or, as my colleague Jonathan Simon suggests, is governing through crime – or “criminal wars” – the new normal? Yung’s article also leads me to wonder, once again, about the meaning of our national obsession with child sexuality. Is it just me, or is there something a little weird going on? Yung reminds us, finally, that the most interesting work in criminal law and procedure does not stay doctrinal, but probes the connections among law, politics, and culture.

Shining the Light on Negligence

Oct 8, 2010 Kimberly Ferzan1 comment

Kimberly Ferzan

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.    

Sher’s foil is the “searchlight view.”  When an agent performs an action, she is conscious of some potential consequences – those consequences are the ones on which the beam of light shines.  However, the beam may also be too dim or too narrow to illuminate all the consequences and aspects of the act.  The searchlight view rejects that we can be responsible for those aspects and consequences of which we are not conscious (or at least passively aware).

Sher believes this view is popular but wrong.  He introduces a range of hypothetical cases to reveal our “ground-level judgments” are inconsistent with the searchlight view.  For example, he offers Alessandra, who picks her kids up from school but leaves her dog in the car, despite it being a hot day.  Although this is usually a quick errand, Alessandra faces problems with her children when she enters the school and forgets the dog.  After a few hours, the dog is unconscious in the car.  We also meet Scout, who while babysitting a colicky baby, decides to calm the baby with fruit juice and vodka.  Scout does not know alcohol is bad for babies.  The child is rushed to the hospital for alcohol poisoning.  Sher argues that we blame both Alessandra and Scout. 

Sher then returns to the “searchlight view.”  His central argument against the view is that it gains its appeal from looking to our practical reasoning, the first-person standpoint about what we ought to do.  Sher argues, however, that responsibility is not comprised of only this view, but rather, that we make responsibility attributions from the third-person standpoint and we look at actions retrospectively.  Alessandra may forget the dog is in the car, and thus this fact has no bearing on her practical reasoning.  But, we can (and she can) look back at what happened, and say that she is responsible for the harm to her dog. 

Sher also takes on the argument that it is unfair to hold people responsible when their lack of foresight deprived them of the requisite control.  Sher rejects this argument because agents are “constantly being influenced by normative demands of which they are not conscious at all.” (66).  These demands range from the rules of logic and physics to situations in which individuals do not even consider lying or act kindly reflexively.  In these cases, the demand’s reach extends beyond the conscious self to the agent’s cognitive and motivational systems.

Sher ultimately defends a capacious view of responsibility.  He claims that we are responsible when are actions fall below an objective standard and our unawareness is “caused by the interaction of some combination of [the actor’s] constitutive attitudes, dispositions, and traits.” (p. 88).  In reaching this conclusion, Sher moves through two problems that perplex criminal law theorists:  can an individual be responsible for what she “should have known?” and how and when should be individualize the reasonable person test?

Sher analyzes the “should have known” framework.  This is an extraordinarily careful chapter and should be required reading.  Sher searches through different formulations of the “should have known” standard to see how and whether we can tie this abstract objective standard to the agent in a way that makes it appropriate to say that failing to meet the standard brings the agent “into close enough relation to its wrongness…to justify us in …punishing [him]….” (76).  Ultimately, “should have known” is not enough; it substitutes one standard (the underlying wrongfulness of the behavior) for another standard (what the actor should have known) but fails to connect either demand to a fact about the agent.

Sher therefore looks to facts about the agent that will supplement the objective standard.  Sher argues that “a responsible agent is best identified not only with his subjectivity or rationality but also with their causes.” (121).  This is a very broad view of the “responsible self.”  This leads to the question of what counts as the agent (the root of responsibility) and what counts as the situation (the facts which must be taken into account).  Here, Sher, briefly taking on some feminist legal literature, defends a fully objective view.  The answer to the question is that all traits that belong to the agent and make her who she is are not aspects of the situation that we ought to individualize.  However, to curb concerns that, say, the blind cannot see and the paranoid cannot act rationally, Sher introduces a capacity requirement.   The epistemic requirement of what one should be aware of is actually an “ought” from morality.   Hence, when an agent lacks the capacity to comply, morality cannot mandate otherwise.  An agent only “should have known” if he “could have known.”

At the end of the day, I’m still worried about punishing negligent actors.  First, I am not quite sure how we are to parse the relationship between responsibility and culpability and blameworthiness.  When Alessandra takes responsibility for harming her dog, in what sense do we blame her?   Given that Sher allows responsibility attributions for any deviation from the reasonable person caused by Alessandra’s causal systems, are we blaming her character?  Her action?  Her constitutive make up?  The mechanistic account of responsibility that Sher offers seems to me to be a far cry from what criminal law ought to care about.  In addition, Sher relies on causal mechanisms and moves the analysis of negligence to an analysis quite on par with the free will/determinism debate.  Our analysis is shifted far back to reason responsiveness.  But there are questions here, too.  What explains the difference in how we treat mistakes of fact and mistakes of morality?  (Consider the difference in punishment between the actor with the “unreasonably” mistaken belief that the gun was not loaded and the “unreasonably” mistaken belief that murder is not wrong.)  Where does this leave us?  There is much work left to be done, but Sher certainly shines the searchlight on the where we ought to look for answers.

“Legal epistemology is ninety per cent quantitative. The other half is qualitative.” – Yogi Berra

Sep 15, 2010 Dan Markel

Dan Markel

The last couple years, I’ve developed a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I’ve not met before, but whose recent work ought to be pressing the criminal justice commentariat to re-think a lot of common assumptions when we talk about trade-offs in the criminal justice system between Type I errors (false convictions) and Type II errors (wrongful acquittals or non-convictions of factually guilty persons).

In particular, the work Laudan’s been doing with Ronald J. Allen (Northwestern) is evidence of toil along the same rich vein of material earlier espied by UVA’s Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the controversial Sunstein-Vermeule death penalty paper from a few years back. Here’s a very short introduction to Laudan’s intellectual agenda that he put up entitled “The elementary epistemic arithmetic of criminal justice.” But in this JOTWELL review, I advert your attention to two pieces Laudan wrote with Allen. The first one, “Deadly Dilemmas,” is a sharp short essay written as part of a symposium at Texas Tech. A more recent paper, entitled “Deadly Dilemmas II: Bail and Crime,” extends to the realm of pretrial release the framework of looking at procedural rules and their real-world costs and tradeoffs. By advocating a more restrictive approach to pretrial release, this second paper also suggests a practical and “modest” proposal to our policies across the country in order to bring down the moral costs of so many possibly preventable serious crimes.

The core of their work is to show us with greater precision what we are doing when we consider risk-risk tradeoffs in the rules of evidence and criminal procedure. Many people think these tradeoffs should be done to minimize Type I errors of mistaken punishment. For example, we all teach our students in criminal law about Blackstone’s maxim, ie., that it is purportedly better that N guilty (e.g. 10) persons go free to save an innocent person from wrongful punishment. But as Allen and Laudan carefully show, Blackstone’s maxim alone is radically insufficient as a guide for policy design. While Blackstone’s maxim is consistent with accurate results in any set of 100 cases, it is also consistent with mistakes in 99 out of 100 cases. What? Yes: “imagine that there are 9 wrongful convictions out of every 100 cases that go to trial and that to ensure the number goes no higher the system is structured to generate the requisite 90 wrongful acquittals. In that case, a perfectly Blackstone compliant system generates mistakes in 99 out of 100 cases that go to trial.”

Now it’s true that few people look to Blackstone as the principal architect for our current institutions, but it’s not well recognized what the costs of our commitments to Type I error reduction are. And in this respect, Laudan and Allen try to provide some sense of what those costs are to average citizens, especially in the context of serious crimes (those involving homicide, rape, aggravated battery and armed robbery). Based on some earlier figures, they write that “the chance of being wrongfully convicted of a serious crime over one’s lifetime hovers at most around 0.25% whereas the chance of being the victim of a serious crime over one’s lifetime is somewhere around eighty-three percent… This does not require that one think the two [risks] are equally harmful; it requires only thinking that being a victim of a wrongful conviction is not 332 times as bad as being a victim of a serious crime. Perhaps it is better to be brutally raped or beaten than to be wrongfully convicted of doing so, but we doubt many would think it better to be brutally raped or beaten 332 times rather than wrongly convicted once.”

Even though Laudan and Allen arrive at these numbers with what they regard as conservative estimates, some scholars will disagree with the basis for these numbers. I’m not sure if they are within the correct order of magnitude but they seem plausible enough to start a conversation. And once we’re wearing our social planner hat, trying to figure out how to balance these competing risks, it is indisputably useful to have a good sense of what these competing risks are. Laudan and Allen provide some good reasons for thinking that we should not (legislatively or constitutionally) enshrine rules that focus inexorably on “innocentrism.”

But who are Laudan and Allen writing for? I dare say I think it’s for legal academics (and perhaps journalists) prone to focus on the visible Type I errors. After all, as one friend of mine noted, it’s not as if crime control is a dead topic among policymakers: over the last forty years, we’ve seen significant if not staggering amounts of resources devoted to investigation, enforcement, and incapacitation. And while arguments persist regarding whether these social investments caused or (even) co-incided with the substantial crime drops over the last few decades, there is certainly no public clamoring for heightened criminal procedural protections – especially outside the death penalty context. To be clear, that doesn’t undercut the significance of the intervention I think Allen and Laudan are making — hence my desire to promote their work via JOTWELL. But my sense is that there are at least two areas that could benefit from some discussion or amplification.

First, Allen & Laudan’s number-crunching and guesstimating don’t seem especially sensitive to the distributive patterns of these competing risks of being a victim of a Type I error or a Type II error. Perhaps, in light of the prevalence of intra-racial crime, there’s some story that might justify this silence. After all, if it turns out that the average person of color in the inner-city faces a far greater likelihood of being the victim of a serious crime than being falsely convicted of a serious crime, she might have good reason to see various criminal procedure and evidence rules shift in the direction Allen & Laudan propose. Something like this story seems to animate, for example, the support Professors Dan Kahan and Tracey Meares once gave to the idea of democratizing the rules of criminal procedure. On the other hand, if that story is not true, and in fact the benefits and burdens are not borne with rough equality, then something more needs to be said before we all embrace the direction of these prescriptions.

The other thing that needs further attention in these papers is the nature of the risk associated with the kind of crimes that one might endure as a victim. To my mind, the analysis in both papers is not quite sufficiently granular. For example, at times Allen & Laudan focus on the gravity of a Type II error by noting the probability that the person who benefits from that error will commit “serious crimes” subsequently. The problem is that not all “serious crimes” are equal, a point that they acknowledge but don’t take to heart fully. Their category of serious crime includes homicide and rape, but also armed robbery or aggravated assault. All of these crimes are serious and no one seeks out the chance to be the victim of any of these crimes. But if the comparison is between being false convicted of any of these crimes and being a victim of an armed robbery (which may not cause any physical harm) or an aggravated assault, well, I suspect maybe the suffering associated with being wrongly convicted can be far more lasting and difficult than that associated with being a victim of an armed robbery.

Whether it’s 332 times worse, I’m not sure, but I can well imagine that some would say they would rather have the reputation and experience of being a crime victim than that of being an alleged criminal. In other words, people might sooner suffer an aggravated assault or armed robbery than be falsely convicted of those particular “serious” crimes. Not because those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim’s perspective, likely to be short. If we are to credit the studies of hedonic adaptation, one can go about one’s life afterward, in many cases, relatively normally. By contrast, a false conviction for assault or armed robbery could be much more lasting in terms of duration, stigma or other hardships (including collateral consequences imposed by the state and the incidental but foreseeable consequences contingently imposed by third parties) placed upon the falsely convicted defendant.

Moreover, and just as a practical matter, persons who are repeatedly victimized by serious crime are likely to become “hardened targets” – they will adopt prevention measures (moving neighborhoods, staying indoors, carrying weapons) that are likely to displace the prospect of crime onto others who might not have been so repeatedly victimized.

To be sure, when looking at rape and homicide, many would properly view being victimized of those crimes as devastating, even if not identical to each other. But being falsely convicted of rape or murder would also be incredibly difficult to bear. So my sense is that the conclusions Laudan and Allen draw would be more powerful if we could isolate the nature of the risks being compared in a more particular way. What Laudan and Allen’s risk analysis should look at is the relevant risks associated with each of those crimes if we are to be persuaded both that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes, such as the sensible ones they propose in the context of pretrial release.

In any event, Laudan and Allen’s work is a bracing look at the trade-offs we are making but not examining closely enough—every teacher of criminal law and procedure should read and teach these pieces to their students, but they should be the beginning of the conversation, not the end. And to that effect, readers might also be interested in Michael Risinger’s response to these articles, entitled Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan.

P.S. The title’s phrase is not really Yogi Berra’s but Larry Laudan’s.

The False Promise of Retributive Proportionality

Jul 12, 2010 Aya Gruber

Aya Gruber

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

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

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

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

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

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

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

An Intriguing Thought Experiment on Culpability

Jun 10, 2010 Margareth Etienne

Margareth Etienne

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

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

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

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

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

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

The Return of Banishment: Punishment and Policing

May 24, 2010 Elizabeth Joh3 comments

Elizabeth Joh

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

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

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

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

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

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

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

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

The Beautiful Struggle: A Prosecutor’s Redemption Story

May 3, 2010 Mary Fan2 comments

Mary Fan

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

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

A Recovering Prosecutor

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

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

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

Criminal Justice, Indicted

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

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

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

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

The Beautiful Struggle

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

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

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

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

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

Government Dragnets

Apr 15, 2010 Christopher Slobogin

Christopher Slobogin

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

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

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

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

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

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

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

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

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

Going Rogue

Apr 1, 2010 Erin Murphy1 comment

Erin Murphy

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

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

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

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

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

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

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

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

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

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

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

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

Policing Beyond the Framing Era

Mar 25, 2010 Andrew Taslitz

Andrew Taslitz

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

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

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

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

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

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

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